particular affair in question. I am just informed, that the French
proprietor claims his vessel as retaken from pirates, offering to pay
a third of its value to the American privateer, which delivered it.
This is agreeable to the 10th article, under the title of _Prizes_, of
the ordinance of 1681, which appears justly applicable to this
particular case. If it should be found, that the Guernsey privateer
falls under the description of those pirates, whose depredations have
obliged his Majesty to order general reprisals, and that she has not
been furnished with new letters of marque, which the Court of London
did not grant before the month of August, to cruise against French
vessels, as appears from the declaration of the Captain of the
Isabella, this question will be necessarily submitted to the decision
of the tribunals; and I cannot do otherwise than see, that the most
prompt justice be rendered to the American privateer. I request, at
any rate, that you will be pleased to give me your opinion on the
principal question, taking for granted the different laws of the two
nations with respect to reprisals or rescues.
I have the honor to be, &c.
DE SARTINE.
* * * * *
TO M. DE SARTINE.
Passy, 17th September, 1778.
Sir,
We have this morning the honor of receiving your Excellency's letter
of the 16th, relative to the French brigantine, the Isabella, retaken
by the American privateer, the General Mifflin, from a Guernsey
privateer, after having been eight hours in his hands.
We have the honor to agree perfectly with your Excellency, in your
sentiments of the justice and policy of the principle of reciprocity
between the two nations, and that this principle requires that French
ships of war, or privateers, should have the same advantage in case
of prizes and recaptures, that the American privateers enjoy in
France.
We are so unfortunate, at present, as to have no copy of any of the
laws of the United States relative to such cases, and are not able to
recollect, with precision, the regulations in any of them. But we are
informed by Captain M'Neil, that by the law of Massachusetts Bay, if a
vessel is taken within twentyfour hours, one third goes to the
recaptors; after twentyfour hours until seventytwo hours, one half;
after seventytwo hours and before ninetysix hours, three quarters; and
after ninety six hours, the whole.
All that we have power to do in this case is, to convey to Congress a
copy of your Excellency's letter, and of our answer, and we have no
doubt but Congress will readily recommend to the several States to
make laws, giving to French privateers either the same advantages that
their own privateers have in such cases, in their own ports, or the
same advantages that the French privateers enjoy in the ports of this
kingdom in such cases, by the ordinance of the King. And we wish your
Excellency would signify to us, which would probably be most agreeable
to his Majesty. If the case of this vessel must come before the public
tribunal, upon the simple question, whether she was taken from a
pirate or not, that tribunal we doubt not will decide with
impartiality; but we cannot refrain from expressing to your
Excellency, that we think the original owner will be ill advised if he
should put himself to this trouble and expense.
We presume not to dispute the wisdom of the ordinance of the King,
which gives to the recaptor from a pirate only one third; because we
know not the species of pirates which was then in contemplation, nor
the motives of that regulation. But your Excellency will permit us to
observe, that this regulation is so different from the general
practice, and from the spirit of the laws of nations, that there is no
doubt it ought to receive a strict interpretation, and that it is
incumbent on the original proprietor to make it very evident, that the
first captor was a pirate.
In the case in question, the Guernsey privateer certainly had a
commission from the King of Great Britain, against American vessels at
least. But admitting, for argument's sake, that he had no commission
at all, the question arises, whether the two nations of France and
England are at war or not. And, although there has been no formal
declaration of war on either side, yet there seems to be little doubt
that the two nations have been at actual war, at least from the time
of the mutual recall of their Ambassadors, if not from the moment of
the British King's most warlike speech to his Parliament.
Now, if it is admitted that the two nations are at war, we believe it
would be without a precedent in the history of jurisprudence to
adjudge the subject of any nation to be guilty of piracy for an act of
hostility, committed at sea against the subject of another nation at
war. Such a principle, for what we see, would conclude all the
admirals and other officers of both nations guilty of the same
offence.
It is not the want of a commission, as we humbly conceive, that makes
a man guilty of piracy; but committing hostilities against human kind,
at least against a nation not at war.
Commissions are but one species of evidence that nations are at war.
But there are many other ways of proving the same thing.
Subjects and citizens, it is true, are forbidden by most civilized
nations to arm vessels for cruising against their enemies, without a
commission from the sovereign; but it is upon penalty, of confiscation
or some other, perhaps, milder punishment, not on the penalties of
piracy.
Moreover, perhaps, prizes made upon enemies by subjects or citizens,
without commission from their sovereigns, may belong to the
sovereigns, not to the captors, by the laws of most nations; but,
perhaps, no nation ever punished as pirates their own subjects or
citizens, for making a prize from an enemy without a commission.
We beg your Excellency's pardon for detaining you so long from objects
of more importance, and have the honor to be, &c.
B. FRANKLIN,
ARTHUR LEE,
JOHN ADAMS.
* * * * *
TO THE PRESIDENT OF CONGRESS.
Passy, 17th September, 1778.
Sir,
The last letter which we have had the honor to write jointly to
Congress, was of the 20th of July,[52] and as we have sent several
copies of it by different opportunities, we hope one of them, at
least, will get safe to hand. Since our last, there has been an
important action at sea, between two very powerful fleets, in which,
in our opinion, the French had a manifest and great advantage. But as
all the newspapers in Europe are full of this transaction, and we have
taken, in our separate capacities, every opportunity to transmit these
papers to Congress, we think it needless to be more particular
concerning that event in this letter.
The French fleet, on the 11th of last month, again put to sea, and on
the 22d Admiral Keppel sailed. By the best intelligence from London
the populace are amused, and the public funds are supported by hopes
given out, by administration of peace, by an acknowledgment of
American independency. But as the credulity of that nation has no
bounds, we can draw no inference from this general opinion, that such
is the intention of government. We suppose that rumor to be a
consequence of the mischievous determination of the Cabinet, to
propose independence on condition of a separate peace.
We are here, at this moment, in a state of the most anxious and
critical suspense, having heard nothing from Count d'Estaing, nor from
America, since the 11th of July.
Congress will be informed by Mr Arthur Lee, respecting the Court of
Spain.
We have taken measures in Amsterdam for borrowing money of the Dutch,
but what success we shall have we cannot yet say. We have also asked
leave of this government to borrow money in this kingdom, but having
no answer we cannot say whether we shall get permission or not. We
have yesterday applied for a continuation of the quarterly payment of
seven hundred and fifty thousand livres; what the answer will be we
know not; if it is in the negative, the consequence must be plain to
Congress and to us. It is at all times wisest and safest, both for the
representative and his constituent, to be candid, and we should think
ourselves criminal if we should disguise our just apprehensions.
Congress then will be pleased to be informed, that all the powers of
Europe are now armed or arming themselves by land or sea, or both, as
there seems to be a universal apprehension of a general war. Such is
the situation of European nations at least, that no one can arm itself
without borrowing money. Besides this, the Emperor and king of Prussia
are at actual war. All this together has produced this effect, that
France, England, the Emperor, Spain, Russia at least, are borrowing
money, and there is not one of them that we can learn, but offers
better interest than the United States have offered. There can be no
motive then but simple benevolence to lend to us.
Applications have been frequently made to us by Americans, who have
been some time abroad, to administer the oath of allegiance to the
United States, and to give them certificates that they have taken such
oaths. In three instances we have yielded to their importunity; in the
case of Mr Moore, of New Jersey, who has large property in the East
Indies, which he designs to transfer immediately to America,--in the
case of Mr Woodford, of Virginia, a brother of General Woodford, who
has been sometime in Italy, and means to return to America with his
property,--and yesterday, in the case of Mr Montgomery, of
Philadelphia, who is settled at Alicant, in Spain, but wishes to send
vessels and cargoes of his own property to America. We have given our
opinions to these gentlemen frankly, that such certificates are in
strictness legally void, because there is no act of Congress that
expressly gives us power to administer oaths. We have also given two
or three commissions by means of the blanks with which Congress
intrusted us, one to Mr Livingston, and one to Mr Amiel, to be
Lieutenants in the navy, and in these cases we have ventured to
administer the oaths of allegiance. We have also, in one instance,
administered the oath of secrecy to one of our Secretaries, and
perhaps it is necessary to administer such an oath, as well as that of
allegiance, to all persons whom we may be obliged in the extensive
correspondence we maintain to employ. We hope we shall not have the
disapprobation of Congress for what in this way has been done, but we
wish for explicit powers and instructions upon this head.
There are, among the multitude of Americans who are scattered about
the various parts of Europe, some, we hope many, who wish to take the
oath of allegiance, and to have some mode prescribed by which they may
be enabled to send their vessels and cargoes to America with safety
from their own friends, American men of war, and privateers. Will it
not be practicable for Congress to prescribe some mode of giving
registers of ships, some mode of evidence to ascertain the property of
cargoes, by which it might be made to appear to the cruisers and Court
of Admiralty, that the property belonged to Americans abroad? If
Congress should appoint Consuls, could not such power be given to
them, or would Congress empower their Commissioners or any others?
Several persons from England have applied to us to go to America; they
profess to be friends to liberty, to republics, to America; they wish
to take their lot with her, to take the oath of allegiance to the
States, and to go over with their property. We hope to have
instructions upon this head, and a mode pointed out for us to proceed
in.
In observance of our instructions to inquire into M. Holker's
authority, we waited on his Excellency, the Count de Vergennes,
presented him with an extract of the letter concerning him, and
requested to know what authority M. Holker had. His Excellency's
answer to us was, that he was surprised, for that M. Holker had no
verbal commission from the ministry; but that M. de Vergennes, being
informed that M. Holker was going to America, desired him to write to
him, from time to time, the state of things and the temper of the
people.
We have given orders to M. Bonfield, at Bordeaux, to ship to America
twentyeight 24 pounders, and twentyeight 18 pounders, according to our
instructions. By his answer to us it will take some little time,
perhaps two or three months, to get those cannon at a good rate, and
in good condition.
Our distance from Congress obliges us very often to act without
express instructions, upon points in which we should be very glad to
have their orders. One example of which is, the case of the American
prisoners in England. Numbers have been taken and confined in gaols;
others, especially masters of vessels, are set at liberty. We are told
there are five hundred yet in England. Many have escaped from their
prisons, who make their way to Paris, some by the way of Holland,
others by Dunkirk, and others by means of smuggling vessels in other
ports in this kingdom. They somehow get money to give gaolers in order
to escape, then they take up money in England, in Holland, in Dunkirk,
and elsewhere, to bear their expenses to Paris, then they apply to us
to pay their other expenses, and expenses to Nantes, Brest, and other
seaport towns. When arrived there, they apply to the American agent
for more money; besides this, bills of their drawing are brought to us
from Holland, and other places; all this makes a large branch of
expense. We have no orders to advance money in these cases, yet we
have ventured to advance considerable sums; but the demands that are
coming upon us from all quarters are likely to exceed so vastly all
our resources, that we must request positive directions whether we are
to advance money to any prisoners whatever. If to any, whether to
merchants, and seamen of private vessels, and to officers and crews of
privateers, as well as to officers and men in the Continental service.
We have taken unwearied pains, and have put the United States to very
considerable expense, in order to give satisfaction to these people,
but all we have done has not the effect; we are perpetually told of
discontented speeches, and we often receive peevish letters from these
persons in one place and another, that they are not treated with so
much respect as they expected, nor furnished with so much money as
they wanted. We should not regard these reflections if we had the
orders of Congress.
We have the honor to be, &c.
B. FRANKLIN,
ARTHUR LEE,
JOHN ADAMS.
FOOTNOTES:
[52] It is thus in the original, but it will have been seen, that
there are three short letters to Congress between July 20th and
September 17th.
* * * * *
M. NECKER TO THE COUNT DE VERGENNES.
Translation.
Paris, September 18th, 1778.
Sir,
I conclude from your note of the 5th instant, that the Commissioners
of the North American Congress have informed you, that there are many
Americans in England, and other parts of Europe, who, desirous of
returning to their country, have requested permission to transport
their effects through France, without being subjected to the payment
of duties.
Such an exemption would be contrary to all rule, and could only be
granted by means of passports, which would indemnify the public chest;
you will doubtless see that such is not the case here.
This favor, however, can be shown them. The transit regularly gives
occasion for a duty on the importation, and a second on the
exportation; only one of these shall be imposed; it shall be paid at
the office of entry; the effects shall be estimated at a very moderate
rate if they are not new; they shall then be transported with free
permits, and under seal, to secure them from new examinations on the
route, until they leave the kingdom. I think you will agree, that it
would not be possible to grant them more favorable terms. I beg you to
request the Commissioners to make known to us those Americans, for
whom this favor is requested, that I may give the necessary orders,
and prevent all abuses in this respect.
I have the honor to be, &c.
NECKER.
* * * * *
TO THE AMERICAN PRISONERS IN PLYMOUTH, OR ELSEWHERE IN GREAT BRITAIN.
Passy, September 20th, 1778.
Gentlemen,
Although we have not written to you directly for some time, you may be
assured we have not been unmindful of your interests, your comfort, or
your liberty. We have been engaged a long time in negotiating a cartel
of exchange. This work we found attended with many difficulties, but
at last have obtained assurances from England, that an exchange shall
take place. We have also obtained from the government of this
kingdom, a passport for a vessel to come from England to Nantes, or
L'Orient, with American prisoners, there to take in British prisoners
in exchange. We now sincerely hope that you will obtain your liberty.
We cannot certainly say, however, that all will be immediately
exchanged, because we fear we have not an equal number to be sent to
England. Those that remain, if any, will be those who have been the
latest in captivity, and consequently have suffered the least.
While the British government refused to make any agreement of
exchange, the Commissioners here never discouraged their countrymen
from escaping from the prisons in England, but on the contrary have
lent several sums of money, sufficient with great economy to bear
their expenses to some seaport, to such as have made their way hither.
But, if the British government should honorably keep their agreement
to make a regular exchange, we shall not think it consistent with the
honor of the United States to encourage such escapes, or to give any
assistance to such as shall escape. Such escapes, hereafter would have
a tendency to excite the British administration to depart from the
cartel, to treat the prisoners remaining with more rigor, and to
punish those that escape, if retaken, with more severity.
On the other hand, we have now obtained permission of this government
to put all British prisoners, whether taken by continental frigates or
by privateers, into the King's prisons, and we are determined to treat
such prisoners precisely as our countrymen are treated in England, to
give them the same allowance of provisions and accommodations and no
other. We, therefore, request you to inform us with exactness what
your allowance is from the government, that we may govern ourselves
accordingly.
We have the honor to be, with much respect and affection, your
countrymen and humble servants,
B. FRANKLIN,
ARTHUR LEE,
JOHN ADAMS.
* * * * *
M. DE SARTINE TO THE COMMISSIONERS.
Translation.
Versailles, September 21st, 1778.
Gentlemen,
I have had the honor of receiving your note of the 17th instant. I
have no doubt that my observations on the necessity of a perfect
reciprocity between the two nations, in regard to recaptures at sea,
appear to you just. I am sorry that you have not at hand a copy of the
laws of the United States relative to this subject. Many difficulties,
which the distance of the two countries may render very frequent,
might thus have been prevented. The laws of Massachusetts Bay,
referred to by Captain M'Neil, are different from those of England,
and somewhat resemble the French. The English regulations seem to be
more favorable to the interests of commerce, (which should never be
lost sight of even in war,) by allowing half of the vessel in all
cases to the original owner. But it is particularly important, that
the different States should adopt some uniform and permanent system in
regard to this subject, so that there may not be different regulations
for each State, which the ignorance of the commanders of privateers
will prevent them from applying to different circumstances, thus
giving rise to difficulties, which might be avoided by uniform
legislation.
With regard to the recapture of the Isabella by Captain M'Neil, I have
merely indicated to you the grounds on which the owners rested their
claims in their letter to me. It is not the province of the government
to examine them; that matter comes under the jurisdiction of the
courts; if their sentence should be unfavorable to the original
owners, you will certainly agree that a third, or even a half, of the
value of the vessel ought to be deposited in the hands of a public
officer appointed for that purpose, until the two nations shall agree
upon some reciprocal regulations concerning vessels recaptured from
the common enemy.
I have the honor to be, &c.
DE SARTINE.
* * * * *
M. DE SARTINE TO COUNT DE VERGENNES.
Translation.
Versailles, September 21st, 1778.
Sir,
I have had the honor to receive your note of the 5th instant,
informing me of the wish of the Commissioners of the United States of
North America to engage your good offices with the king, that the
necessary measures may be taken to fulfil his Majesty's engagements,
under the 8th article of the treaty of February 6th of the present
year, in reference to the Barbary Powers. I have examined the article,
and find that the king promised to employ his mediation, with the
Emperor of Morocco, and the other Barbary Powers, in order to provide
as fully as possible for the interest and security of the citizens of
the United States, and the protection of their vessels and effects
against all violence, insult, attacks, or depredations by the said
Barbary Powers or their subjects.
From the nature of this engagement, it appears to me proper to use all
means to comply with it, notwithstanding any difficulties which seem
to lie in the way; but before presenting any plan to his Majesty, it
seems to me necessary to inform him of the actual dispositions of the
United States, and of the measures they may deem desirable on the part
of France.
Do the United States wish to conclude treaties with the Barbary
Powers, or do they wish merely that our influence should be exerted to
make their flag respected by those powers? In the latter case we
should never succeed, or if we should obtain liberty of commerce for
the United States from some of them, it would be an illusory,
temporary, and precarious permission, and would infallibly expose us,
without being of the least benefit to the citizens of the United
States. The Algerines, in particular, would never acknowledge the flag
of the United States, unless it were made for their interests to do
so.
You know too well, Sir, the character of the Barbary States, and their
policy, to be ignorant of the inefficacy and dangers of such a
measure. It would probably be less difficult to induce them to
acknowledge the independence of the United States, and to conclude
treaties with this new power. It is necessary to know beforehand, what
are the instructions of the Commissioners, and whether they are
authorised to negotiate with the Barbary Powers, under the mediation
of France. If Congress has this intention, then I could receive the
orders of the king to give the Commissioners the information necessary
for entering upon a negotiation with the Barbary Powers, and we
should be able to concert effectual measures for succeeding in this
object, without exposing our own interests for those of the United
States. This negotiation will be long and arduous, but I will neglect
nothing to assure its success, if the Congress determine to prosecute
it, and you consider the king pledged to forward it. I shall wait for
your reply before making any overtures.
I have the honor to be, &c.
DE SARTINE.
* * * * *
TO THE PRESIDENT OF CONGRESS.
Passy, 22d September, 1778.
Sir,
This will be delivered to you by Mr Jonathan Loring Austin, who was
sent the last year express to France, with the news of the convention
of Saratoga. He has resided chiefly in this kingdom from that time,
and has been employed in the service of the public a part of the time,
and his behavior from first to last has given entire satisfaction to
us. We think it our duty, therefore, to recommend him to Congress as a
gentleman of merit, of ability and diligence in business, zealously
attached to the cause of his country, and of exemplary prudence and
decency.
We have the honor to be, &c.
B. FRANKLIN,
ARTHUR LEE,
JOHN ADAMS.
* * * * *
E. T. VAN BERCKEL TO M. DUMAS.
Translation.
Amsterdam, September 23d, 1778.
Sir,