ART. 1. The Parties put off to another time the discussion of Indemnities and of the above 3 Articles of the Treaties of 1778, which Treaties are, moreover, acknowledged and confirmed by these presents as well as the Consular Convention of 1788.

2. The Ships of the 2 Nations, and their Privateers accompanied by their Prizes, shall be treated in the respective Ports as those of the most favored Nation.

3. National Ships shall be restored or paid for.

4. The property of Individuals not yet tried shall be so according to the Treaty of Amity and Commerce of 1778, in consequence of which a Rôle d'Equipage shall not be exacted, nor any other proof which this Treaty could not exact.

C. P. C. FLEURIEU.

ROEDERER.

No. 49.-Extracts from the Journal of the American Plenipotentiaries. Paris, 24th September, 1800.

THESE Articles were discussed with the corresponding Articles in the Propositions of the American Ministers of the 13th of September; and it was agreed to meet, from day to day, until the business was finished.

The following Note was received from the Secretary of the French Legation:

4th Complementaire, Year 8. M. Pichon's compliments to Messrs. Davie and Ellsworth, and sends to them, herewith enclosed, Copies of the Articles settled. He has it in charge from the French Ministers to desire the American Envoys, if they see no impropriety, to communicate what they intend to propose further on the 4th principle of the Note, in order that the French Ministers may look to it until the next Conference, and that the debates, after dinner, may be the shorter.

If the American Ministers have no objection to this, and they are pleased to forward the Articles to M. Pichon, he will translate and communicate them to the French Minister, so that time may be spared, and business as much as possible forwarded.

Paris, 22nd September, 1800. The American Ministers present their compliments to M. Pichon, and readily comply with the Proposal in his obliging Note of yesterday. They will bring forward, as details, under their 4th Proposition, the XXIst, XXIInd, XXIIIrd, XXIVth, XXVth, XXVIth, and XXVIIIth Articles of their former Project, with some variation of the XXIInd and XXIIIrd, to adapt them to principles already agreed on. These Articles, it is presumed, cannot occupy much time, as they have been so long in the hands of the French Ministers, as they are principally drawn from the Treaty of 1778, and are only varied or enlarged to prevent a

1

repetition of abuses and misunderstanding. It will, also, be proposed to add to the XXIVth the following Clause:

"Nevertheless, it shall not be required to examine the Papers of Vessels convoyed by Vessels of War, but credence shall be given to the word of the Officer who shall conduct the Convoy ;" principally with a view to check West India Privateers till your Government shall be able to reduce them to obedience.

Paris, 23rd September, 1800. The American Ministers present their compliments to M. Pichon, and now send, agreeably to his request, the XXIIIrd Article of their former Project, varied agreeably to the intimation given in their Note to him of yesterday. He will have the goodness to present the Article to the French Ministers for their examination. It accommodates their views to subject Enemy goods in free bottoms, as soon after the Ratification as Papers can be furnished requisite to prevent great embarrassments. It concedes the principle they desire, while it so regulates the exercise of that principle as to render it less distressing to Neutral Commerce, and, of course, less injurious to France.

And, that Captures on light suspicions may be avoided, and injuries thence arising prevented, it is agreed, that, when one Party shall be engaged in War, and the other Party be neuter, the Ships of the Neutral Party, that is, such of them as have already left, or which, prior to the first day of May next, may leave the Ports of the Nation to which they belong, shall be furnished with Passports similar to those described in the Article, that it may appear thereby that the Ships really belong to the Citizens of the Neutral Party. They shall be valid for any number of Voyages, but shall be recalled every year, that is, if the Ship should return home within the space of a year. Such Ships being laden, are to be provided, not only with Passports, as abovementioned, but also with Certificates, similar to those described in the same Article, that so it may be known whether they carry any Contraband goods. No other Paper shall be required, any Usage or Ordinance to the contrary notwithstanding. And, if it shall not appear from the said Certificates that there are Contraband goods on board, the Ships shall be permitted to proceed on their Voyage: if it shall appear from the Certificates that there are Contraband goods on board any such Ship, and the Commander of the same shall offer to deliver them up, he shall, notwithstanding, be at liberty to proceed on his Voyage, unless the quantity of the Contraband goods shall be greater than can be conveniently received on board the Ships of War or Privateer, in which case, the Ship may be carried into Port for the delivery of the same.

With respect to Ships which shall leave the Ports of the Nation to which they belong, after the last day of April next, they shall be fur

nished with Passports as above mentioned, and if laden, shall be furnished with like Certificates as before mentioned, excepting that the Certificates shall also express to whom the Cargo belongs, and of what Nation, State, or Prince, the Owner is a Citizen or Subject, that so it may be known if there are Contraband or Enemy goods on board.

If any Ship, in the predicament first above mentioned, shall not be furnished with such Passports and Certificates as is above required for the same, such Case may be examined by a proper Judge or Tribunal, and if it shall be found from other Documents or Proofs, admissible by the usage of Nations, that the Ship belongs to the Citizens of the Neutral Party, it shall not be confiscated, but shall be released with her Cargo, (Contraband goods excepted,) and be permitted to proceed on her Voyage. And if any Ship, in the second predicament above mentioned, shall not be furnished with such Passports and Certificates as is above required for the same, such Case may be examined by a proper Judge or Tribunal, and if it shall be found from other Documents or Proofs admissible by the usage of Nations, that the Ship belongs to the Citizens of the Neutral Party, the same shall not be confiscated, but shall be released with her Cargo, (Contraband goods and such as shall be found to be Enemy goods excepted,) and be permitted to proceed on her Voyage.

The business was now conducted by Conference from day to day, until the 30th of September, when the Convention was finished under the title of a Provisional Treaty.

O. ELLSWORTH.

W. R. DAVIE.

W. V. MURRAY.

No. 50.-Extract from the Journal of the American Plenipotentiaries. Paris, 3rd October, 1800.

THE American Ministers finally, but with great reluctance, agreed to the signing in the form of the Treaty of 1778, and it was executed accordingly, dated October 2nd, [1800.] The French Ministers called this morning with the Treaties, proposing some alterations with regard to the style of the French Republic, and that the word "Provisional" should be stricken out in the name or description of the Treaty. The American Ministers availed themselves of this opportunity to resume their opposition to the admission in favor of the French language, and consented to the proposed alterations respecting the style of the French Government, and offered to change the term “Provisional Treaty" for that of Convention, on the condition that that part of the Treaty which respected the French language was stricken out; agreeing at the same time that a Clause might be inserted saving the right of both Nations, to which the French Ministers acceded without any further discussion.

6 Copies being now prepared as agreed to be amended, they were signed and sealed under the former date of the 30th of Sep

tember, (9 Vendemiaire,) 2 Copies were retained by the French Commissioners, 2 were left with Mr. Murray, and the other 2 were taken in charge by Mr. Ellsworth and Mr. Davie.

0. ELLSWORTH.

W. R. DAVIE.

W. V. MURRAY.

No. 51.-Mr. Murray to the Secretary of State.

(Extract.) Paris, 1st October, 1800. THIS will go by my Colleagues, Mr. Ellsworth and Mr. Davie, who probably will leave Paris in 2 days. They will inform you of the whole history of the Negotiation, which terminated last night in the Signature of a Provisional Treaty of Amity and Commerce. We were all profoundly convinced that, considering the relations of the 2 Countries, politically, the nature of our demands, the present state of France, and the state of things in Europe, it was our duty, and for the honor and interest of the Government and People of The United States, that we should agree to that Treaty, rather than make none.

As the Copy of our Journal was not completely ready, I have requested Mr. Davie to do me the favor of signing it with my name for me.

The Hon. John Marshall.

W. V. MURRAY.

No. 52.-The American Plenipotentiaries to the Secretary of State. Paris, 4th October, 1800.

SIR,

THE Undersigned have the honor to present to you a Journal of their proceedings, and a Convention in which those proceedings have terminated.*

The Claim of Indemnities brought forward by them was, early in the Negotiation, connected by the French Ministers with that of a restoration of Treaties, for the infractions of which the Indemnities were principally claimed. To obviate this embarrassment, which it had not been difficult to foresee, the American Ministers urged, in the spirit of their Instructions, that, those Treaties having been violated by one Party, and renounced by the other, a priority had attached in favor of the Treaty with Great Britain, who had, thereby, acquired an exclusive right for the introduction of Prizes; wherefore, that right could not be restored to France.

The argument was pressed, both by Notes and in Conferences, as long as there remained a hope of its utility, and until there appeared no alternative but to abandon Indemnities, or, as a mean of saving them, to renew, at least partially, the Treaty of Commerce. Whether in fact it could, or could not, be renewed consistently with good faith, then became a question for thorough investigation; in the course of which the following considerations occurred :—

1st. It is not a breach of faith to form a Treaty with one Nation inconsistent with an existing Treaty with another, it being well under

* See Martens. Vol. 7, Page 484.

stood that the prior Treaty prevails, and has the same operation as if the subsequent one were not formed; nor is it necessary or usual for a sub. sequent to make an express saving of the rights of a prior Treaty, the Law of Nations having made that saving as complete and effectual as it can be rendered. This rule of construction holds universally, except where the subsequent Treaty can have no operation but by violating the first; in which case, it will be taken for an agreement to come to a rupture with the Power with whom the first was formed.

2nd. Indeed, by a Clause in the XXVth Article of the British Treaty, it is provided "that while the Parties continue in amity, neither of them will in future make any Treaty that shall be inconsistent with that or the preceding Article;" which Articles contain, among other things, the exclusive right of introducing Prizes into the Ports of each other. If, however, the British be considered in the light of a prior Treaty, as it must be to raise a doubt, all its rights, as well those of a restrictive nature as others, would be saved of course, and none of them would, at any time or in any degree, be affected by the subsequent stipulation. The subsequent stipulation, in the case supposed, although it should give, in general terms, the right of introducing Prizes, would be understood with a limitation, that it was never to extend to a case in which Great Britain should be the Enemy.

3rd. The Instructions to the American Ministers authorized a renewal of the XVIIth Article of the Treaty of Commerce, if it should be necessary, though with a special saving, for 2 Articles of the British Treaty. That special saving, however, cannot be material, as the settled rule of construction would, without it, make a saving still more comprehensive.

4th. The renewal of the XVIIth Article of the Commercial Treaty is not conceived to be within the expression or design of the restraining Clause of the British Treaty, "not in future to make any Treaty that shall be inconsistent with," &c. To recognize a pre-existing Treaty which contains a stipulation inconsistent with, &c. is not to make a new or future Treaty containing such stipulation. To recognize the former Treaties, would be only to preserve or restore the state of things existing when the British Treaty was formed, and not to introduce a new state of things, which was, doubtless, the event intended to be guarded against. It would be only to do what is usually done in the termination of misunderstandings. We are not to presume, and much less is it expressed, that The United States and Great Britain meant to deprive themselves of the usual means of terminating National contests in which they might be involved. And the facility of terminating misunderstandings, by restoring things to their former condition, is not only so great, but so conformable to justice and so favorable to general tranquillity, that the Law of Nations will