Chapter III: Conclusion (2)

It is true that these claims were pressed with less constancy and determination at the beginning of the century than at a later day. But there are two sufficient reasons for the change. First, the evidence on which they are founded was less generally known at the beginning than afterward. It was only in 1826, under the administration of John Quincy Adams, by the communication to Congress of the ample materials accumulated in the Archives of State, that the true strength of the case was fully revealed. Here, in one full volume, was the documentary history of the whole double transaction,[112] showing at once the original obligation of France, and the substituted obligation of the United States, reinforced by the associations of our own Revolutionary history. A more sufficient reason for this change is found in the fact, that for some time in the early part of the century our country was still laboring under pressure of the Revolutionary debt. As this pressure was gradually removed, and the national resources became more apparent, these claims were naturally urged with more confidence, until, on the final extinction of that debt, they occupied the attention of the best minds in both Houses of Congress.

No single question in our history has been the subject of such a succession of able reports. Whether counted or weighed, these reports are equally exceptional. They are no less than forty-one in number, twenty-two in the Senate and nineteen in the House. Among the eminent characters whose names they bear are Edward Livingston, John Holmes, Edward Everett, Daniel Webster, Caleb Gushing, Charles J. Ingersoll, John M. Clayton, and Rufus Choate. Out of the whole number only three have been adverse,--one in the Senate and two in the House. But the three adverse reports were evasive only, besides being prior to the communication of the decisive evidence on the subject. The thirty-six reports since that communication were all in favor of the claims.[113]

Resolutions in favor of these claims by thirteen States, being the original number which declared independence, have been presented to Congress between the years 1832 and 1858. Some States, not content with one series, have repeated their resolutions, and accompanied them with elaborate arguments. They all tend to the conclusion that it is the duty of Congress, without further delay, to provide for these claims; and Senators and Representatives are earnestly requested to use their best exertions for an Act of Congress to carry this obligation into effect.

Memorials and petitions from the beginning testify to the sleeplessness of these claims. On the 5th of February, 1802, only forty-six days after the promulgation of the Convention of 1800, they began, and they have continued from that early day down to this very session of Congress, making in all four thousand six hundred and two. Of these, nineteen hundred and thirty-one were in the Senate, two thousand six hundred and seventy-one in the House. They are chiefly from original sufferers, their executors, administrators, assigns, widows, and heirs, residing in the large seaports from which the despoiled vessels originally sailed; but there are some from all parts of the country, where, in the vicissitudes of life, the representatives of original sufferers have been carried,--all of which may be seen in the list of these petitioners.[114]

Two several times--once under President Polk, and again under President Pierce--both Houses of Congress concurred in an act for the relief of these claimants; but this tardy justice was arrested by Presidential veto.

In the face of this constant succession of reports, resolutions of State Legislatures, and petitions, constituting not only “continual claim,” but continual recognition of the claim,--the whole crowned by two several Acts of Congress,--it is impossible to infer negligence in the claimants, or, indeed, any assumption of inordinate confidence. They have had good reason to believe that they should be successful. Under such circumstances, the lapse of time, sometimes urged against them, becomes an argument in their favor; for it adds constantly recurring testimony to their merits, besides a new title from the disappointment to which they have been doomed. Claims beginning thus early, and thus sustained, may be ancient, but they cannot be stale.

II.--POSSESSORS OF THE CLAIMS ARE NOT SPECULATORS.

A trivial remark, which is rather slur than objection, may justify a moment’s attention. It is sometimes said that these claims are no longer the property of the original sufferers or their representatives, but that they have passed, like a fancy stock, into the hands of speculators. This remark, if it had foundation in fact, has little in equity. It would be hardly creditable for a government to take advantage of its own procrastination, and refuse just compensation, because the original sufferer had been compelled by unwelcome necessity to discount his claims.

From the nature of the case, such claims, being unliquidated, do not readily pass from hand to hand, but remain in the original custody, as has become apparent in ample experience. Precisely the same reflection was cast upon the claims against Spain, Denmark, and Naples,--and, indeed, it is cast upon long outstanding claims generally, until it has become a commonplace of sarcasm. The records of successive Commissions which have liquidated foreign claims afford its best refutation. In every case these Commissions required proof of property; but the evidence disclosed that the original sufferers, or their legal representatives, including heirs, executors, assignees of bankrupts, persons having a lien for advances, or underwriters, possessing in law and equity the same right as the original sufferers, were actual possessors of the larger part. There is no reason to suppose that it would be otherwise with the claims for French spoliations. On the contrary, it is believed that they remain substantially unchanged, except by legal inheritance.

The great speculator has been Death; for there are few of these claims that have not passed through his hands. Such a transfer cannot draw the title into doubt, especially when we consider the character of the petitioners whose names are spread on the journals of Congress. It is well known that in many families these claims still exist as heirlooms, transmitted by ancestral care in full confidence that sooner or later they will be recognized by the Government.

III.--PRESENT CONDITION OF THE COUNTRY NO REASON AGAINST PAYMENT OF JUST DEBTS.

It is sometimes suggested, that, even assuming the meritorious character of these claims, yet, in the present condition of the country, they ought to be postponed. Looking at the practical consequences of this suggestion, it will be found, that, though plausible in _form_, it is fatal in _substance_. Any postponement must inevitably throw these claims into direct competition with those now accumulating on account of losses during the Rebellion, having in their favor the swelling sympathies of our time. It is not unjust to human nature, if the Committee say that the distant in time, like the distant in space, is too often out of mind. If the earlier claims are just, they should not be exposed to the hazards of any such competition, when feeling will be stronger than reason. From the probability of future claims, whose shadows already commence, the argument is strengthened for the immediate satisfaction of those now existing, especially when we consider their character and origin.

The resources of the people are tasked to put down the Rebellion which Slavery has aroused. Let nothing be stinted. But there is another duty not to be forgotten. _The just debts of the Republic must be paid_, to the last dollar. Here, also, nothing must be stinted; and the glory of the one will be kindred to the glory of the other. The Republic will have new title to love at home and to honor abroad, when with one hand it overcomes the Rebellion now menacing its existence, and with the other does justice to ancient petitioners, long neglected, constituting the only remaining creditors left to us from the War of Independence.

STATEMENT OF THE QUESTION.

Therefore, putting aside all preliminary objections from alleged antiquity, from the character of the actual possessors, or from the present condition of the country, the Committee insist that the present obligations of the United States must be determined according to principles of justice and the facts of the case. The hearing now is as if there had been no lapse of time since the obligations accrued, and as if no war now existed to task the country.

Is the money justly due? To answer this question, the subject must be considered in detail, under several heads.

_First._ Claims of citizens of the United States against France, founded on spoliations of our commerce, as seen in their origin and history.

_Secondly._ Counter claims of France, founded on treaty stipulations and services rendered in the War of Independence, also as seen in their origin and history.

_Thirdly._ The Convention of 1800 and the reciprocal release of the two Governments, by which the “individual” claims of the petitioners were treated as a set-off to the “national” claims of France.

_Fourthly._ The assumption by our Government of the obligations of France, so that the United States were substituted for France, and became liable to these petitioners as France had been liable.

After considering these heads in their order, it will be proper to review the objections alleged against the liability of the United States: (1.) from the semi-hostile relations between France and the United States anterior to the Convention; (2.) from payments under the Louisiana Treaty; (3.) from payments under the Convention with France in 1831; (4.) from the Act of Congress annulling the early treaties with France; (5.) from the early efforts of our Government to obtain from France the satisfaction of these claims; and (6.) from the desperate character attributed to these claims at the time of their abandonment.

The question of “just compensation” will present itself last: (1.) in the advantages secured to the United States by the sacrifice of these claims; (2.) in the value of the losses which the claimants suffered; and (3.) in the recommendation of the Committee.

The subject is of such importance, from the magnitude of interests involved, and from its historic character, that the minuteness of this inquiry will not be regarded as superfluous.

I.

CLAIMS OF AMERICAN CITIZENS IN THEIR ORIGIN AND HISTORY.

The history of French spoliations on our commerce is a gloomy chapter, where a friendly power, assuming the name of Republic, shows itself fitful, passionate, and unjust. This conduct is more remarkable, when it is considered, that, only a short time before, France, while yet a kingdom, contributed treasure and blood to sustain our national independence. And yet an explanation may be found in the extraordinary temper of the times. By a generous uprising of the people the kingdom was overthrown, and then, as the alarmed royalties of Europe intervened, the head of the monarch was flung to them as a gage of battle. The gage had been accepted in advance, and all those royalties, by successive treaties, entered into coalition against France. The fleets of England came tardily into the great contest, but their presence gave to it a new character, and enveloped ocean as well as land in its flames. The growing commerce of the United States suffered from both sides, but especially from France, driven to frenzy by the British attempt, in the exercise of belligerent rights, to starve a whole nation.

French feelings were still further aroused against the United States, when, instead of friendship and alliance, France was encountered by the Proclamation of Neutrality launched by Washington on the 22d April, 1793, where he undertook, in behalf of the United States, to “adopt and pursue a conduct friendly and impartial toward the belligerent powers.”[115] Here, according to France, was a failure not only of that proper sympathy due from us, but even of solemn duties pledged by those early treaties which helped to secure the national independence. This failure, which became afterward the occasion of counter claims, contributed to the exasperations of the time.

An early apology, addressed to the American minister at Paris by the French Government, attests the spoliations which had begun, and discloses also their indefensible character, unless the common language spoken by the English and ourselves was a sufficient excuse. Here are the exact words:--

“We hope that the Government of the United States will
attribute to their true cause the abuses of which you complain,
as well as other violations of which our cruisers may render
themselves guilty in the course of the present war. _It must
perceive how difficult it is to contain within just limits the
indignation of our marines, and, in general, of all the French
patriots, against a people who speak the same language and
having the same habits as the free Americans._ The difficulty
of distinguishing our allies from our enemies has often been
the cause of offences committed on board your vessels; all that
the Administration could do is to order indemnification to
those who have suffered, and to punish the guilty.”[116]

Thus recklessly did these spoliations begin. The National Convention associated itself with this injustice, when, on the 9th May, 1793, only seventeen days after the Proclamation of Neutrality, but before it had arrived in France, a retaliatory decree was issued in response to the British attempt at starvation,--arresting all neutral vessels laden with provisions and destined to an enemy port. The decree itself did not disguise that it was a violation of neutral rights; but the necessity of the hour was pleaded, _and indemnity was promised to neutrals suffering by its operation_.[117] Unwilling to await the dilatory performance of this promise, our minister at Paris remonstrated against the application of the decree to vessels of the United States. Amidst vacillations of the National Convention, which, under the urgency of our minister, at one time seemed to relent, the decree continued to be enforced against property of American citizens. Here were spoliations, confessed at the time to be in violation of neutral rights, which still rise in judgment.

As this intelligence reached the United States, our whole commerce was fluttered. Merchants hesitated to expose ships and cargoes to such cruel hazards. It was necessary that something should be done to enlist again their activity. The National Government _came forward voluntarily_, with assurance of protection and redress, in a circular letter, dated 27th August, 1793, when Mr. Jefferson, the Secretary of State, in the name of the President, used the following language: “I have it in charge from the President to assure the merchants of the United States concerned in foreign commerce or navigation, that due attention will be paid to any injuries they may suffer on the high seas or in foreign countries, contrary to the Law of Nations or to existing treaties, and that, on their forwarding hither well-authenticated evidence of the same, _proper proceedings will be adopted for their relief_.”[118] This circular was confirmed by President Washington, in his message of December 5, 1793, where he speaks as follows: “The _vexations and spoliation_ understood to have been committed on our vessels and commerce by the cruisers and officers of some of the belligerent powers appeared to require attention. The proofs of these, however, not having been brought forward, the description of citizens supposed to have suffered were notified, that, on furnishing them to the Executive, _due measures would be taken to obtain redress of the past_ and more effectual provisions against the future.”[119] Here, then, was a double promise from the National Government, and under its encouragement our merchants resumed their commerce, venturing once more upon the ocean. Their Government had tempted them, and, on the occurrence of “injuries on the high seas,” these good citizens, according to instructions, made haste to lodge with the Department of State the “well-authenticated evidence of the same.” Their children and grandchildren are waiting, even now, the promised redress.

Thus, at the very beginning, these spoliations were recognized by both Governments in their true character. The National Convention, even in its arbitrary edict, confessed them. The Administration of Washington, in its solemn assurance of protection, also confessed them. Offspring of wrongful violence in the heat of war, they were regarded on both sides as indefensible. Ministers, in this respect, reflected the sentiments of the two Governments. Fauchet, the French minister at Philadelphia, in a communication to the Secretary of State, under date of March 27, 1794, expressed himself in this manner: “If any of your merchants have suffered any injury by the conduct of our privateers, (a thing which would be contrary to the intention and express orders of the Republic,) they may with confidence address themselves to the French Government, which will never refuse justice to those whose claims shall be legal.”[120] Mr. Morris, our minister at Paris, under date of March 6, 1794, gave vent to his feelings: “These captures create great confusion, _must produce much damage to mercantile men_, and are a source of endless and well-founded complaint. Every post brings me piles of letters about it from all quarters, and I see no remedy.… In the mean time, if I would give way to the clamors of the injured parties, I ought to make demands very like a declaration of war.”[121] But M. Buchot, the French Commissioner of Foreign Relations, addressed Mr. Morris the following soothing words, under date of July 5, 1794: “The sentiments of the Convention and of the Government towards your fellow-citizens are too well known to you to leave a doubt of _their dispositions to make good the losses which the circumstances inseparable from a great revolution may have caused some American navigators to experience_.”[122] Such was the testimony, at that day, of ministers on both sides.

Meanwhile, Genet, the French minister, was recalled, at the instance of President Washington, on account of presumptuous interference in our affairs, especially hostile to the Proclamation of Neutrality; and John Jay reached London to negotiate the treaty of 1794 which goes under his name. The latter event added to the exasperation of France. But Mr. Monroe, who took the place of Mr. Morris at Paris, was full of sympathy for the new republic, even when he frankly discharged his unpleasant duties. In a communication to the Committee of Public Safety, under date of October 18, 1794, he exposed “a frightful picture of difficulties and losses, equally injurious to both countries, and which, if suffered to continue, will unavoidably interrupt for the time the commercial intercourse between them.”[123] Notwithstanding this strong language, his influence was thought to have prevailed so far that President Washington ventured to announce, in a confidential message of February 28, 1795, good news for our plundered merchants. “It affords me,” he said, “the highest pleasure to inform Congress that perfect harmony reigns between the two republics, _and that those claims are in a train of being discussed with candor, and of being amicably adjusted_.”[124] This perfect harmony was short-lived, and the hopes flowering from it were nipped.

The rumor of Mr. Jay’s negotiations with England had already produced uneasiness in France; but when the treaty, on its ratification, in October, 1795, was finally divulged, there was an outburst against us. The treaty was pronounced to be in violation of existing engagements with France, and our whole policy was openly branded by the President of the Directory, in reply to Mr. Monroe, as a “condescension of the American Government to the wishes of its ancient tyrants.”[125] The Directory refused to receive Charles Cotesworth Pinckney, sent by our Government in place of James Monroe. Meanwhile, by a succession of cruel edicts, it unleashed all its cruisers to despoil our commerce, and cry havoc wherever they sailed. On the 2d July, 1796, it was declared that “the French Republic will treat neutral vessels, either as to confiscation, as to searches, or capture, _in the same manner as they shall suffer the English to treat them_.”[126] The indefinite terms of this edict were justly denounced by our Government, as “giving scope for arbitrary constructions, and consequently for unlimited oppression and vexation.”[127] These results were soon manifest. With contagious injustice, the French commissioners at San Domingo reported to the Government at home, “that, having found no resource in finance, and knowing the unfriendly disposition of the Americans, and to avoid perishing in distress, they had armed for cruising, and that already eighty-seven cruisers were at sea, and that for three months preceding the Administration had subsisted and individuals been enriched with the products of those prizes.”[128] So extensively did this brutality prevail, that it was announced that American vessels “no longer entered the French ports, _unless carried in by force_.”[129]

This spirit of hostility broke forth in another edict of the Directory, which became at once a universal scourge to American commerce. This fulmination, bearing date March 2, 1797, after enlarging the list of contraband, and ordaining other measures of rigor, proceeds to declare all American vessels lawful prize, if found without a _rôle d’équipage_, or _circumstantial list_ of the crew:[130] all of which was in violation of existing treaties, and also of American usage, which notoriously did not require, among a ship’s papers, any such list. No edict was so comprehensive in its sweep; for, as all our vessels were without this safeguard, they were all defenceless. Numberless spoliations ensued, so absolutely lawless and unjust that John Marshall did not hesitate to record of them in his journal, under date of December 17, 1797, “The claims of the American citizens for property captured and condemned for want of a _rôle d’équipage_” constituted “_as complete a right as any individuals ever possessed_.”[131] This right, thus complete, according to the judgment of our great authority, enters into a large part of the claims still pending before Congress.

As if to perfect this strange, eventful history, a third edict, at once inhospitable and unjust, was launched by the Directory, January 18, 1798, prohibiting “every foreign vessel which in the course of her voyage shall have entered into an English port from being admitted into a port of the French Republic, except in case of necessity,” and, still further, handing over to condemnation “every vessel found at sea loaded in whole or in part with merchandise the production of England or of her possessions.”[132] This edict was promptly denounced by the American plenipotentiaries newly arrived at Paris. In earnest, vigorous tones, they said that it invaded at the same time the interests and the independence of neutral powers,--_that it took from them the profits of an honest and lawful industry_, as well as the inestimable privilege of conducting their own affairs as their own judgment might direct,--and that acquiescence in it would establish a precedent for national degradation, authorizing any measures power might be disposed to practise.[133] Our plenipotentiaries depicted the spirit in which French spoliations had their origin, and the humiliating consequences of submission to the outrage; but the personal sufferers are, down to this day, without redress.

Perplexed and indignant, the United States constituted a special mission of three eminent citizens, Mr. Pinckney, Mr. Marshall, and Mr. Gerry, who were charged to secure indemnity for these spoliations. In his elaborate instructions, dated July 15, 1797, the Secretary of State, Mr. Pickering, lays down the following rule of conduct: “In respect to the depredations on our commerce, the principal objects will be to agree on an equitable mode of examining and deciding the claims of our citizens, and the manner and periods of making them compensation.… The proposed mode of adjusting those claims, by commissioners appointed on each side, is so perfectly fair, we cannot imagine that it will be refused.” Although this reparation was not made “an indispensable condition of the proposed treaty,” yet the plenipotentiaries were enjoined “not to renounce these claims of our citizens, _nor to stipulate that they be assumed by the United States as a loan to the French Government_.”[134] Thus fully were these claims recognized at the time by our Government, and most carefully placed under the protection of our plenipotentiary triumvirate.

The triumvirate found the French Republic in no mood of justice. Bonaparte was then triumphant at the head of the army of Italy, and Talleyrand was exhibiting his remarkable powers at the head of the foreign relations of France. Victory had given confidence, and the exulting Republic was standing tiptoe, more disposed to strike than negotiate, unless it could dictate, and implacable always towards England and all supposed to sympathize with that power. After exactions and humiliations hard to bear, the plenipotentiaries were compelled to return home without any official reception by the intoxicated Government to which they were accredited, but not before they had encountered the masterly ability of Talleyrand, who, in reply to their statement of the claims of the United States, presented the counter claims of France. Though in Paris merely on sufferance, they had unofficial interviews with various agents of the Republic, and even with Talleyrand himself; but without dwelling on details not pertinent to the occasion, it is enough to say, that, while refusing to offer a loan or bribe, they were able to declare frankly “that France had taken violently from America more than fifteen millions of dollars, and treated us in every respect as enemies”;[135] and also to receive from Talleyrand a concession, recorded in one of their despatches, that “some of those claims were probably just,” with the inquiry, “whether, if they were acknowledged by France, we could not give a credit as to the payment,--say, for two years?”[136] Here again was an admission not to be forgotten.

The return of our disappointed plenipotentiaries was aggravated by circumstances which an eminent Continental writer has not hesitated to brand as “unique in the annals of diplomacy.”[137] They had been invited to contribute a _gratification_ of twelve hundred thousand francs, and the whole desperate intrigue, conducted by persons known in the correspondence as W, X, Y, Z, was unveiled to the world. The country was indignant, and war seemed imminent. By various acts of legislation Congress entered upon preparations, summoning Washington from retirement to gird on his sword once more as Lieutenant-General. The claims for French spoliations were never absent from mind. By Act of the 28th May, 1798, public vessels of the United States were authorized to capture all “armed vessels sailing under authority or pretence of authority from the Republic of France,” “_which shall have committed_, or which shall be found hovering on the coasts of the United States for the purpose of committing, _depredations on the vessels belonging to citizens thereof_”; and this statute was introduced by a preamble asserting “_depredations on the commerce of the United States_, … in violation of the Law of Nations and treaties between the United States and the French nation.” By Act of June 13, 1798, all commercial intercourse was suspended between the United States and France, until “the Government of France … shall clearly disavow, and shall be found to refrain from, _the aggressions, depredations, and hostilities which have been and are by them encouraged and maintained against the vessels and other property of the citizens of the United States_.” By Act of June 25, 1798, merchant vessels of the United States were authorized to resist search or seizure by any French armed vessel, to repel assaults, and to capture the aggressors, until “the Government of France … shall disavow, and shall cause the commanders and crews of all armed French vessels _to refrain from, the lawless depredations and outrages hitherto encouraged and authorized by that Government against the merchant vessels of the United States_.” By Act of July 7, 1798, the treaties with France were declared to be no longer obligatory on the United States; and this statute was introduced by a preamble asserting that “_the just claims of the United States for reparation of injuries_ have been refused, and their attempts to negotiate an amicable adjustment of all complaints between the two nations have been repelled with indignity.” Thus, by express words, in repeated acts, did Congress recognize these claims.

By such vigorous measures were the rights of these claimants asserted, while the country assumed an attitude of defence. The French Directory became less intolerable, and negotiations were invited again, with assurance that the former rudeness should not be renewed. John Adams was President, and for the sake of peace he seized the opportunity of this overture, by appointing Chief Justice Ellsworth, Patrick Henry, and William Vans Murray as a second plenipotentiary triumvirate to France. As Mr. Henry declined, Mr. Davie, of North Carolina, was substituted in his place. In adjusting the instructions President Adams himself took a personal part, as appears by a letter to the Secretary of State, where he says: “The principal points, _indeed all the points_, of the negotiation were so minutely considered and _approved by me and all the heads of department_ that nothing remains but to put them into form and dress: this service I pray you to perform as promptly as possible.”[138] But “all the points” were three only: 1st, Indemnity for spoliations of American commerce; 2d, The unquestionable wrong of seizing American vessels for want of the paper known to French law as _rôle d’équipage_; 3d, The refusal to renew the treaty guaranty of the French West Indies. Such were the _ultimata_ originally settled by the President and his cabinet on the 11th of March, 1799, and afterwards fully developed in the elaborate instructions of Mr. Pickering, dated 22d October, 1799, which, after announcing that “the conduct of the French Republic would well have justified an immediate declaration of war on the part of the United States,” proceeded to declare, as the first point, that the plenipotentiaries, “_at the opening of the negotiation_, will inform the French ministers that the United States expect from France, _as an indispensable condition of the treaty_, a stipulation to make to the citizens of the United States _full compensation for all losses and damages_ which they shall have sustained by reason of irregular or illegal captures or condemnations of their vessels and other property.” And the instructions end, as they began, by declaring, first among the terms, “that an article be inserted for establishing a board with suitable powers to hear and determine the claims of our citizens, _and binding France to pay or secure payment of the sums which shall be awarded_.”[139] Observe the positiveness of the assertion.

These instructions attest the interest of our Government. Placed first among the _ultimata_ adopted in the councils of President Adams, these indemnities were placed first in the diplomatic instructions. There is yet other evidence of the character and amount of the spoliations. The Secretary of State, in a report to Congress, dated January 18, 1799, after attributing them to French feeling on account of the British treaty, proceeds to characterize them in remarkable words: “Yet that treaty had been made by the French Government its chief pretence for those unjust and cruel depredations on American commerce which have brought distress on multitudes and ruin on many of our citizens, and occasioned _a total loss of property to the United States of probably more than twenty millions of dollars_.”[140] Such were the outrages for which our plenipotentiaries were to seek redress.

The Directory had ceased; but on reaching Paris the plenipotentiaries were cordially received by Talleyrand, the citizen minister of Foreign Affairs, who without delay presented them to the First Consul as he was about to mount for that wonderful campaign which, opening with the passage of the Alps, closed at Marengo. Negotiations commenced at once, Joseph Bonaparte, elder brother of the First Consul, and afterward King of Spain, being at the head of the commission on the part of France. “Appreciating,” as they announced, “the value of time,” the American plenipotentiaries, in a brief note, on the 7th of April,--the very day when the exchange of powers was completed,--proposed “an arrangement _to ascertain and discharge the equitable claims of the citizens_ of either nation upon the other, whether founded on contract, treaty, or the Law of Nations”; all of which was to be done in order “to satisfy the demands of justice, and render a reconciliation cordial and permanent.”[141] Thus instantly were these claims presented. The French plenipotentiaries in their prompt reply admitted that “_the first object_ of the negotiation ought to be the determination of the regulations, and the steps to be followed, for _the estimation and indemnification of injuries for which either nation may make claim for itself_ or for any of its citizens.”[142] Here was the suggestion of claims, not only “individual,” but also “national,” under which loomed the counter claims of France.

The American plenipotentiaries, while professing to be free from “apprehension of an unfavorable _balance_,” protested against the consideration of any “national” claims until some “convenient stage of the negotiation, after it shall be seen what arrangement would be acceptable for _the claims of citizens_.”[143] The French plenipotentiaries rejoined by enforcing “national” as well as “individual” claims.[144] The issue seemed to be made. On the one side were the “individual” claims of American citizens, on the other side the “national” claims of France. The American plenipotentiaries were not authorized to recognize the “national” claims alone. The French plenipotentiaries were not authorized to recognize the “individual” claims, without a previous recognition on our part of the “national” claims. At last, after various efforts at harmony, it was officially announced that “the negotiation was at a stand on the part of France,” as her plenipotentiaries were constrained by instructions of the First Consul to make “the acknowledgment of former treaties the basis of negotiation _and the condition of compensation_.”[145] The First Consul was then on the Italian slope of the Alps, about to pounce upon the astonished Austrians. Claims and counter claims were of little concern to him.

Thus far the Committee have exhibited our claims in their origin and history. The time has come to change the scene, and to exhibit those counter claims which played such part in the successive negotiations, and finally produced that memorable _dead-lock_, when the two powers stood face to face with antagonist pretensions, unable to go forward, and unwilling to go backward.

II.

COUNTER CLAIMS OF FRANCE, THEIR ORIGIN AND HISTORY.

The counter claims of France differ widely from the claims of American citizens. They were not “individual,” but “national,” being founded on alleged violations of treaty stipulations assumed by the United States in return for the aid of France in the establishment of national independence. During the protracted controversy between the two republics they were detailed in numerous official notes; but they were brandished by Talleyrand, with offensive skill and effect, in the very faces of our insulted plenipotentiaries, under date of March 18, 1798, when, while driving them from Paris, he insisted “_that the priority of grievances and complaints belonged to the French Republic_,” and “that these complaints and these grievances were as real as numerous, long before the United States had the least grounded claim to make.”[146] Careful inquiry enables us to see that this allegation, thus confidently uttered, was not without a certain foundation; and here we revert to the history of our country.

The triumph with which the War of Independence happily ended came tardily, after seven years of battle, suffering, and exhaustion; but it was hastened, if not assured, by the generous alliance of France. From Bunker Hill to Saratoga the war was checkered with gloom, which even the surrender of Burgoyne did not suffice to dispel. Then came the dreary winter of Valley Forge, when soldiers of Washington, after treading the snows barefoot, were obliged, for want of blankets, to huddle all night by the fires, and even the stout heart of the commander-in-chief bent so far as to announce, in formal letter to Congress, that, “unless some great and capital change suddenly takes place, the army must inevitably be reduced to one or other of these three things,--starve, dissolve, or disperse.”[147] But the scene changed with the glad tidings that France, by solemn treaty, signed by Franklin, February 6, 1778, had bound herself to “guaranty to the United States their liberty, sovereignty, and independence, absolute and unlimited.” The camp broke forth with the mingled joy of soldier and patriot, as it turned gratefully to Lafayette, already by the side of Washington, glorious forerunner of armies and navies promised to our cause. Congress took up the strain, and, by unanimous vote, ratified the treaty which opened to our country the gates of the Future.

It is difficult to estimate the value of this treaty in money, especially when we consider its consequences. According to the report of Calonne, the French Minister of Finance, the war which ensued in the support of this guaranty cost France fourteen hundred and forty millions of francs, or about two hundred and eighty millions of dollars. But French blood, more costly than money, was shed on land and sea in the same cause, until at last the army of Cornwallis surrendered at Yorktown to the allied forces of Rochambeau and Washington, and the war closed by the recognition of our national independence. If liberty be priceless, if life be priceless, then was the aid lavished by France infinite beyond calculation.

The engagements were not all on the side of France. Beyond gratitude due for this powerful alliance, were express obligations solemnly assumed by the United States, not only in the Treaty of Alliance, but also in the Treaty of Amity and Commerce negotiated on the same day. These obligations, constituting the consideration of the weighty contract, were of two classes: first, a guaranty by the United States of the possessions of France in America; and, secondly, important privileges for the armed ships of France, with a promise of American convoy to French commerce.

1. The terms of the guaranty are as follows:--

“The two parties guaranty, _mutually_, from the present time
_and forever_, against all other powers, to wit: The United
States to His Most Christian Majesty, _the present possessions
of the crown of France in America_, as well as those which
it may acquire by the future treaty of peace; and His Most
Christian Majesty guaranties, on his part, to the United
States, _their liberty_, _sovereignty_, _and independence,
absolute and unlimited_, as well in matters of government as
commerce, and also their possessions, and the additions or
conquests that their Confederation may obtain during the war
from any of the dominions now or heretofore possessed by Great
Britain in North America.”[148]

To fix more precisely the sense of this article, it was further stipulated, that,--

“_In case of a rupture_ between France and England, the
reciprocal guaranty shall have its full force and effect the
moment such war shall break out; and if such rupture shall
not take place, the mutual obligations of the said guaranty
shall not commence until the moment of the cessation of the
present war between the United States and England shall have
ascertained their possessions.”[149]

The possessions of France in America at this date were the islands of San Domingo, Martinique, Guadeloupe, St. Lucia, St. Bartholomew, Deseada, Mariegalante, St. Pierre, Miquelon, and, on the main-land, Cayenne,--each and all of which the United States guarantied to France _forever_, being a _continuing guaranty_, so far as this term of law is applicable to an international transaction, which, beginning “in case of a rupture between France and England,” was operative after “the cessation of the present war between the United States and England,” and was to continue “forever.”

The terms of the “guaranty” are general, and it was “forever.” Even if limited to _defensive_ war, it would be difficult to say that France was not engaged in such a war, with the added incident that it was a war by a combination of kings to overcome a republic. France was alone, with the royalties of Europe embattled against her. Only after the execution of the King England joined this array, lending to it invincible navies. But, according to official avowals, it was what King George called “the atrocious act recently perpetrated at Paris”[150] that finally prompted the part she undertook, and her real object, in the language of Mr. Fox, was no other than “the destruction of the internal Government of France.”[151] The case was unprecedented; but it is difficult to say that it did not come under the “guaranty.” The _casus fœderis_ had occurred. If France did not exact performance, that is no reason why our obligations should be disowned, when, at the present moment, we are trying to arrive at some appreciation of their extent. A careful examination of the treaty shows that the “guaranty” became primarily obligatory on the occurrence of _a rupture between France and England_. Nothing is said or suggested as to the character of the war, whether offensive or defensive. It is enough that there was “a rupture.” In such a case, the “guaranty,” according to the illustration of Cicero, was, _tanquam gladius in vagina_, at the disposal of France. Our Secretary of State, even while seeking to limit its application, seems to have seen it prospectively in this light, when, in his instructions of July 15, 1797, to our plenipotentiaries, Messrs. Pinckney, Marshall, and Gerry, he said, “Our guaranty of the possessions of France in America will perpetually expose us to the risk and expense of war, or to disputes and questions concerning our national faith.”[152]

2. The Treaty of Amity and Commerce contained a succession of mutual stipulations, by which the United States undertook,--_first_, to protect and defend by their ships of war, or convoy, any or all vessels belonging to French subjects, so long as they hold the same course, “against all attacks, force, and violence, in the same manner as they ought to protect and defend” the vessels of citizens of the United States;[153] _secondly_, to open their ports to French ships of war and privateers with their prizes, and to close them against those of any power at war with France, except when driven by stress of weather, and then “all proper means shall be vigorously used that they go out and retire from thence as soon as possible”;[154] _thirdly_, according to French construction, to allow French privateers “to fit their ships, to sell what they have taken, or in any other manner whatsoever to exchange their ships, merchandise, or any other lading,” while privateers in enmity with France are forbidden even to victual in ports of the United States.[155] As if to round and complete these engagements, it was further stipulated on the part of the United States, in a Consular Convention, which, after many perplexities of diplomacy baffling the tried skill of Franklin, was finally signed by Mr. Jefferson, in 1788, as a postscript to the earlier treaties, that French consuls and vice-consuls in the United States should have power and jurisdiction on board French vessels in civil matters, with the entire inspection over such vessels, their crews, and the changes and substitutions there to be made.[156]

Such, briefly recited, were the solemn engagements of the United States, sanctioned by treaties, as the price of independence. So long as France remained at peace with all the world, especially with Great Britain, these engagements slept unnoticed, but ready, at the first blast of war, to spring into life. At length the blast was heard, perhaps as never before in human history, echoing from capital to capital, and sounding a crusade of monarchical Europe against republican France. Of all the foreign ministers at Paris, the minister of the United States alone remained: the rest had fled.

The minister of the United States saw the danger lowering upon his own country. In a letter to the Secretary of State, dated December 21, 1792, after presenting a rapid sketch of the rising of Europe against France, he adds: “The circumstance of a war with Britain becomes important to us in more cases than one”; and he then alludes to “the question respecting the _guaranty_ of American possessions, especially if France should attempt to defend her islands.”[157] Notoriously, Gouverneur Morris sympathized little with the French Republic, but, against all arguments for non-compliance with our original engagements, because the Government with which they were made had ceased to exist, his sensitive nature broke forth in the “wish that all our treaties, however onerous, may be strictly fulfilled according to their true intent and meaning,” which he followed in language foreign to the phrases of diplomacy, by picturing “the honest nation as that which, like the honest man,

‘Hath to its plighted faith and vow forever firmly stood;
And though it promised to its loss, yet makes that promise good.’”[158]

In harmony with this exclamation of the plenipotentiary are the words of Vattel, an authority much quoted at the time: “To refuse an ally the succors we owe him, without any good ground of dispensation, is doing him an injury, … and there being a natural obligation to repair the damage caused by our fault, and especially by our injustice, we are bound to indemnify an ally for all the losses he may have sustained from our unjust refusal.”[159]

Since the signature of the treaties times had changed, and men had changed with them. There was no bad faith on either side, in the ordinary sense of the term, but intervening events and exigencies of self-defence had driven each into unexpected inconsistencies of conduct. If on one side there was neglect of original engagements, there was on the other equal neglect of international duties. The tornado in mad career uprooted old landmarks, and each was striving to find new lines of reciprocal relations. Franklin, signing the “guaranty,” did not expect so soon to call down upon his country the lightnings of an embattled world; nor did France, while formally conceding neutral rights on the ocean and assuring our national independence, expect so soon to become the plunderer of our commerce. But the great tragedy would have been less complete, if its domineering Nemesis had suffered the two republics to dwell in harmony together. They were whirled, on each side, into those questionable acts out of which have sprung the claims and counter-claims now under consideration.

A new French minister was at hand, accredited to President Washington, with fresh instructions. Differences on the obligations of the guaranty appeared in the Cabinet,--some holding that no necessity for decision existed, as France had made no demand,--and others, that, the Treaty of Alliance being plainly defensive, the guaranty did not apply to a war begun by France. After ample discussion, the Proclamation of Neutrality was adopted, April 22, 1793, destined to become a turning-point in our history. Chief Justice Marshall, whose opportunities of information were unquestionable, lets us know that the Proclamation “was intended to prevent the French minister from demanding _the performance of the guaranty contained in the Treaty of Alliance_.”[160] But before the Proclamation reached France, orders were issued there for the capture and confiscation of enemy goods on board neutral vessels; whereas it was stipulated with the United States that free ships should make free goods; so that, even if the denial of the guaranty was wrong, and the Proclamation, according to French accusation, “insidious,” the United States were not the first to offend.

On the day of the Proclamation came news by the journals that Genet, the new French minister, had landed in South Carolina, where, amid the darkest days of the Revolution, Lafayette had also first landed. Full of conviction that France had only to make herself heard in order to be sustained, Genet exalted himself conspicuously above the Government. By instructions from the Executive Council of the French Republic, dated 17th of January, 1793, he was enjoined “to penetrate profoundly the sense of the treaties of 1778, and to watch over the articles favorable to the commerce and navigation of the United States, and to make the Americans consider engagements which might appear onerous _as the just price of the independence which the French nation had secured to them_.” Not content with existing safeguards, the new minister was to negotiate a supplementary treaty, to fix more surely “the _reciprocal guaranty_ of the possessions of the two powers.”[161] In this spirit he commenced a turbulent career, charging offensively that the President, before knowing what the minister had to communicate from the French Republic, was in a hurry “to proclaim sentiments on which decency and friendship should at least have drawn a veil,”--that he “took on himself to give to our treaties arbitrary interpretations absolutely contrary to their true sense,” and that “he left no other indemnification to France for the blood she spilt, for the treasure she dissipated, in fighting for the independence of the United States, but the illusory advantage of bringing into their ports the prizes made on their enemies without being able to sell them,”--and that the Secretary of War, on his communication of the wish of the Windward Islands “to receive promptly some fire-arms and some cannon, which might put into a state of defence _possessions guarantied by the United States_, had the front to answer, with an ironical carelessness, that the principles established by the President did not permit him to lend so much as a pistol.”[162] In another letter, the French minister, under date of June 8, 1793, requires that “the Federal Government should observe the public engagements contracted, and give to the world the example of a true neutrality, which does not consist in the cowardly abandonment of friends at the moment when danger menaces.”[163] And in still another letter, dated June 22, 1793, he declares that “it is in the conventional compacts, collectively, that we ought to seek contracts of alliance and of commerce simultaneously made, if we wish to take their sense and interpret faithfully the intentions of the people who cemented them, and of the men of genius who dictated them.”[164] All of which was followed by another letter, dated November 14, 1793, in which the minister says categorically: “I beg you to lay before the President of the United States, as soon as possible, the decree and the inclosed note, and to obtain from him the earliest decision, _either as to the guaranty I have claimed the fulfilment of for our colonies_, or upon the mode of negotiation of the new treaty I was charged to propose to the United States, and which would make of the two nations but one family.”[165] At last Genet was recalled, but the question of our engagements with France could not be dismissed. It was more menacing than any minister. Without it all the turbulence of Genet would have been as the idle wind.

And yet, for a while, each party seems to have practised a certain reserve. Genet stormed, but the Government at home was tranquil. The “guaranty” was suspended, even in discussion. France forbore to press it, and the United States were happy to avoid the over-shadowing question. The Secretary of State, in instructions to Mr. Monroe, dated June 10, 1794, while “insisting upon compensation for the captures and spoliations of our property and injuries to the persons of our citizens by French cruisers,” was careful to add: “If the execution of the _guaranty_ of the French islands by force of arms should be propounded, you will refer the Republic of France to this side of the water.”[166] Mr. Monroe, in his correspondence, under date of September 15, 1794, says: “This Republic had declined calling on us to execute the guaranty, from a spirit of magnanimity, and strong attachment to our welfare”; but he reveals his anxiety lest an attempt to press our case “might give birth to sentiments of a different kind, and _create a disposition to call on us to execute that of the Treaty of Alliance_.”[167] In another letter, dated November 7, 1794, describing an interview with the very able Diplomatic Committee, our plenipotentiary confesses the embarrassment he encountered, when M. Merlin three times asked, “Do you insist upon _our_ executing the treaty?” and he gives his reply, that he “was not instructed by the President to insist on it, nor did he insist on it”; and he avows that in his opinion such insistence would have been impolitic, as “exciting a disposition to press us on other points, _upon which it were better to avoid any discussion_.”[168] There is other testimony of this nature, unnecessary to produce. Suffice it to say, that for some time there was a lull, soon to be followed by a storm.