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 Another Random Document on
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January the 7th. I returned to Westham, and then came down to
Manchester, where I lodged. The enemy encamped at Westover and
Berkley. It had rained excessively the preceding night, and continued
to do so till about noon. Gibson has one thousand; Steuben, eight
hundred; Davis, two hundred; Nelson, two hundred and fifty.
January the 8th, at half-past seven o'clock, A. M. I returned to
Richmond. The wind gets, about this time, to north-west; a good
gale; in the afternoon becomes easterly. The enemy remain in their
last encampment. General Nelson at Charles City C. H. Colonel
Nicholas with three hundred men at the Forest.
January the 9th, eleven o'clock. The wind is south-east, but almost
nothing. The enemy remain in their last encampment, except
embarking their horse.
January the 10th, at one o'clock, P. M. They embark infantry, and fall
down the river, the wind having shifted a little north of west, and
pretty fresh. Baron Steuben gets to Bland's Mills to-night, nine miles
short of Hood's.
January the 11th, eight o'clock, A. M. The wind due west, and
strong.

Loss sustained by the public.

The papers and books of the Council since the revolution. The
papers of the auditors, but not their books. Five brass field-pieces,
four pounders, which had been sunk in the river, but were weighed
by the enemy. About one hundred and fifty arms in the Capitol loft.
About one hundred and fifty in a wagon on the Brook road. About
five tons of powder, and some made ammunition at magazine. Some
small proportion of the linens, cloths, &c., in the public store. Some
quarter-masters' stores; the principal articles was one hundred and
twenty sides of leather. Some of the tools in the artificers' shops.
Foundry, magazine, four artificers' shops, public store, quarter-
masters' store, one artificers' shop, three wagons.
The legislature was sitting when the entrance of the enemy into
James river was made known. They were informed, without reserve,
of the measures adopted. Every suggestion from the members was
welcomed and weighed, and their adjournment on the 2d of January
furnished the most immediate and confidential means of calling for
the militia of their several counties. They accordingly became the
bearers of those calls, and they were witnesses themselves, that
every preparation was making which the exhausted and harassed
state of the country admitted.
They met again at Richmond in May, and adjourned to
Charlottesville, where they made a house on the 28th. My office of
Governor expired on the 2d of June, being the fifth day of the
session; and no successor had been appointed, when an enterprise
on the 4th by Tarleton's cavalry drove them thence, and they met
again at Staunton on the 7th. Some members attended there who
had not been at Richmond at the time of Arnold's enterprise. One of
these, George Nicholas, a very honest and able man, then, however,
young and ardent, supposing there had been some remissness in the
measures of the Executive on that occasion, moved for an inquiry
into them, to be made at the succeeding session. The members who
had been present and privy to the transactions, courted the inquiry
on behalf of the executive. Mr. Nicholas, as a candid and honorable
man, sent me, through a friend, a copy of the topics of inquiry he
proposed to go into; and I communicated to him, with the same
frankness, the justifications I should offer, that he might be prepared
to refute them if not founded in fact. The following is a copy of both:
—
1st Objection.—That General Washington's information was, that an
embarcation was taking place, destined for this State.
Answer.—His information was, that it was destined for the
Southward, as was given out at New York. Had similar informations
from General Washington, and Congress, been considered as
sufficient ground at all times for calling the militia into the field,
there would have been a standing army of militia kept up; because
there has never been a time, since the invasion expected in
December, 1779, but what we have had those intimations hanging
over our heads. The truth is, that General Washington always
considered as his duty to convey every rumor of an embarkation;
but we (for some time past, at least) never thought anything but
actual invasion should induce us to the expense and harassment of
calling the militia into the field: except in the case of December,
1799, when it was thought proper to do this in order to convince the
French of our disposition to protect their ships. Inattention to this
necessary economy, in the beginning, went far towards that ruin of
our finances which followed.
2d Objection.—Where were the post-riders, established last
summer?
Answer.—They were established at Continental expense, to convey
speedy information to Congress of the arrival of the French fleet,
then expected here. When that arrived at Rhode Island, these
expenses were discontinued. They were again established on the
invasion in October, and discontinued when that ceased. And again
on the first intimation of the invasion of December. But it will be
asked, why were they not established on General Washington's
letters? Because those letters were no more than we had received
upon many former occasions, and would have led to a perpetual
establishment of post-riders.
3d Objection.—If a proper number of men had been put into motion
on Monday, for the relief of the lower country, and ordered to march
to Williamsburg, that they would at least have been in the
neighborhood of Richmond on Thursday.
Answer.—The order could not be till Tuesday, because we then
received our first certain information. Half the militia of the counties
round about Richmond were then ordered out, and the whole of
them on the 4th, and ordered not to wait to come in a body, but in
detachments as they could assemble. Yet were there not on Friday
more than two hundred collected, and they were principally of the
town of Richmond.
4th Objection.—That we had not the signals.
Answer.—This, though a favorite plan of some gentlemen, and
perhaps a practicable one, has hitherto been thought too difficult.
5th Objection.—That we had not look-outs.
Answer.—There had been no cause to order look-outs more than has
been ever existing. This is only in fact asking why we do not always
keep look-outs.
6th Objection.—That we had not heavy artillery on travelling
carriages.
Answer.—The gentlemen, who acted as members of the Board of
War a twelvemonth can answer this question, by giving the
character of the artificers whom, during that time, they could never
get to mount the heavy artillery. The same reason prevented their
being mounted from May, 1780, to December. We have even been
unable to get those heavy cannon moved from Cumberland by the
whole energy of government. A like difficulty which occurred in the
removal of those at South Quay, in their day, will convince them of
the possibility of this.
7th Objection.—That there was not a body of militia thrown into
Portsmouth, the great bridge, Suffolk.
Answer.—In the summer of 1780, we asked the favor of General
Nelson, to call together the County Lieutenants of the lower
counties, and concert the general measures which should be taken
for instant opposition, on any invasion, until aid could be ordered by
the Executive; and the County Lieutenants were ordered to obey his
call; he did so the first moment, to wit, on Saturday, December the
31st, at 8 o'clock A. M., of our receiving information of the
appearance of a fleet in the bay. We asked the favor of General
Nelson to go down, which he did, with full powers to call together
the militia of any counties he thought proper, to call on the keepers
of any public arms or stores, and to adopt for the instant such
measures as exigencies required, till we could be better informed.
Query.—Why were not General Nelson, and the brave officers with
him, particularly mentioned?
Answer.—What should have been said of them? The enemy did not
land, nor give them an opportunity of doing what nobody doubts
they would have done; that is, something worthy of being minutely
recited.
Query.—Why publish Arnold's letter without General Nelson's
answer?
Answer.—Ask the printer. He got neither from the Executive.
Objection.—As to the calling out a few militia, and that late.
Answer.—It is denied that they were few or late. Four thousand and
seven hundred men (the number required by Baron Steuben) were
called out the moment an invasion was known to have taken place,
that is on Tuesday, January 2d.
Objection.—The abandonment of York and Portsmouth fortifications.
Answer.—How can they be kept without regulars, on the large scale
on which they were formed? Would it be approved of to harass the
militia with garrisoning them?
To place me on equal ground for meeting the inquiry, one of the
representatives of my county resigned his seat, and I was
unanimously elected in his place. Mr. Nicholas, however, before the
day, became better satisfied as to what had been done, and did not
appear to bring forward the inquiry; and in a publication, several
years after, he made honorable acknowledgment of the erroneous
views he had entertained on those transactions. I therefore read in
my place the inquiries he had proposed to make, and stated the
justifications of the Executive. And nearly every member present
having been a witness to their truth, and conscious all was done
which could have been done, concurred at once in the following
resolution:
"The following resolution was unanimously agreed to by both houses
of the General Assembly of Virginia, December the 19th, 1781.
"Resolved, That the sincere thanks of the General Assembly be given
to our former Governor, Thomas Jefferson, Esquire, for his impartial,
upright, and attentive administration whilst in office. The Assembly
wish in the strongest manner to declare the high opinion they
entertain of Mr. Jefferson's ability, rectitude, and integrity as Chief
Magistrate of this Commonwealth, and mean, by thus publicly
avowing their opinion, to obviate and to remove all unmerited
censure."
And here it is but proper to notice the parody of these transactions
which General Lee has given as their history. He was in a distant
State at the time, and seems to have made up a random account
from the rumors which were afloat where he then was. It is a tissue
of errors from beginning to end.
The nonsense which has been uttered on the coup de main of
Tarleton on Charlottesville is really so ridiculous, that it is almost
ridiculous seriously to notice it. I will briefly, however, notice facts
and dates. It has been said before, that the legislature was driven
from Charlottesville by an incursion of the enemy's cavalry. Since the
adjournment from Richmond, their force in this country had been
greatly augmented by reinforcements under Lord Cornwallis and
General Phillips; and they had advanced up into the country as far as
Elk Island, and the Fork of James river. Learning that the legislature
was in session at Charlottesville, they detached Colonel Tarleton with
his legion of horse to surprise them. As he was passing through
Louisa on the evening of the 3d of June, he was observed by a Mr.
Gouett, who, suspecting the object, set out immediately for
Charlottesville, and knowing the byways of the neighborhood,
passed the enemy's encampment, rode all night, and before sunrise
of the 4th, called at Monticello with notice of what he had seen, and
passed on to Charlottesville to notify the members of the legislature.
The Speakers of the two houses, and some other members were
lodging with us. I ordered a carriage to be ready to carry off my
family; we breakfasted at leisure with our guests, and after breakfast
they had gone to Charlottesville; when a neighbor rode up full speed
to inform me that a troop of horse was then ascending the hill to the
house. I instantly sent off my family, and after a short delay for
some pressing arrangements, I mounted my horse; and knowing
that in the public road I should be liable to fall in with the enemy, I
went through the woods, and joined my family at the house of a
friend, where we dined. Would it be believed, were it not known,
that this flight from a troop of horse, whose whole legion, too, was
within supporting distance, has been the subject, with party writers,
of volumes of reproach on me, serious or sarcastic? That it has been
sung in verse, and said in humble prose, that forgetting the noble
example of the hero of La Mancha, and his wind-mills, I declined a
combat singly against a troop, in which victory would have been so
glorious? Forgetting, themselves, at the same time, that I was not
provided with the enchanted arms of the Knight, nor even with his
helmet of Mambrino. These closet heroes, forsooth, would have
disdained the shelter of a wood, even singly and unarmed, against a
legion of armed enemies.
Here, too, I must note another instance of the want of that
correctness in writing history, without which it becomes romance.
General Lee says that Tarleton, in another enterprise some time
after, penetrated up the south side of James river to New London, in
Bedford county. To that neighborhood precisely, where I had a
possession, I had carried my family, and was confined there several
weeks by the effects of a fall from my horse; and I can assure the
readers of General Lee's history, that no enemy ever came within
forty miles of New London.
 II.
Memorandum relative to invasion of Virginia in 1780, 1781.
Among the manuscripts of Mr. Jefferson, and in his own hand writing, is the following paper in relation to the
invasion of Virginia in 1780-1781. It is, therefore, inserted here, in connection with the foregoing extract from
his diary.

Richmond, 1780. Dec. 31st, at 8 A. M. The Governor received the

first intelligence that twenty-seven sail of ships had entered
Chesapeake Bay, and were in the morning of the 29th just below
Willoughby's point, [the southern cape of James river,] their
destination unknown.
1781. January 2, at 10 A. M. Information received that they had
entered James river, their advance being at Warrasqueak Bay. Orders
were immediately given for calling in the militia, one-fourth from
some, and half from other counties. The members of the legislature,
which rises this day, are the bearers of the orders to their respective
counties. The Governor directs the removal of the records into the
country, and the transportation of the military stores from Richmond
to Westham, [on the river seven miles above,] there to be carried
across the river.
January 3d. 8 P. M. The enemy are said to be a little below
Jamestown; convenient for landing, if Williamsburg is their object.
January 4th, at 5 A. M. Information is received that they had passed
Kennon's and Hoods the evening before with a strong easterly wind,
which determines their object to be either Petersburg or Richmond.
The Governor now calls in the whole militia from the adjacent
counties.
At 5 P. M. Information that at 2 P. M. they were landed and drawn up
at Westover, [on the north side of the river, and twenty-five miles
below Richmond,] and consequently Richmond was their destination.
Orders are now given to discontinue wagoning the military stores
from Richmond to Westham, and to throw them across directly at
Richmond.
The Governor having attended to this till an hour and a half in the
night, then rode up to the foundry, [one mile below Westham,]
ordered Captains Brush and Irish, and Mr. Hylton to continue all
night wagoning to Westham the arms and stores still at the foundry,
to be thrown across the river at Westham, then proceeded to
Westham to urge the pressing the transportation there across the
river, and thence went to Tuckahoe [eight miles above, and on the
same side of the river] to see after his family, which he had sent that
far in the course of the day. He arrived there at 1 o'clock in the
night.
Early in the morning he carried his family across the river there, and
sending them to Teine creek, [eight miles higher up,] went himself
to Breton's on the south side of the river, [opposite to Westham,]
finding the arms, &c., in a heap near the shore, and exposed to be
destroyed by cannon from the north bank. He had them removed
under cover of a point of land near by. He proceeded to Manchester
[opposite to Richmond]. The enemy had arrived at Richmond at 1 P.
M. Having found that nearly the whole arms had been got there
from Richmond, he set out for Chetwood's to meet with Baron
Steuben, who had appointed that place as a rendezvous and head-
quarters; but not finding him there, and understanding that he
would be at Colonel Fleming's, [six miles above Breton's,] he
proceeded thither. The enemy had now a detachment at Westham,
and sent a deputation from the city of Richmond to the Governor at
Colonel Fleming's to propose terms for ransoming the safety of the
city, which terms he rejected. The Governor returned to Breton's,
had measures taken more effectually to secure the books and
papers there. The enemy having burnt some houses and stores, left
Richmond, after twenty-four hours stay there, and encamped at
Four-Mile Creek, [eight or ten miles below,] and the Governor went
to look to his family at Fine Creek.
He returned to Breton's to see further to the arms there, exposed on
the ground to heavy rains which had fallen the night before, and
then proceeded to Manchester, and lodged there. The enemy
encamped at Westover.
At half-past 7 A. M. he crossed over to Richmond, and resumed his
residence there. The enemy are still retained in their encampment at
Westover by an easterly wind. Col. John Nicholas has now three
hundred militia at the Forest, [six miles off from Westover,] General
Nelson two hundred at Charles City Court House, [eight miles below
Westover,] Gibson one thousand, and Baron Steuben eight hundred
on the south side the river.
January 9th. The enemy are still encamped at Westover.
January 10th. At 1 P. M. they embark; and the wind having shifted a
little to the north of the west, and pretty fresh, they fall down the
river. Baron Steuben marches for Hood's, where their passage may
be checked. He reaches Bland's Mills in the evening, within nine
miles of Hood's.
January 11th. At 8 A. M. the wind due west and strong, they may
make good their retreat. During this period time and place have
been minutely cited, in order that those who think there was any
remissness in the movements of the Governor, may lay their finger
on the point, and say when and where it was. Hereafter less detail
will suffice.
Soon after this General Phillips having joined Arnold with a
reinforcement of two thousand men, they advanced again up to
Petersburg, and about the last of April to Manchester. The Governor
had remained constantly in and about Richmond, exerting all his
powers collecting militia, and providing such means for the defence
of the State as its exhausted resources admitted. Never assuming a
guard, and with only the river between him and the enemy, his
lodgings were frequently within four, five, or six miles of them.
M. de la Fayette, about this time, arrived at Richmond with some
Continental troops, with which, and the militia collected, he
continued to occupy that place, and the north bank of the river,
while Phillips and Arnold held Manchester and the south bank. But
Lord Cornwallis, about the middle of May, joining the main southern
armies, M. de la Fayette was obliged to retire. The enemy crossed
the river, and advanced up into the country about fifty miles, and
within thirty miles of Charlottesville, at which place the legislature
being to meet in June, the Governor proceeded to his seat at
Monticello, two or three miles from it. His office was now near
expiring, the country under invasion by a powerful army, no services
but military of any avail, unprepared by his line of life and education
for the command of armies, he believed it right not to stand in the
way of talents better fitted than his own to the circumstances under
which the country was placed. He therefore himself proposed to his
friends in the legislature that General Nelson, who commanded the
militia of the State, should be appointed Governor, as he was
sensible that the union of the civil and military power in the same
hands at this time, would greatly facilitate military measures. This
appointment accordingly took place on the 12th of June, 1781.
This was the state of things when, his office having actually expired,
and no successor as yet in place, Colonel Tarleton, with his regiment
of horse, was detached by Lord Cornwallis to surprise Mr. Jefferson
(whom they thought still in office) and the legislature now sitting in
Charlottesville. The Speakers of the two houses, and some other
members of the legislature, were lodging with Mr. Jefferson at
Monticello. Tarleton, early in the morning, when within ten miles of
that place, detached a company of horse to secure him and his
guests, and proceeded himself rapidly with his main body to
Charlottesville, where he hoped to find the legislature unapprized of
his movement. Notice of it, however, had been brought, both to
Monticello and Charlottesville, about sun-rise. The Speakers with
their colleagues, returned to Charlottesville, and with the other
members of the legislature, had barely time to get out of his way.
Mr. Jefferson sent off his family to secure them from danger, and
was himself still at Monticello making arrangements for his own
departure, when a Lieutenant Hudson arrived there at half speed,
and informed him that the enemy were then ascending the hill of
Monticello. He departed immediately, and knowing that he would be
pursued if he took the high road, he plunged into the woods of the
adjoining mountain, where being at once safe, he proceeded to
overtake his family. This is the famous adventure of Carter's
mountain, which has been so often resounded through the
slanderous chronicles of federalism. But they have taken care never
to detail the facts, lest these should show that this favorite charge
amounted to nothing more than that he did not remain in his house,
and there singly fight a whole troop of horse, or suffer himself to be
taken prisoner. Having accompanied his family one day's journey, he
returned to Monticello. Tarleton had retired after eighteen hours'
stay in Charlottesville. Mr. Jefferson then rejoined his family, and
proceeded with them to an estate he had in Bedford, about eighty
miles south-west, where, riding on his farm some time after, he was
thrown from his horse, and disabled from riding on horseback for a
considerable time. But Mr. Turner finds it more convenient to give
him this fall in his retreat before Tarleton, which had happened some
weeks before, as a proof that he withdrew from a troop of horse
with a precipitancy which Don Quixotte would not have practiced.
The facts here stated most particularly, with date of time and place,
are taken from the notes made by the writer hereof for his own
satisfaction at the time. The others are from memory, but so well
recollected that he is satisfied there is no material fact mis-stated.
Should any person undertake to contradict any particular on
evidence which may at all merit the public respect, the writer will
take the trouble (though not at all in the best situation for it) to
produce the proof in support of it. He finds, indeed, that of the
persons whom he recollects to have been present on these
occasions, few have survived the intermediate lapse of four and
twenty years. Yet he trusts that some, as well as himself, are yet
among the living; and he is positively certain that no man can falsify
any material fact here stated. He well remembers, indeed, that there
were then, as there are at all times, some who blamed everything
done contrary to their own opinion, although their opinions were
formed on a very partial knowledge of facts. The censures which
have been heralded by such men as Wm. Turner, are nothing but
revivals of these half-informed opinions. Mr. George Nicholas, then a
very young man, but always a very honest one, was prompted by
these persons to bring specific charges against Mr. Jefferson; the
heads of these in writing were communicated through a mutual
friend to Mr. Jefferson, who committed to writing also the heads of
justification on each of them. I well remember this paper, and
believe the original of it still exists; and though framed when every
real fact was fresh in the knowledge of every one, this fabricated
flight from Richmond was not among the charges stated in this
paper, nor any charge against Mr. Jefferson for not fighting singly the
troop of horse. Mr. Nicholas candidly relinquished further proceeding.
The House of Representatives of Virginia pronounced an honorable
sentence of entire approbation of Mr. Jefferson's conduct, and so
much the more honorable as themselves had been witness to it. And
Mr. George Nicholas took a conspicuous occasion afterwards, of his
own free will, and when the matter was entirely at rest, to retract
publicly the erroneous opinions he had been led into on that
occasion, and to make just reparation by a candid acknowledgment
of them.

III.
Instructions to the Ministers Plenipotentiary appointed to
negotiate treaties of commerce with the European nations.
May 7, 1784.

Whereas, instructions bearing date the 29th day of October, 1783,

were sent to the Ministers Plenipotentiary of the United States of
America at the Court of Versailles, empowered to negotiate a peace,
or to any one or more of them, for concerting drafts or propositions
for treaties of amity and commerce with the commercial powers of
Europe:
Resolved, That it will be advantageous to these United States to
conclude such treaties with Russia, the Court of Vienna, Prussia,
Denmark, Saxony, Hamburg, Great Britain, Spain, Portugal, Genoa,
Tuscany, Rome, Naples, Venice, Sardinia, and the Ottoman Porte.
Resolved, That in the formation of these treaties the following points
be carefully stipulated:
1st. That each party shall have a right to carry their own produce,
manufactures, and merchandise, in their own bottoms to the ports
of the other, and thence the produce and merchandise of the other,
paying, in both cases, such duties only as are paid by the most
favored nation, freely, where it is freely granted to such nation, or
paying the compensation where such nation does the same.
2. That with the nations holding territorial possessions in America, a
direct and similar intercourse be admitted between the United States
and such possessions; or if this cannot be obtained, then a direct
and similar intercourse between the United States and certain free
ports within such possessions; that if this neither can be obtained,
permission be stipulated to bring from such possessions, in their
own bottoms, the produce and merchandise thereof to their States
directly; and for these States to carry in their own bottoms their
produce and merchandise to such possessions directly.
3. That these United States be considered in all such treaties, and in
every case arising under them, as one nation, upon the principles of
the federal constitution.
4. That it be proposed, though not indispensably required, that if
war should hereafter arise between the two contracting parties, the
merchants of either country, then residing in the other, shall be
allowed to remain nine months to collect their debts and settle their
affairs, and may depart freely, carrying off all their effects, without
molestation or hinderance; and all fishermen, all cultivators of the
earth, and all artisans or manufacturers, unarmed and inhabiting
unfortified towns, villages or places, who labor for the common
subsistence and benefit of mankind, and peaceably following their
respective employments, shall be allowed to continue the same, and
shall not be molested by the armed force of the enemy, in whose
power, by the events of war, they may happen to fall; but if anything
is necessary to be taken from them, for the use of such armed force,
the same shall be paid for at a reasonable price; and all merchants
and traders, exchanging the products of different places, and
thereby rendering the necessaries, conveniences, and comforts of
human life more easy to obtain and more general, shall be allowed
to pass free and unmolested; and neither of the contracting powers
shall grant or issue any commission to any private armed vessels
empowering them to take or destroy such trading ships, or interrupt
such commerce.
5. And in case either of the contracting parties shall happen to be
engaged in war with any other nation, it be further agreed, in order
to prevent all the difficulties and misunderstandings that usually
arise respecting the merchandise heretofore called contraband, such
as arms, ammunition and military stores of all kinds, that no such
articles, carrying by the ships or subjects of one of the parties to the
enemies of the other, shall, on any account, be deemed contraband,
so as to induce confiscation, and a loss of property to individuals.
Nevertheless, it shall be lawful to stop such ships and detain them
for such length of time as the captors may think necessary, to
prevent the inconvenience or damage that might ensue, from their
proceeding on their voyage, paying, however, a reasonable
compensation for the loss such arrest shall occasion to the
proprietors; and it shall be further allowed to use in the service of
the captors, the whole or any part of the military stores so detained,
paying the owners the full value of the same, to be ascertained by
the current price at the place of its destination. But if the other
contracting party will not consent to discontinue the confiscation of
contraband goods, then that it be stipulated, that if the master of
the vessel stopped, will deliver out the goods charged to be
contraband, he shall be admitted to do it, and the vessel shall not in
that case be carried into any port; but shall be allowed to proceed
on her voyage.
6. That in the same case, when either of the contracting parties shall
happen to be engaged in war with any other power, all goods, not
contraband, belonging to the subjects of that other power, and
shipped in the bottoms of the party hereto, who is not engaged in
the war, shall be entirely free. And that to ascertain what shall
constitute the blockade of any place or port, it shall be understood
to be in such predicament, when the assailing power shall have
taken such a station as to expose to imminent danger any ship or
ships, that would attempt to sail in or out of the said port; and that
no vessel of the party, who is not engaged in the said war, shall be
stopped without a material and well-grounded cause; and in such
cases justice shall be done, and an indemnification given, without
loss of time to the persons aggrieved, and thus stopped without
sufficient cause.
7. That no right be stipulated for aliens to hold real property within
these States, this being utterly inadmissible by their several laws and
policy; but when on the death of any person holding real estate
within the territories of one of the contracting parties, such real
estate would by their laws descend on a subject or citizen of the
other, were he not disqualified by alienage, then he shall be allowed
a reasonable time to dispose of the same, and withdraw the
proceeds without molestation.
8. That such treaties be made for a term not exceeding ten years
from the exchange of ratification.
9. That these instructions be considered as supplementary to those
of October 29th, 1783; and not as revoking, except when they
contradict them. That where in treaty with a particular nation they
can procure particular advantages, to the specification of which we
have been unable to descend, our object in these instructions having
been to form outlines only and general principles of treaty with many
nations, it is our expectation they will procure them, though not
pointed out in these instructions; and where they may be able to
form treaties on principles which, in their judgment, will be more
beneficial to the United States than those herein directed to be
made their basis, they are permitted to adopt such principles. That
as to the duration of treaties, though we have proposed to restrain
them to the term of ten years, yet they are at liberty to extend the
same as far as fifteen years with any nation which may
pertinaciously insist thereon. And that it will be agreeable to us to
have supplementary treaties with France, the United Netherlands
and Sweden, which may bring the treaties we have entered into with
them as nearly as may be to the principles of those now directed;
but that this be not pressed, if the proposal should be found
disagreeable.
Resolved, That treaties of amity, or of amity and commerce, be
entered into with Morocco, and the Regencies of Algiers, Tunis and
Tripoli, to continue for the same term of ten years, or for a term as
much longer as can be procured.
That our Ministers, to be commissioned for treating with foreign
nations, make known to the Emperor of Morocco the great
satisfaction which Congress feel from the amicable disposition he
has shown towards these States, and his readiness to enter into
alliance with them. That the occupations of the war, and distance of
our situation have prevented our meeting his friendship so early as
we wished. But the powers are now delegated to them for entering
into treaty with him, in the execution of which they are ready to
proceed, and that as to the expenses of his Minister, they do therein
what is for the honor and interest of the United States.
Resolved, That a commission be issued to Mr. J. Adams, Mr. B.
Franklin, and Mr. T. Jefferson, giving powers to them, or the greater
part of them, to make and receive propositions for such treaties of
amity and commerce, and to negotiate and sign the same,
transmitting them to Congress for their final ratification; and that
such commission be in force for a term not exceeding two years.
 IV.
Report of a conference with the Count de Vergennes on the
subject of the Commerce of the United States with France.
[14]

The next levee day at Versailles, I meant to bring again under the
view of the Count de Vergennes, the whole subject of our commerce
with France; but the number of audiences of ambassadors and other
ministers, which take place, of course, before mine, and which
seldom, indeed, leave me an opportunity of audience at all,
prevented me that day. I was only able to ask the Count de
Vergennes, as a particular favor, that he would permit me to wait on
him some day that week. He did so, and I went to Versailles the
Friday following, (the 9th of December.) M. de Reyneval was with the
Count. Our conversation began with the usual topic; that the trade
of the United States had not yet learned the way to France, but
continued to centre in England, though no longer obliged by law to
go there. I observed, that the real cause of this, was to be found in
the difference of the commercial arrangements in the two countries;
that merchants would not, and could not trade but where there was
to be some gain; that the commerce between two countries could
not be kept up, but by an exchange of commodities; that, if an
American merchant was forced to carry his produce to London, it
could not be expected he would make a voyage from thence to
France, with the money, to lay it out here; and, in like manner, that
if he could bring his commodities, with advantage, to this country,
he would not make another voyage to England, with the money, to
lay it out there, but would take in exchange the merchandise of this
country. The Count de Vergennes agreed to this, and particularly
that where there was no exchange of merchandise, there could be
no durable commerce; and that it was natural for merchants to take
their returns in the port where they sold their cargo. I desired his
permission then, to take a summary view of the productions of the
United States, that we might see which of them could be brought
here to advantage.
1. Rice. France gets from the Mediterranean a rice not so good
indeed, but cheaper than ours. He said that they bought of our rice,
but that they got from Egypt also, rice of a very fine quality. I
observed that such was the actual state of their commerce, in that
article, that they take little from us. 2. Indigo. They make a plenty in
their own colonies. He observed that they did, and that they thought
it better than ours. 3. Flour, fish, and provisions of all sorts, they
produce for themselves. That these articles might, therefore, be
considered as not existing, for commerce, between the United States
and the kingdom of France.
I proceeded to those capable of becoming objects of exchange
between the two nations. 1. Peltry and furs. Our posts being in the
hands of the English, we are cut off from that article. I am not sure
even, whether we are not obliged to buy of them, for our own use.
When these posts are given up, if ever they are, we shall be able to
furnish France with skins and furs, to the amount of two millions of
livres, in exchange for her merchandise; but at present, these
articles are to be counted as nothing. 2. Potash. An experiment is
making whether this can be brought here. We hope it may, but at
present it stands for nothing. He observed that it was much wanted
in France, and he thought it would succeed. 3. Naval stores. Trials
are also making on these, as subjects of commerce with France.
They are heavy, and the voyage long. The result, therefore, is
doubtful. At present, they are as nothing in our commerce with this
country. 4. Whale oil. I told him I had great hopes that the late
diminution of duty would enable us to bring this article, with
advantage, to France; that a merchant was just arrived (Mr. Barrett)
who proposed to settle at L'Orient, for the purpose of selling the
cargoes of this article, and choosing the returns. That he had
informed me, that in the first year, it would be necessary to take
one-third in money, and the remainder only in merchandise; because
the fishermen require, indispensably, some money. But he thought
that after the first year, the merchandise of the preceding year,
would always produce money for the ensuing one, and that the
whole amount would continue to be taken annually afterwards, in
merchandise. I added, that though the diminution of duty was
expressed to be but for one year, yet I hoped they would find their
advantage in renewing and continuing it; for that if they intended
really to admit it for one year only, the fishermen would not find it
worth while to rebuild their vessels, and to prepare themselves for
the business. The Count expressed satisfaction on the view of
commercial exchange held up by this article. He made no answer as
to the continuance of it; and I did not choose to tell him, at that
time, that we should claim its continuance under their treaty with
the Hanseatic towns, which fixes this duty for them, and our own
treaty, which gives, us the rights of the most favored nation. 5.
Tobacco. I recalled to the memory of the Count de Vergennes, the
letter I had written to him on this article; and the object of the
present conversation being, how to facilitate the exchange of
commerciable articles between the two countries, I pressed that of
tobacco, in this point of view; observed that France, at present, paid
us two millions of livres for this article; that for such portions of it as
were bought in London, they sent the money directly there, and for
what they bought in the United States, the money was still remitted
to London, by bills of exchange; whereas, if they would permit our
merchants to sell this article freely, they would bring it here, and
take the returns on the spot, in merchandise, not money. The Count
observed, that my proposition contained what was doubtless useful,
but that the King received on this article, at present, a revenue of
twenty-eight millions, which was so considerable, as to render them
fearful of tampering with it; that the collection of this revenue by
way of Farm, was of very ancient date, and that it was always
hazardous to alter arrangements of long standing, and of such
infinite combinations with the fiscal system. I answered, that the
simplicity of the mode of collection proposed for this article,
withdrew it from all fear of deranging other parts of their system;
that I supposed they would confine the importation to some of their
principal ports, probably not more than five or six; that a single
collector in each of these, was the only new officer requisite; that he
could get rich himself on six livres a hogshead, and would receive
the whole revenue, and pay it into the treasury, at short hand. M. de
Reyneval entered particularly into this part of the conversation, and
explained to the Count, more in detail, the advantages and simplicity
of it, and concluded by observing to me, that it sometimes happened
that useful propositions, though not practicable at one time, might
become so at another. I told him that that consideration had induced
me to press the matter when I did, because I had understood the
renewal of the Farm was then on the carpet, and that it was the
precise moment when I supposed that this portion might be
detached from the mass of the Farms. I asked Count de Vergennes
whether, if the renewal of the Farm was pressing, this article might
not be separated, merely in suspense, till government should have
time to satisfy themselves on the expediency of renewing it. He said
no promises could be made.
In the course of this conversation, he had mentioned the liberty we
enjoyed of carrying our fish to the French islands. I repeated to him
what I had hinted in my letter, of November the 20th, 1785, that I
considered as a prohibition the laying such duties on our fish, and
giving such premiums on theirs, as made a difference between their
and our fishermen of fifteen livres the quintal, in an article which
sold for but fifteen livres. He said it would not have that effect, for
two reasons: 1. That their fishermen could not furnish supplies
sufficient for their islands, and, of course, the inhabitants must, of
necessity, buy our fish. 2. That from the constancy of our fishery,
and the short season during which theirs continued, and also from
the economy and management of ours, compared with the expense
of theirs, we had always been able to sell our fish, in their islands, at
twenty-five livres the quintal, while they were obliged to ask thirty-
six livres. (I suppose he meant the livre of the French islands.) That
thus, the duty and premium had been a necessary operation on their
side, to place the sale of their fish on a level with ours, and that
without this, theirs could not bear the competition.
I have here brought together the substance of what was said on the
preceding subjects, not pretending to give it verbatim, which my
memory does not enable me to do. I have, probably, omitted many
things which were spoken, but have mentioned nothing which was
not. It was interrupted, at times, with collateral matters. One of
these was important. The Count de Vergennes complained, and with
a good deal of stress, that they did not find a sufficient dependence
on arrangements taken with us. This was the third time too, he had
done it; first, in a conversation at Fontainebleau, when he first
complained to me of the navigation acts of Massachusetts and New
Hampshire; secondly, in his letter of October the 30th, 1785, on the
same subject; and now, in the present conversation, wherein he
added, as another instance, the case of the Chevalier de Mezieres,
heir of General Oglethorpe, who, notwithstanding that the 11th
article of the treaty provides, that the subjects or citizens of either
party shall succeed, ab intestato, to the lands of their ancestors,
within the dominions of the other, had been informed from Mr.
Adams, and by me also, that his right of succession to the General's
estate in Georgia was doubtful. He observed too, that the
administration of justice with us was tardy, insomuch that their
merchants, when they had money due to them within our States,
considered it as desperate; and that our commercial regulations, in
general, were disgusting to them. These ideas were new, serious
and delicate. I decided, therefore, not to enter into them at that
moment, and the rather, as we were speaking in French, in which
language I did not choose to hazard myself. I withdrew from the
objections of the tardiness of justice with us, and the
disagreeableness of our commercial regulations, by a general
observation, that I was not sensible they were well founded. With
respect to the case of the Chevalier de Mezieres, I was obliged to
enter into some explanations. They related chiefly to the legal
operation of our Declaration of Independence, to the undecided
question whether our citizens and British subjects were thereby
made aliens to one another, to the general laws as to conveyances
of land to aliens, and the doubt whether an act of the Assembly of
Georgia might not have been passed, to confiscate General
Oglethorpe's property, which would of course prevent its devolution
on any heir. Mr. Reyneval observed, that in this case, it became a
mere question of fact, whether a confiscation of these lands had
taken place before the death of General Oglethorpe, which fact
might be easily known by inquiries in Georgia, where the
possessions lay. I thought it very material, that the opinion of this
court should be set to rights on these points. On my return,
therefore, I wrote the following observations on them, which, the
next time I went to Versailles, (not having an opportunity of
speaking to the Count de Vergennes,) I put into the hands of M.
Reyneval, praying him to read them, and to ask the favor of the
Count to do the same.

Explanations on some of the subjects of conversation which I had

the honor of having with his Excellency, the Count de Vergennes,
when I was last at Versailles.
The principal design of that conversation was, to discuss those
articles of commerce which the United States could spare, which are
wanted in France, and if received there on a convenient footing,
would be exchanged for the productions of France. But in the course
of the conversation, some circumstances were incidentally
mentioned by the Count de Vergennes, which induced me to
suppose he had received impressions, neither favorable to us, nor
derived from perfect information.
The case of the Chevalier de Mezieres was supposed to furnish an
instance of our disregard to treaties; and the event of that case was
inferred from opinions supposed to have been given by Mr. Adams
and myself. This is ascribing a weight to our opinions, to which they
are not entitled. They will have no influence on the decision of the
case. The judges in our courts, would not suffer them to be read.
Their guide is the law of the land, of which law its treaties make a
part. Indeed, I know not what opinion Mr. Adams may have given on
the case. And, if any be imputed to him derogatory of our regard to
the treaty with France, I think his opinion has been misunderstood.
With respect to myself, the doubts which I expressed to the
Chevalier de Mezieres, as to the success of his claims, were not
founded on any question whether the treaty between France and the
United States would be observed. On the contrary, I venture to
pronounce that it will be religiously observed, if his case comes
under it. But I doubted whether it would come under the treaty. The
case, as I understand it, is this: General Oglethorpe, a British
subject, had lands in Georgia. He died since the peace, having
devised these lands to his wife. His heirs are the Chevalier de
Mezieres, son of his elder sister, and the Marquis de Bellegarde, son
of his younger sister. This case gives rise to legal questions, some of
which have not yet been decided, either in England or America, the
laws of which countries are nearly the same.
1. It is a question under the laws of those countries, whether
persons born before their separation, and once completely invested,
in both, with the character of natural subjects, can ever become
aliens in either? There are respectable opinions on both sides. If the
negative be right, then General Oglethorpe having never become an
alien, and having devised his lands to his wife, who, on this
supposition, also, was not an alien, the devise has transferred the
lands to her, and there is nothing left for the treaty to operate on.
2. If the affirmative opinion be right, and the inhabitants of Great
Britain and America, born before the Revolution, are become aliens
to each other, it follows by the laws of both, that the lands which
either possessed, within the jurisdiction of the other, became the
property of the State in which they are. But a question arises,
whether the transfer of the property took place on the Declaration of
Independence, or not till an office, or an act of Assembly, had
declared the transfer. If the property passed to the State on the
Declaration of Independence, then it did not remain in General
Oglethorpe, and, of course, at the time of his death, he having
nothing, there was nothing to pass to his heirs, and so, nothing for
the treaty to operate on.
3. If the property does not pass till declared by an office found by
jury, or an act passed by the Assembly, the question then is,
whether an office had been found, or an act of Assembly been
passed for that purpose, before the peace? If there was, the lands
had passed to the State during his life, and nothing being left in him,
there is nothing for his heirs to claim under the treaty.
4. If the property had not been transferred to the State before the
peace, either by the Declaration of Independence, or an office, or an
act of Assembly, then it remained in General Oglethorpe at the
epoch of the peace; and it will be insisted, no doubt, that, by the
sixth article of the treaty of peace, between the United States and
Great Britain, which forbids future confiscations, General Oglethorpe
acquired a capacity of holding and of conveying his lands. He has
conveyed them to his wife. But she being an alien, it will be decided
by the laws of the land, whether she took them for her own use, or
for the use of the State. For it is a general principle of our law, that
conveyances to aliens pass the lands to the State; and it may be
urged, that though, by the treaty of peace, General Oglethorpe could
convey, yet that treaty did not mean to give him a greater privilege
of conveyance than natives hold, to wit: a privilege of transferring
the property to persons incapable, by law, of taking it. However, this
would be a question between the State of Georgia and the widow of
General Oglethorpe, in the decision of which the Chevalier de
Mezieres is not interested, because, whether she takes the land by
the will, for her own use, or for that of the State, it is equally
prevented from descending to him: there is neither a conveyance to
him, nor a succession ab intestato devolving on him, which are the
cases provided for by our treaty with France. To sum up the matter
in a few words; if the lands had passed to the State before the
epoch of peace, the heirs of General Oglethorpe cannot say they
have descended on them, and if they remained in the General at
that epoch, the treaty saving them to him, he could convey them
away from his heirs, and he has conveyed them to his widow, either
for her own use, or for that of the State.
Seeing no event in which, according to the facts stated to me, the
treaty could be applied to this case, or could give any right whatever,
to the heirs of General Oglethorpe, I advised the Chevalier de
Mezieres not to urge his pretensions on the footing of right, nor
under the treaty, but to petition the Assembly of Georgia for a grant
of these lands. If, in the question between the State and the widow
of General Oglethorpe, it should be decided that they were the
property of the State, I expected from their generosity, and the
friendly disposition in America towards the subjects of France, that
they would be favorable to the Chevalier de Mezieres. There is
nothing in the preceding observations which would not have applied
against the heir of General Oglethorpe, had he been a native citizen
of Georgia, as it now applies against him, being a subject of France.
The treaty has placed the subjects of France on a footing with
natives, as to conveyances and descent of property. There was no
occasion for the Assemblies to pass laws on this subject; the treaty
being a law, as I conceive, superior to those of particular
Assemblies, and repealing them, when they stand in the way of its
operations.
The supposition that the treaty was disregarded on our part, in the
instance of the acts of Assembly of Massachusetts and New
Hampshire, which made a distinction between natives and
foreigners, as to the duties to be paid on commerce, was taken
notice of in the letter of November the 20th, which I had the honor
of addressing to the Count de Vergennes. And while I express my
hopes that, on a revision of these subjects, nothing will be found in
them derogatory from either the letter or spirit of our treaty, I will
add assurances that the United States will not be behind hand in
going beyond both, whenever occasions shall offer of manifesting
their sincere attachment to this country.
I will pass on to the observation, that our commercial regulations are
difficult, and repugnant to the French merchants. To detail these
regulations minutely, as they exist in every State, would be beyond
my information. A general view of them, however, will suffice,
because the States differ little in their several regulations. On the
arrival of a ship in America, her cargo must be reported at the
proper office. The duties on it are to be paid. These are commonly
from two and a half to five per cent. on its value. On many articles,
the value of which is tolerably uniform, the precise sum is fixed by
law. A tariff of these is presented to the importer, and he can see
what he has to pay, as well as the officer. For other articles, the duty
is such a per cent. on their value. That value is either shown by the
invoice, or by the oath of the importer. This operation being once
over, and it is a very short one, the goods are considered as entered,
and may then pass through the whole thirteen States without their
being ever more subject to a question, unless they be reshipped.
Exportation is still more simple; because, as we prohibit the
exportation of nothing, and very rarely lay a duty on any article of
export, the State is little interested in examining outward-bound
vessels. The captain asks a clearance for his own purposes. As to the
operations of internal commerce, such as matters of exchange, of
buying, selling, bartering, &c., our laws are the same as the English.
If they have been altered in any instance, it has been to render
them more simple.
Lastly, as to the tardiness of the administration of justice with us, it
would be equally tedious and impracticable for me to give a precise
account of it in every State. But I think it probable that it is much on
the same footing through all the States, and that an account of it in
any one of them may found a general presumption of it in the
others. Being best acquainted with its administration in Virginia, I
shall confine myself to that. Before the Revolution, a judgment could
not be obtained under eight years in the supreme court, where the
suit was in the department of the common law, which department
embraces about nine-tenths of the subject of legal contestation. In
that of the chancery, from twelve to twenty years were requisite.
This did not proceed from any vice in the laws, but from the
indolence of the judges appointed by the King; and these judges
holding their office during his will only, he could have reformed the
evil at any time. This reformation was among the first works of the
legislature after our independence. A judgment can now be obtained
in the supreme court in one year at the common law, and in about
three years in the chancery. But more particularly to protect the
commerce of France, which, at that moment, was considerable with
us, a law was passed, giving all suits wherein a foreigner was a
party, a privilege to be tried immediately, on the return of his
process, without waiting till those of natives, which stand before
them, shall have been decided on. Out of this act, however, the
British stand excluded by a subsequent one. This, with its causes,
must be explained. The British army, after ravaging the State of
Virginia, had sent off a very great number of slaves to New York. By
the seventh article of the treaty of peace, they stipulated not to
carry away any of these. Notwithstanding this, it was known, when
they were evacuating New York, that they were carrying away the
slaves. General Washington made an official demand of Sir Guy
Carleton, that he should cease to send them away. He answered,
that these people had come to them under promise of the King's
protection, and that that promise should be fulfilled in preference to
the stipulation in the treaty. The State of Virginia, to which nearly
the whole of these slaves belonged, passed a law to forbid the
recovery of debts due to British subjects. They declared, at the same
time, they would repeal the law, if Congress were of opinion they
ought to do it. But, desirous that their citizens should be discharging
their debts, they afterwards permitted British creditors to prosecute
their suits, and to receive their debts in seven equal and annual
payments; relying that the demand for the slaves would be either
admitted or denied in time to lay their hands on some of the latter
payments for reimbursement. The immensity of this debt was
another reason for forbidding such a mass of property to be offered
for sale under execution at once, as, from the small quantity of
circulating money, it must have sold for little or nothing, whereby the
creditor would have failed to receive his money, and the debtor
would have lost his whole estate without being discharged of his
debt. This is the history of the delay of justice in that country in the
case of British creditors. As to all others, its administration is as
speedy as justice itself will admit. I presume it is equally so in all the
other States, and can add, that it is administered in them all, with a
purity and integrity of which few counties afford an example.
I cannot take leave altogether of the subjects of this conversation
without recalling the attention of the Count de Vergennes to what
had been its principal drift. This was to endeavor to bring about a
direct exchange between France and the United States (without the
intervention of a third nation), of those productions with which each
could furnish the other. We can furnish to France (because we have
heretofore furnished to England), of whale oil and spermaceti, of
furs and peltry, of ships and naval stores, and of potash, to the
amount of fifteen millions of livres; and the quantities will admit of
increase. Of our tobacco, France consumes the value of ten millions
more. Twenty-five millions of livres, then, mark the extent of that
commerce of exchange, which is, at present, practicable between us.
We want, in return, productions and manufactures, not money. If
the duties on our produce are light, and the sale free, we shall
undoubtedly bring it here, and lay out the proceeds on the spot in
the productions and manufactures which we want. The merchants of
France will, on their part, become active in the same business. We
shall no more think, when we shall have sold our produce here, of
making an useless voyage to another country to lay out the money,
than we think at present, when we have sold it elsewhere, of coming
here to lay out the money. The conclusion is, that there are
commodities which form a basis of exchange to the extent of a
million of guineas annually; it is for the wisdom of those in power to
contrive that the exchange shall be made.
Having put this paper into the hands of Monsieur Reyneval, we
entered into conversation again, on the subject of the Farms, which
were now understood to be approaching to a conclusion. He told
me, that he was decidedly of opinion, that the interest of the State
required the Farm of tobacco to be discontinued, and that he had,
accordingly, given every aid to my proposition, which laid within his
sphere; that the Count de Vergennes was very clearly of the same
opinion, and had supported it strongly with reasons of his own,
when he transmitted it to the Comptroller General; but that the
Comptroller, in the discussions of this subject which had taken place,
besides the objections which the Count de Vergennes had repeated
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