Part 24

7thly. The Court, being desirous to acquaint Congress exactly with the state of affairs relating to the common cause, would not delay to inform this honorable body, that the Court of London, showing on one side dispositions to a reconciliation with France, rejects on the other side the very idea of a formal and explicit acknowledgment of the independence of the United States, which his Most Christian Majesty perseveres to hold up as a preliminary and essential condition. The behavior of the common enemy in this respect rendered a great deal more probable the conjecture, which was communicated to Congress some time ago, that the point of honor and pride of the King of England will be the greatest obstacle to the conclusion of peace upon those explicit terms; and perhaps the manner of overcoming this difficulty will of course become the most decisive object of the deliberations of Congress, when this honorable body shall determine to make peace, whatever middle way may be hit upon, that England shall treat with the United States as with a free people, and evacuate immediately all the territories belonging to them.

NO. II.

_The Substance of what the Minister said at the Conference in explanation of the several Articles in the foregoing Paper, entitled "ad statum legendi," as reported by the Committee._

ARTICLE 1. From the bills and accounts with which Congress have been furnished by M. de Beaumarchais, Congress will be enabled to distinguish those articles which were drawn from the royal magazines, and those which he supplied in the way of trade. For these last, Congress will without doubt make remittances to M. de Beaumarchais in their own way, to enable him to perform the contracts he has entered into as a merchant. That for the former articles, the King, his master, taking upon himself to be creditor to the United States, would wait until Congress shall find it convenient to make compensation.

ARTICLE 2. Though his Court had not resolved to retaliate upon the prisoners taken by the common enemy, yet for the reasons assigned, the King, his master, had assented to the proposal. But in carrying this matter into execution it would be proper to take such precautions, and to give such orders to the Captains, or other persons employed in this business, that it may be managed with prudence.

ARTICLE 3. There is every reason to believe, that Congress will very soon receive proofs of the confidence, which his Court was always willing to show to the servants of these States. The personal character of Dr Franklin will enable the Court to act with a frankness becoming the alliance, and they will have no occasion to withhold any more the secrets which may interest the United States and the alliance.

ARTICLE 4. The King, his master, after this explicit step, relies with the highest confidence upon the candor and faithfulness of Congress, in understanding as well as in executing the treaty, and in rejecting every arbitrary and unnatural interposition or construction, which false, subtle, or designing men can contrive. Congress by their own feelings must be sensible, that such interpretations and constructions are always hurtful, against common decency and dignity, and may oftentimes endanger mutual confidence, and of course the very existence of a treaty. But the sense Congress has manifested in this particular affair gives his Court the greatest hopes, that there will be no further motive for the painful reflections, which that affair gave rise to.

ARTICLE 5. He begged leave to add, that this publication interfered with the situation of affairs in Europe, and was in a certain degree disadvantageous to the common cause, because it gave the common enemy a full knowledge of our system, and our mutual engagements, without procuring us any reason to guess at their views and resolutions. Happily these inconveniences have not been felt, and ample compensation has been obtained by convincing the people of America, not only that the treaty was just and equal, but that the heavy task which France had taken upon her was magnanimous, gratuitous and without reward. The whole world was at the same time convinced, that war, conquest, and ambition, were not the objects of the alliance, nor of any of the allies, but only the peaceable enjoyment of the sovereignty, liberty, security, and independence of these United States. And this conviction gave much honor, credit, and consideration to the alliance.

ARTICLE 6. On this he observed, that he had endeavored since last fall, by order of his Court, to impress upon every mind, that England will never evacuate New York willingly, and could only be brought by proper exertions on the part of America to think seriously of granting independence. He believed that Congress had adopted a system so conformable to their engagements and to the situation of affairs, his Court was better informed than he was. But without reflecting on past events, the King hopes, that his amicable apprehensions will be overcome by the success of the campaign; that henceforth the United States will follow the example set them by his Majesty, and that they will exert themselves in their own cause, as his Majesty exerts himself for their sakes and in their cause, which he has adopted.

ARTICLE 7. He said he was authorised to tell Congress in confidence, that this reflection is the result of the observations which the Court of Spain made upon the conduct of England throughout her negotiation of mediation; that the British Ministry seem to be solicitous to be reconciled with France, and to keep up this negotiation; that from thence probable hopes may be entertained of their internal disposition to peace, but at the same time they reject with haughtiness the formal acknowledgment of the independence insisted on by France and Spain. New orders have been given to the Spanish Ambassador at London, to ascertain as nearly as possible those dispositions. In these circumstances, the King, his master, ordered him to communicate this intelligence to the United States, that they may, if they think proper, take under consideration, if it would not be expedient to give their Plenipotentiary instructions and full powers, founded upon the necessity of the conjuncture and upon the treaty of alliance, the express and formal terms of which are, that peace shall not be made without an express or tacit acknowledgment of the sovereignty, and, consequently, and _à fortiori_, of the rights inherent in sovereignty, as well as of the independency of the United States in matters of government and of commerce.

This substantial alternative in an engagement, which is a mere gratuitous gift, without any compensation or stipulation, ought, indeed, never to be forgotten in a negotiation for peace. France foresaw the extreme difficulties, which a formal and explicit acknowledgment might meet with. She knew by her own experience in similar contests, in which she has been deeply concerned, respecting the Republics of Holland, Genoa, and the Swiss cantons, how tenacious monarchs are, and how repugnant to pronounce the humiliating _formula_. It was only obtained for Holland _tacitly_, after a war of thirty years, and _explicitly_ after a resistance of seventy. To this day, Genoa and the Swiss cantons have obtained no renunciation or acknowledgment, either tacit or formal, from their former sovereigns. But they enjoy their sovereignty and independence only under the guarantee of France. His Court thought it important to provide, that difficulties of this nature, which consist merely in words, should not delay or prevent America from enjoying the thing itself.

From these considerations arose the very important and explicit stipulation in the treaty, which he just now mentioned, and which has received the sanction of the United States. The circumstances seem such as call for the application of the alternative of tacit or explicit acknowledgement. All these considerations are adduced, that Congress may, if they think proper, consider whether the literal execution of the treaty in this point is not become necessary, and whether the safety and happiness of the American people, as well as the essential principles of the alliance, are not intimately connected with the resolutions that may be taken on this subject. And it remains with the prudence of Congress to examine, whether instructions upon some particular conditions may not frustrate the salutary purpose of the treaty of alliance, relative to a tacit acknowledgment which the situation of affairs may require.

In thus executing, continued he, the orders I have received, I cannot omit observing, that these orders were given with the full presumption, that the business, which I laid before Congress in February last, would have been settled long before these despatches should come to my hands. However sensibly my Court will be disappointed in its expectations, I shall add nothing to the information and observations, which, with the warmest zeal for the interests and honor of both countries, and by the duties of my office, and my instructions, I found myself bound to deliver from time to time to Congress, in the course of this business. The apprehension of giving new matter to those who endeavor to blame Congress is a new motive for me to be silent. I beg only to remind this honorable body of the aforesaid information and reflections, and particularly of those which I had the honor to deliver in an assembly similar to the present. I shall only insist on a single point, which I established then and since, in one of my Memorials, namely, the manifest and striking necessity of enabling Spain, by the determination of just and moderate terms, to press upon England with her good offices and bring her mediation to an issue, in order that we may know whether we are to expect peace or war. This step is looked upon in Europe as immediately necessary. It was the proper object of the message I delivered in February last. I then established the strong reasons, which require that at the same time, and without delay, proper terms should be offered to his Catholic Majesty, in order to reconcile him perfectly to the American interest. I did not conceal, that it was to be feared, that any condition inconsistent with the established system of the alliance, which is the binding and only law of the allies, and contrary to the line of conduct, which Spain pursued in the course of her mediation, would lead her to drop the mediation, and prevent his Catholic Majesty, by motives of honor and of faithfulness, from joining in our common cause, and from completing the intended triumvirate. No loss, no unhappy event, could be so heavy upon the alliance as this. Indeed, although the British forces are already kept in check by the combined efforts of France and America, it is nevertheless evident, that the accession of Spain can only give to the alliance a decided superiority, adequate to our purposes, and free us from the fatal chance, that a single unlucky event may overthrow the balance.

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The committee then taking notice of what the Minister had said concerning a tacit assurance of the independence of these States, and the reluctance of the King of Great Britain to make an express acknowledgment thereof, requested to know his sense concerning the manner in which such tacit assurance could be given. To which, he premising that what he should now say ought to be considered only as his private sentiments, replied, that the British Court would probably endeavor to avoid an express acknowledgment, by imitating precedents, that had occurred in Europe on similar occasions, instancing the cases of the Swiss cantons, and the United Provinces of the Netherlands; that the mode adopted in the latter case had been for the Archduke, to whom the King of Spain had transferred his right of sovereignty, to treat with them "as with free and independent States." And that with respect to the cantons, France had not been able to obtain for them in the treaty of Munster any other than a declaration, that they should be in possession of as full liberty and exemption from the empire, and be in no manner subject to the jurisdiction thereof. But that in his opinion the circumstances of these States, and the manner in which they had conducted their opposition, would justify their expecting a more full declaration.

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TO THE PRESIDENT OF CONGRESS.

Translation.

Philadelphia, July 26th, 1779.

Sir,

The Minister Plenipotentiary of France has received with gratitude the permission, which the Congress of the United States has been pleased to grant him, for the expedition of the ship Defence. His Court will be very sensible of the regard, which Congress have been pleased to pay to the situation of the vessels of war stationed at Cape François.

The said Minister takes the liberty of reminding Congress of the request, which he made in one of his Memorials, dated the 5th of this month, relative to the accusations, which have been made before the whole House, of frauds which were thought to have been practised with regard to the cargo of the ship Defence, and of other vessels loaded with provisions for the French squadron. The undersigned has, by writing, on the 17th of this month, urged the committee intrusted with this verification, to be pleased to hasten its report, and he takes the liberty of addressing the same request to the Congress of the United States itself. Congress is also referred to the reflections contained in his said Memorial of the 5th instant.

GERARD.

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TO THE PRESIDENT OF CONGRESS.

Translation.

Philadelphia, July 26th, 1779

Sir,

The Minister Plenipotentiary of France has received the resolution of Congress, dated the 15th of this month, in relation to the supplies of provisions destined for the squadron of the King. He requests Congress to accept his thanks for the measures, which have been taken to effect this important object. He is only under the necessity of representing, that no one of the officers of the King can, and that no American citizen will, take it upon himself to receive and take care of the provisions destined for this purpose. The unjust and arbitrary proceedings, to which they have been exposed, terrify them, and the undersigned is obliged to request Congress to leave the said provisions in their own magazines, and in the hands of their own officers, till the time of making use of them arrives. This request has more particular reference to the flour taken from Wilmington, and which has become the direct property of Congress by the transfer of it, which the undersigned made to Congress in one of his latest Memorials.

GERARD.

* * * * *

TO THE PRESIDENT OF CONGRESS.

Translation.

Philadelphia, July 26th, 1779.

Sir,

The Minister Plenipotentiary of France has the honor to lay before the Congress of the United States of America the sequel of the proceedings inserted in the public papers against M. Holker, Consul of the King, and his Majesty's general Navy Agent. The first part of these same proceedings is already in the hands of this august Assembly. The Minister of France intended merely to lay the facts before them, and to leave to their wisdom to determine the measures, that they should judge proper for putting an end to this offence; but the late unjust, injurious, and incompetent proceedings, which have been carried on against a public officer of the King in relation to the exercise of his functions, the further dangers with which he is threatened, the indirect consequences, which already result from them to the representative of his Majesty, and those which may result more directly from the sentiments and principles which are manifested, do not permit the Minister any longer to observe the same moderation.

Congress have received the credentials of the undersigned Minister in the name of all the United States. They have accepted, and invested with their authority the other officers of his Majesty. It consequently belongs to Congress to protect them against the attacks, which may be made in their persons on the dignity of his Most Christian Majesty, and the laws common to all nations governed by the laws of police, relative to the free exercise of their functions. Congress is too enlightened to need a comment upon the insulting writings, which the Minister lays before them. He merely requests them to take into consideration the contents of the letter, which the said Minister has written to the President of the Executive Council of Pennsylvania, as well as that which the Consul of the King has addressed to him. Copies of them are annexed. He is persuaded that Congress will have the less hesitation to take this cause in hand, as facts are involved in it relative to the secret of the alliance, which have happened in the sight and with the consent of a committee; and as this reason alone would justify them in taking an exclusive cognizance of it; besides, the Consul of the King will most fully prove, if Congress think it necessary, that the orders he has given have been exactly conformable to the agreement made with the committee, and to the territorial laws of the State in which they were executed.

Agreeably to these considerations, the Minister Plenipotentiary of France has the honor to beg and formally to request the Congress of the United States of America;

1st. To be pleased to take under their special protection the Consul of the King, and, if circumstances require it, his Majesty's other officers.

2dly. To cause the public notice already given to be repeated, that M. Holker has been accepted by this august body, and recognised as the Consul of his Most Christian Majesty.

3dly. To grant to this public officer, or to procure for him, justice and satisfaction for the attacks publicly made on his honor and reputation.

4thly. To declare that the Consul of the King has acted conformably to the views and wishes of Congress, in seeking to procure provisions for the King's squadron by the way of trade; that the condition of these private purchases has always been, that the articles procured should remain at the free disposal of Congress, either for the army, or for the benefit of the public, and that not a single barrel of flour should be exported without their consent and formal authorisation; that, in consequence of this agreement, the undersigned Minister has transferred to them the hundred and eightytwo barrels bought at Wilmington, and that this quantity of provisions has, from this time, become the property of the United States.

Finally, the undersigned Minister requests Congress to take the effectual measures that their wisdom shall dictate, for protecting all the officers of the King, his master, from every unjust, injurious, and arbitrary proceeding, and for securing to them the liberty necessary for the exercise of their functions, without seeing the dignity of his Majesty and the honor of his officers exposed to farther insults.

The justice of Congress, and their regard for the honor of a monarch, who is a friend and ally of the United States, will, doubtless, prevent the serious discussions and the misunderstanding which such proceedings, if they are not promptly and authentically made amends for, would undoubtedly occasion. It is with the most entire confidence, that the undersigned Minister places this whole affair in the hands of Congress.

GERARD.

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_The Papers referred to in the foregoing Memorial._

No. 1.

M. GERARD TO THE PRESIDENT OF THE STATE OF PENNSYLVANIA.

Translation.

Philadelphia, July 26th, 1779.

Sir,

M. Holker, Navy Agent and Consul of the King, my master, has presented to me his defence in relation to the suspicions, which some have been pleased to excite as to his conduct concerning the subsistence of the French fleet. I approve and confirm all the contents of his letter, and I declare, that he has acted on this occasion in his capacity of a public man and an officer of his Most Christian Majesty, and that all the orders that he has given for the said subsistence have been given under my direction, and with the consent and agreeably to the desire of the committee of the general Congress of the United States.

I hope that the defence of the Consul of the King will satisfy your Excellency and the Executive Council of this Province, as well as every honest and unprejudiced man. At any rate, M. Holker and all the other consuls and officers of his Most Christian Majesty scattered throughout America, will always be ready, when they shall be properly requested, to answer as to anything that shall relate to the law of the country. It is the serious will of his Majesty; his representatives are ordered to see to it; and it is for this reason, that the offers of M. Holker have anticipated your wishes in this respect. But, Sir, in paying this just tribute to the sovereignty and to the territorial law, I must have the honor of observing to you, that there is no civilized nation where the agents and public servants of a foreign sovereign do not enjoy immunities and exemptions, which by the unanimous consent of these nations have been regarded as indispensably necessary for the free exercise of their functions; even when they act contrary to the law of the country, care is taken, and caution used, in order not to wound the dignity of their constituents, and not lightly to injure the public character of their officers. If they have acted only in their official capacity, people have neither the right nor the power to set themselves up for judges; but if there are evident proofs, they are transmitted to the superior officer, if there is one in the country, and it may be to the sovereign himself, and it is for him to cause satisfaction to be made, or the proper punishments to be inflicted.