P H I L A H E LJP H X 'A , TOSSDAYEVENING-, *Tranflated far ihe G AitTTt of the United StATES. FRENCH REPUBLIC. lEGisLATIVE BODY.- coVNZiL of five hundred. motion or oKDEk Bf Emm. PAsrokhr, On the present state of our political and com mercial relatiouswith the United States of North America. Sitting of tbs lli A'lr/Ji.lcr, <tb yeiir, ycth *Junt, T J<)"J• Representatives as the People, The Conftitntion has ordained, that war cannot be declared but upon the formal and neceflary proposal of the Executive Diredto ry ; but it has also ordained that the Legis lative Body has the sole supreme decision of this queftibn. The constitution has ordain ed, that in cafe of hostilities impending or commenced, of menaces or preparations of war, tgainft the French Republic, the Ex ecutive liireftory shall be bound to employ, forfthe defence of the state, the,means pla ced at its disposal; but it has at\ the fame ordained, that the Dire&cry (hall without delay give information thereof to the Legis lative Bcdy. Yet, there is a people to whom treaties unite us; and we do not know what is our political fituatlon with refpeft to them.-; On the one hand, the Executive Directory pafles dtcrees which are real aggreflions— declarations of war ; on the other, we fay (0 ourliclv#*,-war-does not exist ; for the Le gislative Body has not decteed it ; we ave not in the predicament of hostilities impend ing or commenced ; for the Legislative Bo dy has not been informed of it.- Can there fore the Executive Directory, at its plea sure, add to or violate treaties and laws ? If the general principles laid down upon this fubjedt by the Constitution require develope ment, does it not belong to the Legislative Body to -demand it .' Ought it not to be re membered that treaties are to nations what laws are to . the citizens ? The expression Punic faith, an expreflion invented perhaps by the jealousy of the Romans, yet tarriifhes, after twenty centuries, the country of Hail- : nibal. ' j A treaty concluded on the 6th of Febru- , ary 1778, unites, by the double tie of Bom meree and friend/hip, France and the Uni ted States of North America. This treaty • embraces fdfce articles, which I am obliged to cite ; because they have become the prctextfordivers decrees equally contrary to the constitution and to the laws. ARTICLE 11.. The most Christian king and the United j States, engage mutually not to grant any particular favour to other nations, in refpeft of commerce jnd navigation, which (hall not immediately become common to the | other party, who (hall enjoy the fame favor ' freely, if the conceflion was freely made, or on allowing the fame compensation, if the conceflion was conditional. ARTICLE XV, And that more effectual care may be tak en for, the security of the fubjefts and in habitants of both parties, that they fuffer no injury by the men of war or privateers of the other party, all the commanders of the fliips of his most Christian majesty and of the said United States, and all their fubje&s and inhabitants, shall be forbid doing any injury or damage to the other fide ; and if they aft to the contrary they shall he puniflied, and (hall moreover be bound to make fatisfaftion for all matter 6f damage, and the interest thereof, by repa ration, under the pain and obligation of their person and goods. ARTICLE XVI. All fliips and merchandizes of what na ture soever, which (hall be rescued out of the hands of any pirates or robbers on the high seas, (hall be brought into fomC port of either (late, and (hall be delivered to the of the officers of that port, in or T der to be restored entire to the true pro prietor, as soon as due and fui\ient proof (hall be made concerning the property thereof. ' ARTICLE XVII. It (hall be lawful for the fliips of war of either party, and privateers, freely to carry whithersoever they please, the (hips and goods taken from their enemies, without being obliged to pay any duty to,, the offi cers of the admiralty or any other judges ; iior shall such prizes be arretted or seized when they come, to and enter the ports of either party ; nor (hall the searchers or other officers of those places, search the fame, or make examination concerning the lawfulnefs of such prizes ; but they may hoist fail at any time and depart, and carry their prizes to the places expreflied in their commissions, which the commanders of such ' ships of war (hall be obliged to (hew : on the contrary, no (helter or refuge (hall be 1 given in their ports to such as (hall have ' made prize of the ftibje&s, people or pro perty of either of the parties ; but if fueh (hall come in, being forced by stress of weather, or the danger of the sea, all pro per means (hall be vigorously used, that ' thty go out and retire from thence as soon as possible. A RTICLE NXXIII. 1 It (hall be lawful for all and Angular the < fubje&s of the most Christian ju'ng, and the j citizens, people and inhabitants of the said ; United States, to fail with their (hips with all manner of liberty and security, no dif tin&ion being made who arc the proprietors of the merchandizes, laden thereon, from ; any port to the places of tho,fe who now j are or hereafter shall be at enmity with the most Christian king, or the United States. It shall likewise be lawful for the fubjefts and inhAitants aforefaid, to fail with the Ihips and merchandizes aforementioned, and to trade with the fame liberty and security from the places, ports and havens «f those who are enemies of party, withoift any oppflfitioii o"r disturbance what soever, not only direftly from the places of the enemy aforementioned to neutral places, but a'lfo from flue place belonging -tt> ait enemy, to another place bclo:igjr)g to an enemy, whether they be under the jurisdic tion of the fame prince, or under fevcral. And it is hereby stipulated, that free (hips shall also give a freedom to goods, and that every thing (hall be deemed to be free and' exempt which shall be found on board the (hips belonging to the fubje&s of either of the confederates, although the whole lad ing or any.part thereof (hould appertain to the enemies of either, contraband goods being always excepted. It is also agreed in like manner, that the fame liberty be extended, to persons who are on board a free (hip, with this effeft, that although they be enemies to both or either party, they are Mot to be taken out of that free (hip, unless they are soldiers and in adlual service of the enemy. ARTICLE XXV. To the end that all manucr of diflentlons '. and quarrels may be avoided and prevented, on and the other, it is agreed, that j in cafe either of the parties hereto (hould be engaged in war, the (hips and veflels be j longing to the fubje£ts or people of the ' other ally, must be furnilhed with sea let ters or passports, expressing the name, pro •perty and bulk of the fhjp, as also the name and place of habitation of the matter or i commander of the said (hip, that if may I appear thereby that the (hip really and truly belongs to the fubjefts of one of the par ties, which paflport (hall be made out and granted according to the form annexed to j this treaty; they (hall likewise be recalled every year, that is, if the (hip happens to . return home within the space of a year. : It is likewise agreed, that fuclx fliips being | laden are to be provided not only with pafTports as mentioned, but also with cytificates containing the several particulars of the cargo, the place whence the (hip failed, and whither (he ii bound, that so it may be known whether aoy forbidden or contraband goods be on board the fame ; which certificates (hall be made out by the officers of the place whence the (hip set fail, in the accustomed form ; and if any one (hall think it fit or advisable to express in : the said certificates, the person to whom j the goods on board belong,' he may freely , do so. ARTICLE XXVII. If "the (hips of the faiff-fubje&s, people • or inhabitants of either of the parties (hall be met with, either failing along the coasts or on the high seas, by any (hip of war of . the other, or by any privateers, the said (hips of war or privateers, for the avoiding of any disorder, (hall remain out of cannon (hot, and may fend their boats aboard the merchant (hip which they /hall so meet with, and may enter her to the number of two or three men only, to whom the master or I commander of such (hip or vefTel (hall exhi | bit his pa(Tport concerning the property of the (hip, made out according to the form inserted in this present treaty, and th<- (hip, when (he (hall have (hewed such paflport, (hall be free and at liberty to pursue her voyage, so as It. (hall not be lawful to molest or search her in any manner, or to give her chafe, or force her to quit her intended course. Let me now present the decree palled by the Executive Directory, the 12th Ventofe, sth year, (2d March 1797.) "Article I. The commifiionersof the ex-' ecutive dire&ory, to the civil tribunals of the departments, shall take care, that in disputes concerning the validity of maritime captures, no judgment (hall be rendered upon the 7th article of the law of the 13th Nivofe, 3d year, without firft consulting the minister of justice, conformably with the 3d article of the law of the Bth Floreal, xth year, rela tive to treaties, in virtue of which, neutrals may claim an exemption, in confequenec of the firft of those laws, from the execution of that of the 9th of May, 1793. " Art. 11. The minister of juftiec (hall, in consequence, examine whether the treaties referred to,yet subsist, or whether they have been modified finee their conclusion. The minister of foreign affairs shall furnifh him for this purpose, with all the information he may (land in need of, and the former (hall refer the matter to the executive direftory, in the manner preferibed by the law of the Bth Floreal, 4th year. " Art. 111. The executive dire&ory re minds all Fresch citizens, that the treaty made on the 6th February, 1778, between France and the United States of America, has been, according to the terms of its se cond article, modified of full right by that concluded at London, on the 19th Novem ber, 1794., between the United States of America and England. " Consequently, " 1 ft. Agreeably to the 17 th article of the treaty of London of the 19th of November, 1794, tranferibed below (1) all merchan. dize to the enemy, or not fuffici ently appearing to be neutral, laden under, the American flag, (hall be confifcated ; but the veflel on board of which it (hall be found, (hall be released and restored to the owner. The commifTaries of the executive dircftory (1) ARTICLE XVII. It is agreed, that in all cases where vessels (hall be captured or detained on just suspici on of having on board enemy's property, or of carrying to the enemy any of the articles which are contraband of War j the said veflel (hall be brought to the tieareft or most con venient port ; and if any property of an ene my (heuld be found on board such veflel, that part only which belongs to the enemy (hould be made prize, aud the veflel. shall be at liberty to proceed with the remainder without any impediment. And it is agreed, that all proper measures (hall be taken to prevent delay, 111 deciding the cases of (hips or cargoes so brought in for adjudication ; and in the payntent or recovery of any in demnification, adjudged or agreed to be paid tp the mafter# or owners of such (hips. are enjoined to accelerate judgment on liti gations which may itrife cither concerning the validity of the capture of cargoes or coij, cerning the freights and detentioas, by all the means in their power. " 2d. Agreeably to the 18th article of the treaty of London, of the 19th Novem ber, 1794, tranferibed below (2) to the articles de<Jared contraband by the 24th ar ticle of the treaty of the 6th February, 17781 the following are added : Timber for ship building, Tar, *pitch and rosin, .Copper in sheets, ' Sails, hemp and cordage, And every thfngferving direCtly *or indircß lyfor the armament or equipment of vefTels, un- Wrought iron and fir planks excepted. These various articles (hall be confifcated as often as they fh&Il be destined, or as it shall be at tempted to calxy them to the enemy. " 3 1 '- Agreeably to the 21ft article, of the treaty of London of the 19th Novem ber, 1794* tranferibed below (3) every in dividual known to be American, bearing a commifliorj given by the enemies of France, as also every sailor of that nation, making part' of the Tew of the (hips or veflels of the enemy, (hall be, on that account alone, de clared a pirate and treated as such, without being permitted, in any cafe, to alledge that he was forced to it by violence, menaces, or otherwise. " Art. 4th. Conformably to the law of the 14th February, 1793» the provisions of the regulations of the 21ft October, 1744, and of the 26th July, 1778, concerning the manner of proving the property of neutral (hips or goods, shall be executed according to their form and tenor.: " Consequently, every American veflel, not having onTjoard a r6l« d'equipage in due form as prefepbed by the model annexed to the treaty of the 6th February, 1778, the execution of which is ordered by the 25th and 27th articles of the fame treaty, (hall be good prize*." Let us in jhe place attend to the firft article. The Directory refers to the 3d article of the law of the Bth Floreal, 4th year ; but in referring to it, it adds to its 1 provisions. The law of the Bth Floreal gives a power : the decree of the 12th ven tofe imposes an obligation. It declares, " the commifTaries (hall take care, that no ! judgment jbe rendered, without the minister of justice being firft consulted." /Whereas the law only declares, in the 2d and 3d ar ticles, that " matters of. prize, in which neutrals have any interest, shall be commu nicated to the commiflary of the executive direftory, within 24 hours from the filing * These words are not contained in the British treaty. (2) ARTICLE XVIIL In order to regulate what is in future to be esteemed contraband of war, it is agreed, that under the said .denomination (hall be comprifcd all arms and implements- serving for the purposes of war, by land or sea, such as cannon, mu(kets, mortars, petards, bombs, grenades, carcases, faucifles, carriages for cannon, mu(ket rests, bandoliers, gun-pow der, match, faltpewe, bait, pikes, swords, head-pieces, cuiraflei, halberts, lances, jave lins, horfe-fnrniture, liolfters, belts, and generally all other implements of war; as also timber for (hip-building, tar or rozin, copper jn fhcets, fails, hemp, and cordage, and generally whatever may serve direCtfy to the equipment of veifels, unwrought iron and fir planks only excepted ; and all the a bove articles are hereby declared to be just obje&s of confiscation, whenever they are attempted' to be carried to an enemy. 1 And whereas the difficulty of agreeing on 1 the precise cases, in which alone provisions j and other articles not generally contraband may be regarded as such, renders it expedi ent to provide against the inconveniences and j misunderstandings which might thence arise: It is further agreed, that whenever any such , articles so becoming contraband, according ! to the existing laws of nations, shall for that reafou be seized, the fame shall not be con fifcated, but the owners thereof shall be fpeedfly and completely indemnified ; and the captors, or in their default, the go vernment under whose authority they aft, (hall pay to the mhtters or owners of such veflels, the full value of all fuclt articles, with a reasonable mercantile profit thereon, together with the freight, and also the de murrage incident to such detention. And whereas it frequently happens that veflels fail for a port or place belonging to an enemy, without knowing that the fame is either besieged, blockaded or inverted ; it is agreed, that every vefliel so circutnftanced, may be turned away from such port or place, but (he (hall not be detained, and her cargo, if not contraband, be confifcated, unless af ter notice (he shall again attempt to enter ; but (he (hall be permitted to go to any other port or place (he may think proper : Nor (hall any vefliel or goods of either party, that may have entered into such port or place, before the fame was besieged, blockaded, or invested by the other, and be found therein after the reduction or surrender of such place, be liable to confifaation, but (hall b'e restored to the owners or proprietors thereof. (3) ARTICLE XXI. It is likewise agreed, that the subjeCts and citizens of the two nations,' (hall not do any aCts of hoSiUty or violence against each other, nor eceept commiflions or instruCtions so to art from any foreign prince or state, enemies to the other party; nor shall the enemies of one of parties be permitted to invite or endeavor to enlist in thiir milita ry service, any of the subjeCts or citizens of tjie other party ; and the laws against all iuch offences and aggressions shall be punctu ally executed. And if any subject or citi zen of the said parties respeCtively, (hall ac cept any foreign commission, or letters of marque, for arming any vessel to aCt as a pri vateer against the other party, and be taken by the other party, it is hereby declared to be lawful f<w the said party, to treat and punilh the said subjeCt or citizen, having such comnaiffion or letters of marque, as a pirat*. ' of the papers in the regiftiy of the tribunal." " If the commifTary deems it nectjfary, he (hall immediately referittothe minifterof jus tice, who, after -having confuked the direc tory, shall within a decade, answer the letter of the commifTary." The law expressly determined to avoid the absolute obligation of a reference in all cas es ; it determined it in order thar it might not multiply the expenses and delays al ways too heavy, always too long for those who come to ask for j.iftiee. The decree of the 12th Ventofe, on the contrary, imposes it as an indifpenfible necessity. The decree then is in contradiction to the law: it. is therefore in itfelf a real legislative act : it is then an iifurpation of a power which the will of the people has riot delegated to the directory ; and is therefore uncoHfti tutional. The minister of justice is to be consulted in relation to treaties in virtue of which neu trals clam an exemption, by the law of the 13th Nivofe, 3d year, fro,m the execution of that df the 9th May 1793. Let us firft turn our attention to these two laws. That of the 13th Nivofe, Aug. 7, fays : " The national convention enjoins all the agents of the republic, all the commander! of the armed force, the officers civil and mi litary, to cause toberefpeCtedand observed all the provisions of the treaties which unite France to the neutral powers of the old con tinent and to the United States of America. No infraction of those treaties (hall be made. All provisions which are contrary to them, are annulled." The following is the law of the 9th May 1793-. Article I. " The French vrfTels of war ' and privateers (hall stop and bring into the | ports of the republic, neutral Veafels which | may be foijnd laden in whole or in part, ei ther with provifionsbelonging to neutral pow ers and bound to enemy ports, or with mer chandize belonging to enemies. " Art. 2. Merchandize belonging to e nemieS is declared good prize, and confiscat ed for the benefit of the captors. Provi | lions belonging to neutrals (hall be paid for at their value in the place for which they deftined. " Art. 3. In all cases, neutral vefTels (hall be released as soon as the unlading of; the provisions detained, or the merchandize j seized, (hall be effefted. The freight for them (hall be paid at the price stipulated by the (hippers. A just indemnity (hall be granted in proportion to their detention, by 1 the tribunals who have cognizance of the validity of prizes." The law ofthe9thMay 1793, was repealed onthe 2 jdofMay following, on thereportand 1 request of the committee of public fafety, ; so far as concerned the United States. Five days afterwards, on the 28th of the fame month, the national Convention, on the mo tion of one of its members, abrogated the repeal, decreed that merchandize detained Tiouid CL'.itinue proviflpnally sequestrated, and that the united committees of public fafety and of marine (hould make a defini tive report to them irf three dsys. This report was only made on the Ift of July following ; but it confirmed the ex ceptfbn pronounced by the decree of tbt 23d of May, in favor of the United States. Of what consequence is it, said the reporter, that your privateers have cruized unfuccefs fully ? If we (lipulate for the interdt of privateers, doubtless we (hall take no par-1 ticular notice of a faithful ally ; but when we (lipulate for treaties, for the public faith, we (hould not put into the balance with these interests the produce of a few captures of provisions. The law of the ift July 1793, is thus ex prefled : " The national convention, wishing to maintain the union eftablilhed between the French republic and the United States of America, decrees, that the veflels of the U nited States are not comprehended in the provisions of the decree of the 9th May j conformably to the.l6th article of the trea ty concluded onthe 6th Feb. 1778*" On the 27th of the fame month, the fol lowing decree was made : " The national convention, after having heard the report of its committee of marine, upon the petition of the owners and crew of : the privateer the Sans Culotte tie Honflevr, \ praying that the decree of May last may be maintained, decrees, that it main tains the provisions of the decree of the 9th of lad May, relative to neutral veflels laden with provifious or merchandize belonging to ! enemy powers ; that it (hall have its full and complete execution ; and that confer j quently all other provisions which may be ; to the contrary are and shall be repealed;" I Let us recapitulate th fe different laws, let us combine them together ; let us fee what is their result, what is consequently, in relation to the Americans, the state of the French legislation upon the subjeCt of prizes. The law of the 9th May 1793, is the old est : how shall it be reconciled with the 23d article 6f the treaty of 1778 ? The 23d artiele permits the French and the inhabitants of the United States freely and fafcly to frequent the ports belonging to« poWer in enmity with the two contract ing parties or one of-them ; it not only permits a direCt commerce from an enemy pott to a neutral port, but even from one enemy port to another; it adjudges'free and guarantees all merchandize found on ; board of vefTels of one >»f the two contraCt- j ing parties, and this, when the cargo belongs ! in whole or in part" to enemies of one of the two ; contraband alone excepted. What in the mean time fays the law of the 9th May 1793 authorizes French (hips of war and privateers to stop and bring into our ports neutral vefleU laden with provisions for an enemy pojt, or with merchandize belonging" to an enemy, and declares this merchandize to be confifcated for the benefit of the captore. The United States of America were not nairted in the law > nevertheless, as its pro- ■ visions are general, it was impoflible sot to j comprehend them in It. The cfecree of the 23d May and ill July 1793; pronounces m their favor an exception at ogee just and conformable wish the treaty of the 6th Feb. 1778. It is pretended, that the decree of the 27th of the fame month repeals it. 1 am far from thinking so ; no expression ma nifefts it ; and in faft is it to be prefumcd, that without the smallest diflcuffion (the newspapers of that period do not even men tion that the decree was proposed and pair ed) a law was repealed, which been made some \Yeeks before) made after, a pub lic opposition, after a frefh consideration twice adopted?"always at the request of the committee of public fafety, and enafted ex pressly to-prevent the Americans being com prehended in the law of the 9th of May '93. Howsoever it might be, the doubt, if there exitteu a legitimate doubt, could not lad longer than the 2d month of the 2d year. For a law of the 27th Brumaire fays : " Art. 2. The treaties which bind France to the United States of America (hall be faithfully executed." " Art 5. The committee of public fafe ty is charged to take measures for drawing closer thi* bands of alliance and friendfhip which unite the French republic to the U nited States of America." Behold ! what the national convention declared, what it desired, even at the period when perjuries and crimes'predominated ! It exprefled the fame fentfment after the down fall of decemviral tyranny. The 7th arti cle of the decree of the 13th Nivofe, 3d year, effeftually renews the injunction upon the ci-« vil and military officers to cause to be ref pefted and observed all the provisions of the ; treaties between France and the United States. Have thele two laws been since re-* pealed? they have not. Supposing then that the decree of the gth of May 1793 had recovered its force with respect to North America, it loft ft again. And how ihen is it pofllble to iriragine that the executive directory should found themselves upon it ? How imagine that the minister of jnftice Could prevent the execution of a law in force, and direst the execution of one re pealed ? The 2d article of the decree of the 12th Ventofe charges the minister ofjuftice to ex amine whether treaties, which came in ques tion, yet subsist, or whether they have been modified since their conclusion. Wc are in the firft place aftanifhtd, Avhen treaties between two powers are in qi:ertion,\ that the direftory should address itfelf to the minister justice. The examination, the maintenance, the execution of "treaties, belong, by the nature of things, te the min ister of foreign affairs ; and the law of the | 10th Vendemaire, 4th year, contains au ex press provision for that purpose. I never theless conceive, that the question being con sidered in relation to prizes, a fubjeft of ju dicial cognizance, the direftory should ap ply to the minister ofjuftice. But at least it should not charge' him exclusively and without limitation with the examination, whether treaties yet subsist they have been modified. A treaty, moreover, is not the aft and the property of one nation only ; it belongs to the two nations who have fubferibed it ; the confer* of both is neceiTary to destroy it. If one of them thinks the other has violated it, it may complain of .it: it may, it ought to declare to the other, that it re gards such or such an aft as an infringement of the mutual agreement, a commencement of hostilities ; but until then, until the mo ment when the rupture is announced by a refufal to explain, or an unjust explanation of the party complained against, the trea-- ty remains a common' and reciprocal lav for the two states ; it must be obeyed or/war declared. I know what will be answered. The treaty, it will be said, was firft violated bj the Americans : should we then be more faithful than themselves ? I know not whether this reproach, tak ' ing it to be true, obviates the remarks I have made ; and as I little know to what extent such an excuse is proper. If I should ad mit, in the mean time, the validity of. the' excuse and the precise application of the reproach, the truth of the infraftion with which the United States of America is char ged, would still remain to be proved. The' 3d article of the decree of the 12th ventofe declares the treaty of 17 78to be mo dified of full right by that of 1794. The treaty of 1778 fays, article 2d: "France and America engage not, to grant any par ticular favor to other nations, in refpeft of commerce and navigation, which shall not immediately become common to the other, party." What then is the modification pro duced in this article by the treaty of the 19th November, 1794 ? It is, fays the decree, in the 17th article which direfts the confifcation of all enemy merchandize, or such as does not fufficiently appear to be neutral, laden under the Ame rican flag. There never was a maritime war which did not induce difcuflions on the fubjeft of prize, between the contending aud the neu tral powers. The principles of different nations have not always been uniform in this refpeft : yet there is one of them which is more generul, and which the law of na tions does not disavow : it is, to take ene my's property 011 board of neutral veflels, and to rellore neutral property- fo)ind on board enemy 'rcte. » Such was always the fyitem of England. The United States, who, until then, had no treaty of commerce with her, severely felt the evil of their veflels being flopped and even detained, when in she end they must be restored. I suppose that this consideration diftated the 17th article of the treaty of 1794 : but how then does it modify the 2d article of the treaty of the 6thFeb. 1778 ? Where then is the particular favour it grantstotheEnglifh ? The decree of the 12th ventofe afterwards adds to the Catalogue of contraband.articles mentioned in the 24th article of the treaty made in 1778 between -France and NorUi America, Lv. ..
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