The Diplomatic Correspondence of the American Revolution
Chapter 43 : DE SARTINE.TO M. DE SARTINE.Pa.s.sy, 17th September, 1778.Sir, We have this morning the

DE SARTINE.

TO M. DE SARTINE.

Pa.s.sy, 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 s.h.i.+ps 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 Ma.s.sachusetts 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 inc.u.mbent 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 Amba.s.sadors, 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.

Pa.s.sy, 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 const.i.tuent, 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 mult.i.tude 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 s.h.i.+ps, 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 s.h.i.+p 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 pa.s.sports, 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.