Chapter IV: Conclusion (3)

French forbearance is more remarkable, when it is considered that the occasion for the “guaranty” had begun to be urgent. Even before Howe’s great victory of June, over the French fleet, the British navy swept the sea, rendering all French possessions insecure. Martinique, San Domingo, St. Lucia, and Guadeloupe were lost to the Republic in the spring of 1794, so that the British historian has written: “Thus, in little more than a month, the French were entirely dispossessed of their West India possessions, with hardly any loss to the victorious nation.”[169] But the “guaranty” was invoked by the impatient colonists, who, without waiting the slower movement of the French Republic, appealed directly to our Congress for “divers necessary succors, of provision, ammunition, and even men,” and in impassioned language pictured “England come to take possession of the French colonies in the name of a king without dominions, and North America, witness to that political perfidy, not able to lend a helping hand against an unworthy treachery.”[170] The French Government at home did not share the fury of the colonists. According to Mr. Monroe, in his letter of December 2, 1794, whatever may have been their desires at a previous stage, they did not now wish us to “embark with them in the war,” but “would rather we would not, from an idea it might diminish their supplies from America,” and “if the point depended on them, they would leave us to act in that respect according to our own wishes”; at the same time they looked to us for “aid in the article of money.”[171] This moderation, although a temporary waiver, was in no respect a renunciation of rights. According to Mr. Jefferson, in a letter written some months after his retirement from the Cabinet, and addressed to Mr. Madison, under date of April 3, 1794, the “guaranty” was still obligatory. “As to the guaranty of the French islands,” he wrote, “whatever doubts may be entertained of the moment at which we ought to interpose, yet _I have no doubt but that we ought to interpose at a proper time_, and declare both to England and France that these islands are to rest with France, and that we will make _a common cause_ with the latter for that object.”[172] Such was American testimony.

The West India islands were lost without causing an apparent smart at home; but it was different, when the news came of Mr. Jay’s negotiation in England. The Republic was stung to the quick, and, when the treaty became known, did not conceal its indignant anger. In a formal note, dated March 9, 1796, it set forth its complaints, dwelling especially upon the “inexecution of the treaties,” and upon the formation of the recent treaty with Great Britain, in which the United States “knowingly and evidently sacrificed their connections with the Republic.”[173] In conversation with Mr. Monroe, the French minister said “that France had much cause of complaint against us, independently of our treaty with England, but that by this treaty ours with them was annihilated.”[174] The year closed with the recall of Mr. Monroe, and with a notice from the French Government “that it will no longer recognize nor receive a Minister Plenipotentiary from the United States, _until after a reparation of the grievances demanded of the American Government_, and which the French Republic has a right to expect”; and then, adding ingratitude to the list of our offences, it declared an equal expectation “that the successors of Columbus, Raleigh, and Penn, always proud of their liberty, will never forget that _they owe it to France_.”[175] Meanwhile, M. Adet, the French plenipotentiary in Philadelphia, was addressing our Government in similar strain, calling for the discharge of our engagements, and heaping reproaches: “The undersigned, Minister Plenipotentiary of the French Republic, now fulfils to the Secretary of State of the United States a painful, but sacred duty. _He claims, in the name of American honor, in the name of the faith of treaties, the execution of that contract which assured to the United States their existence_, and which France regarded as the pledge of the most sacred union between two people the freest upon earth.” And he charges the Government of the United States with “sacrificing France to her enemies,” “forgetting the services that she had rendered it,” and “throwing aside the duty of gratitude, as if ingratitude was a Governmental duty.”[176] From this time forward the claims of the United States never failed to encounter the counter-claims of France.

The mutual coquetry which characterized the two Governments during the mission of Mr. Monroe gave way to mutual recrimination and repulsion, where France took the lead. M. Adet was recalled from Philadelphia. Mr. Pinckney was sent away from Paris. Besides the earlier decree, announcing that the Republic would treat all neutrals in the same manner as they suffered the English to treat them, other fatal blows were now dealt at our commerce, letting loose a new brood of spoliations destined to swell the catalogue of our claims, by a decree pronouncing the stipulations of the treaty of 1778 which concerned the neutrality of the flags altered and suspended in their most essential points by the treaty with England, greatly enlarging the list of contraband, declaring Americans in the service of England pirates, and authorizing the seizure of all American vessels without a _rôle d’équipage_, which, notoriously, no American vessel ever carried, so that practically our flag was delivered over to the depredations of every French cruiser.[177]

Then came that plenipotentiary triumvirate, Messrs. Pinckney, Marshall, and Gerry, who were particularly instructed by our Government, while urging the multiplied claims of our citizens, already valued at “more than twenty millions of dollars,” to propose “a substitute for the reciprocal guaranty,” or, “if France insists on the mutual guaranty, to aim at some modification of it,”--“instead of troops or ships of war, to stipulate for a moderate sum of money or quantity of provisions, at the option of France: the provisions to be delivered at our own ports, in any future _defensive_ wars; the sum of money, or its value in provisions, not to exceed two hundred thousand dollars a year, during any such wars.”[178] Here was recognition of the “guaranty,” and a sum offered for release from its requirements. But the French Republic, drunk with triumph and maddened with anger, was in no mood for negotiation. It met our plenipotentiaries with an intrigue already mentioned as unparalleled in diplomacy, and, after tolerating their presence for a while at Paris, without conceding an official reception, sent them away, disappointed and dishonored. Even in the informal relations which were permitted, Talleyrand, in the name of the Republic, advanced and vindicated the counter-claims of France. Without dwelling at length on his argument, it is enough to quote certain words in a letter to Mr. Gerry, of June 10, 1798: “_The French Republic desires to be restored to the rights which its treaties with your Republic confer upon it, and through those means it desires to assure yours. You claim indemnities; it equally demands them_; and this disposition, being as sincere on the part of the Government of the United States as it is on its part, will speedily remove all the difficulties.”[179] Thus plainly was the case stated. It was not denied that indemnities were due to the United States, but it was insisted that they were also due to France.

The two countries, once allies, were now in the most painful relations. Washington was no longer President; but his Farewell Address, in some of its most important parts, was evidently inspired by the counter-claims of France, especially when he warned his fellow-countrymen “to steer clear of _permanent alliances_ with any portion of the foreign world, _so far as we are now at liberty to do it_,”--“to have with foreign nations as little _political_ connection as possible,”--“to be constantly awake against the insidious wiles of foreign influence,”--and then asked in well-known words, “Why quit our own, to stand upon foreign ground? Why, by _interweaving our destiny with that of any part of Europe_, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor, or caprice?”[180] In these remarkable words, where the same tone, if not the same lesson, recurs, we discern the undissembled anxieties of the hour. By the guaranty and other stipulations of 1778, our peace and prosperity had been entangled, even if our destiny had not been interwoven, in distant toils. France was urgent and brutal. War seemed impending. At last another triumvirate of plenipotentiaries, Messrs. Ellsworth, Davie, and Murray, was commissioned to attempt again the adjustment of complications that had thus far baffled the wisdom of Washington; but compensation for the “individual” claims of American citizens was required as an indispensable condition.

Such are the counter-claims of France in origin and history. And now again we are brought to the very point where the Committee had arrived in exhibiting the claims of our citizens. The plenipotentiaries on each side have met to negotiate, while the First Consul has gone to Marengo. On each side they are equally tenacious. There is a dead-lock. How this was overcome belongs to the next chapter.

III.

ADJUSTMENT BETWEEN THE UNITED STATES AND FRANCE BY THE SET-OFF AND MUTUAL RELEASE OF CLAIMS AND COUNTER-CLAIMS.

The rules of duty and of conduct between individuals are applicable also to nations, and the proceedings on this occasion illustrate this principle. The two parties could not agree. Clearly, then, for the sake of harmony, it was essential to postpone both claims and counter-claims, for some future negotiation, or, if this were not done, to treat them as a set-off to each other. Such, unquestionably, would have been the action between individuals. But the history of this negotiation shows the adoption of these two modes successively. Postponement was first tried, but it gave way at last to _set-off_, by virtue of which the _international_ controversy was closed. This conclusion was reached slowly and by stages, as is seen in a simple narrative of the negotiation.

The plenipotentiaries on each side evinced a disposition to provide for reciprocal claims; but the claims specified by the American plenipotentiaries were those of “_citizens_ of either nation,” while those specified by the French plenipotentiaries were those which “either nation may make for _itself_ or for any of its citizens.”[181] In this difference of specification was the germ of the antagonism soon developed, especially when the American plenipotentiaries proposed to recognize the treaties and Consular Convention as existing only to July 7, 1798,[182] the date of the statute by which Congress undertook to annul them. This distinction seems to have been unnecessary, for the French spoliations were clearly as much in contravention of the Law of Nations as of the treaties. But it furnished the French plenipotentiaries opportunity of declaring, under date of May 6, 1800, that “the mission of the Ministers Plenipotentiary of the French Republic has pointed out to them the Treaties of Alliance, Friendship, and Commerce, and the Consular Convention, _as the only foundations of their negotiations_”; that “upon these acts has arisen the misunderstanding, and it seems proper that upon these acts union and friendship should be established.”[183] Thus were the treaties put forward by France; and our plenipotentiaries, writing to their own Government, May 17, 1800, represent her as persistent: “Our success is yet doubtful. The French think it hard to indemnify for violating engagements, _unless they can thereby be restored to the benefits of them_.”[184] But on this point our Government was inexorable.

The return of the First Consul from Italy was signalized by fresh instructions to the French plenipotentiaries, who proceeded to declare, under date of August 11, 1800, that “the treaties which united France and the United States are not broken,” and that their first proposition is “to stipulate a full and entire recognition of the treaties, and the reciprocal engagement of compensation for damages resulting on both sides from their infraction.” Here, again, the “individual” claims of citizens of the United States were doomed to encounter the “national” claims of France. And this communication concluded with a formal proposition in these words: “Either the ancient treaties, with the privileges resulting from priority and the stipulation of reciprocal indemnities, or a new treaty, assuring equality without indemnity.”[185] Thus it stood: Claims and Counter-Claims.

The American plenipotentiaries were driven to choose between abandonment of the negotiations and abandonment of their instructions. It was clear, from French persistency, that the treaties, with all the counter-claims, must be recognized, or the indemnities, with all the claims, must be sacrificed. The American plenipotentiaries then took the extraordinary responsibility of a proposition which discloses not only their earnest desire for a settlement, but also their sense of pressure from France. It was nothing less than a price, in money, for release from certain stipulations; but this was to be accomplished by “a reciprocal stipulation for _indemnities limited to the claims of individuals_.”[186] The French plenipotentiaries, in reply, insisted upon recognition of the treaties in general terms, and also the rights of their privateers in our ports; yet they offered to commute the guaranty for a sum of money.[187] The American plenipotentiaries, hampered by the recent treaty with Great Britain, were obliged to reject this proposition; but, after requiring the satisfaction of “individual” claims, they offered, in general terms, that “the former treaties be renewed and confirmed, and have the same effect as if no misunderstanding between the two powers had intervened”; and further, that, _in consideration of eight millions of francs_, the United States should be released from the guaranty, and also from those other articles relating to prizes which had caused so much embarrassment.[188] Then the French plenipotentiaries assumed a new position in the following reply, September 4, 1800.

“_To the Ministers Plenipotentiary of the United States at
Paris_:--

“We shall have the right to take our prizes into the ports of
America.

“A commission shall regulate the indemnities which either of
the two nations may owe to the citizens of the other.

“_The indemnities which shall be due by France to the citizens
of the United States shall be paid for by the United States.
And in return for which, France yields the exclusive privilege
resulting from the 17th and 22d articles of the Treaty of
Commerce, and from the rights of guaranty of the 11th article
of the Treaty of Alliance._

“BONAPARTE.
“C. P. CLARET-FLEURIEU.
“ROEDERER.”[189]

Here was the first proposition of _set-off_. On the one side were “indemnities due by France to citizens of the United States,” and on the other side were “privileges and rights” under the treaties; but it will not fail to be remarked that _the indemnities due by France were to be paid by the United States_. This proposition proceeded on the idea that the counter-claims of France were at least equal in value to the claims of the United States, and that the release of the former was a sufficient consideration for the assumption of the latter. But this was entirely beyond the powers of the American plenipotentiaries, who, in their reply, pronounced it “inadmissible.”[190] It revealed the desire of France to escape any payment of money, as only a few days later was openly avowed by the French plenipotentiaries, “giving as one reason the utter inability of France to pay, in the situation in which she would be left by the present war.”[191] This declared inability served to explain the difficulties encountered by the American plenipotentiaries. Evidently there was a “foregone conclusion” against any payment by France. The counter-claims furnished the needed _substitute_. But, as these were “national,” while the claims of the United States were “individual,” there could be no just _set-off_ between them, unless the American Government assured to its citizens the payment of what was due from France, according to the proposition of the French plenipotentiaries.

The American plenipotentiaries were disheartened. Nothing in their instructions enabled them to meet the new and unexpected turn of affairs. The treaty they had striven for seemed to elude their grasp. In their journal, under date of September 13, 1800, is the record, that, “being now convinced that the door was perfectly closed against all hope of obtaining indemnities with any modifications of the treaties, it only remained to be determined whether, under all circumstances, it would not be expedient to attempt _a temporary arrangement_.”[192] The French plenipotentiaries did not consider this proposition, without insisting, “first, that a stipulation of indemnities carries with it the full and entire admission of the treaties, and, secondly, that the relinquishment of the advantages and privileges stipulated by the treaties, by means of the reciprocal relinquishment of indemnities, would prove to be the most advantageous arrangement, and also the most honorable to the two nations.”[193] Here, again, was a proposition of _set-off_, which was repeated in other different forms.

The dead-lock which clogged the negotiation, even at the beginning, was now complete. The American plenipotentiaries announced at home that they were driven to quit France, or to find some other terms of adjustment.[194] The latter alternative prevailed, and the negotiation was renewed, with the understanding that the parties put off to another time the discussion of indemnities and the treaties.[195] The other questions furnished no ground of serious controversy; and the conferences proceeded tranquilly, from day to day, till September 30, 1800, resulting in what was entitled a “_Provisional_ Treaty.” The title revealing its temporary character was subsequently changed, at the request of the French plenipotentiaries, to that of “Convention,” which it now bears in the statute-book.

The Convention, after declaring in its first article that “there shall be a firm, inviolable, and universal peace, and a true and sincere friendship, between the French Republic and the United States of America,” proceeds to stipulate as follows.

“ART. II. The Ministers Plenipotentiary of the two parties
not being able to agree at present respecting the Treaty
of Alliance of 6th February, 1778, the Treaty of Amity and
Commerce of the same date, and the Convention of 14th of
November, 1788, nor upon the indemnities mutually due or
claimed, the parties will negotiate further on these subjects
at a convenient time; and until they may have agreed upon
these points, the said treaties and convention shall have no
operation, and the relations of the two countries shall be
regulated as follows.”[196]

Here the disagreement with regard to the early treaties and the indemnities mutually due or claimed is specifically declared, and it is then provided that “_the parties_ will negotiate further on these subjects at a convenient time,”--meaning, of course, that hereafter, at a more auspicious moment, and with other plenipotentiaries, “the parties” will attempt to reconcile this disagreement. The whole subject, with its seven years of controversy and heart-burning, was postponed. Claims and counter-claims were left to sleep, while the spirit of peace descended upon the two countries.

The Convention was signed at Morfontaine, the elegant country home of Joseph Bonaparte, and the occasion was turned into a festival,--illustrated afterwards by the engraving of Piranesi,--where nothing was wanting that hospitality could supply. The First Consul was there, with his associates in power; also Lafayette, rescued from his Austrian dungeon and restored to France; and there also were the plenipotentiaries of both sides, with American citizens then in France, all gathered in brilliant company to celebrate the establishment of concord between the two republics.[197] The First Consul proposed as a toast, “_To the manes of the French and the Americans who died on the field of battle for the independence of the New World_”; so that even at this generous festival, to grace a reconciliation founded on the postponement of claims and counter-claims, the youthful chief, whose star was beginning to fill the heavens, proclaimed the undying obligations of the United States to France. This strain has been adopted by M. Thiers, who, after referring to this convention as the first concluded by the Consular Government, says: “It was natural that the reconciliation of France with the different powers of the globe should begin with _that republic to which she had in a measure given birth_.” The great historian, while thus recording our obligations to France, shows how claims and counter-claims had been postponed. “The First Consul,” he says, “had allowed the difficulties relative to the Treaty of Alliance of the 6th of February, 1778, to be adjourned; but, on the other hand, he had required the adjournment of the claims of the Americans relative to captured vessels.”[198] In this summary the stipulations at the signature of the Convention are accurately stated. Though imperfect, it was the first in that procession of peace, embracing Lunéville, Amiens, and the Concordat, which for a moment closed the Temple of Janus, whose gates had been left open by the Revolution in France.

The ratification by the First Consul followed the celebration at Morfontaine, so that the Convention, with its postponement of mutual claims, was definitely accepted by France. It was otherwise in the United States, where the result did not find favor. The postponement of a controversy is not a settlement, and here was nothing but postponement, leaving the old cloud hanging over the country, ready to burst at the motion of England or France. It was important that the early treaties, with their entangling engagements, should cease, even as a subject of future negotiation. In this spirit, the Senate, on the submission of the Convention for ratification, expunged the second article, providing that “the parties will negotiate further on these subjects,” and limited the Convention to eight years. On the 18th of February, 1801, President Adams, by proclamation countersigned by John Marshall, as Secretary of State, published the Convention as duly ratified, “saving and excepting the second article,” which was declared “to be expunged, and of no force or validity.”[199] The precise effect of this proceeding was not explained, and it remained to see how it would be regarded in France.

Were the claims on France abandoned? This was the question which occupied the attention of our minister, Mr. Murray, when charged to exchange with France the ratifications of the Convention as amended by the Senate. Reporting to the Government at home his conference with the French plenipotentiaries, he said, “I fear that they will press an article of formal abandonment on our part, _which I shall evade_.”[200] He hoped, to keep still another chance for indemnities. On the other hand, the French plenipotentiaries feared that an unconditional suppression of the second article would leave them exposed to the claims of the United States without chance for their counter-claims; but they did not object to a mutual abandonment of indemnities, which Mr. Murray admitted would “always be _set off_ against each other.”[201] At last the conclusion was reached, and on the 31st of July, 1801, the Convention was ratified by the First Consul, with the limitation to eight years, and with the retrenchment of the second article, according to the amendment by the Senate, the whole with a proviso by the First Consul “THAT BY THIS RETRENCHMENT THE TWO STATES RENOUNCE THE RESPECTIVE PRETENSIONS WHICH ARE THE OBJECT OF THE SAID ARTICLE.”[202] Such were the important words of final settlement. What had been left to inference in the amendment of the Senate was placed beyond question by this French proviso. Claims and counter-claims were not merely suspended; they were formally abandoned. The Convention, with this decisive modification, was submitted to the Senate by President Jefferson, and again ratified by a vote of twenty-two yeas to four nays. On the 21st of December, 1801, it was promulgated by the President in the usual form, with its supplementary proviso, and all persons were enjoined to observe and fulfil the same, “and every clause and article thereof.”[203]

One aspect of this result cannot fail to arrest attention. Here was a release of all outstanding obligations of the United States under those famous treaties which assured National Independence. The joy with which those heralds of triumph were first welcomed in camp and Congress has been portrayed; and now a kindred joy prevailed, when the country, anxious and sorely tried, was at last set free from their obligations, and American commerce, venturing forth again from its banishment, brought back its treasures to pour them into the lap of the people. Strange fate! There was joy at the birth of these treaties, and joy also at their death. But it was because their death had become to us, like their birth, a source of national strength and security.

Thus closed a protracted controversy, where each power was persistent to the last. Nothing could be more simple than the adjustment, and nothing more equitable, _if we regard the two Governments only_. The claims of each were treated as a _set-off_ to the claims of the other, and _mutual releases_ were interchanged, so that each, while losing what it claimed, triumphed over its adversary. But the triumph of the United States was at the expense of American citizens. Nothing is without price; and new duties, originating in this triumph, sprang into being.

IV.

ASSUMPTION OF CLAIMS BY THE UNITED STATES, AND SUBSTITUTION OF UNITED STATES FOR FRANCE.

Then came the assumption by our Government of the original obligations of France, and its complete _substitution_ for France _as the responsible debtor_. This liability was distinctly foreseen by the American plenipotentiaries, Messrs. Pinckney, Marshall, and Gerry, as appears in their words, under date of October 22, 1797: “We observed to M. Bellamy, that none of our vessels had what the French termed a _rôle d’équipage_, and that, if we were to surrender all the property which had been taken from our citizens in cases where their vessels were not furnished with such a rôle, _the Government would be responsible to its citizens for the property so surrendered_, since it would be impossible to undertake to assert that there was any plausibility in the allegation that our treaty required a _rôle d’équipage_.”[204] This admission, so important in this discussion, was so clearly in conformity with correct principles, that it was naturally made, even without special instructions.

Had the claims been “national” on each side, no subsequent question could have occurred, for each would have extinguished the other in all respects forever. It was the peculiarity of this case, that on one side the claims were “national,” and on the other side “individual.” But a _set-off_ of “individual” claims against “national” claims must, of course, leave that Government responsible which has appropriated the “individual” claims to this purpose. The set-off and mutual release are between nation and nation; but if the claims on one side are only “individual,” and not “national,” the nation which by virtue of this consideration is released from “national” obligations must be _substituted_ for the other nation as debtor, so that every “individual” with claims thus appropriated may confidently turn to it for satisfaction. On this point there can be no doubt, whether we regard it in the light of common sense, reason, duty, Constitution, or authority.

1. According to _common sense_, any “individual” interest appropriated to a “national” purpose must create a debt on the part of the nation, still further enhanced, if, through this appropriation, the nation is relieved from outstanding engagements already the occasion of infinite embarrassment, and hanging like a drawn sword over the future.

2. According to _reason_, any person intrusted with the guardianship of particular interests becomes personally responsible with regard to them, especially if he undertakes to barter them against other interests for which he is personally responsible. Thus, an attorney, sacrificing the claims of his clients for the release of his own personal obligations, becomes personally liable; and so also the trustee, appropriating the trust fund for any personal interest, becomes personally liable. All this is too plain for argument; but it is applicable to a nation as to an individual. In the case now before your Committee, our Government was attorney to prosecute “individual” claims of citizens, and also trustee for their benefit, to watch and protect their interests; so that it was bound to all the responsibilities of attorney and trustee, absolutely incapacitated from any act of personal advantage, and compelled to regard all that it obtained, whatever form of value it might assume, whether money or release, as a trust fund for the original claimants.

3. _Duty_, also, in harmony with reason, enjoins upon Government the protection of citizens against foreign spoliations and the prosecution of their claims to judgment. Such are powerless as “individuals.” Their claims are effective only when adopted by the nation. This duty, so obvious on general principles, was reinforced in the present case by the special undertaking of Mr. Jefferson, already adduced, when he announced that he had 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.”[205] Such a duty, thus founded, and thus openly assumed, could not be abandoned, on any inducement proceeding from France, without a corresponding responsibility toward those citizens whose interests were allowed to suffer. A waiver of national duty, especially where made for the national benefit, must entail national obligation.

4. The _Constitution_ also plainly requires what seems so obvious to common sense, reason, and duty, when it declares that “private property shall not be taken for public use _without just compensation_.” Here “private property,” to a vast amount, was taken for “public use,” involving the peace and welfare of the whole country; and down to this day the sufferers are petitioning Congress for that “just compensation” solemnly promised by the Constitution.

5. _Public law_ is also in harmony with the Constitution. According to Vattel, the sovereign may, in the exercise of his right of eminent domain, dispose of the property, and even the person, of a subject, by treaty with a foreign power; “but,” says this eminent authority, “as it is for the public advantage that he thus disposes of them, the state is bound to indemnify the citizens who are sufferers by the transaction.”[206] Words more applicable to the present case could not be employed.

6. The authority of great names confirms this liability. Among those who took part in the negotiations with France, none but Mr. Pickering and Chief Justice Marshall still lingered on the stage when the subject was finally pressed upon Congress. Mr. Pickering was Secretary of State under Washington and Adams, and drew the instructions. His testimony is explicit. Without giving his statement at length, it will be enough to quote these words, in a letter dated November 19, 1824:--

“Thus the Government _bartered_ the _just claims_ of our
merchants on France, to obtain a relinquishment of the French
claim for a restoration of the old treaties, especially the
burdensome Treaty of Alliance, by which we were bound to
guaranty the French territories in America. On this view of
the case, it would seem _that the merchants have an equitable
claim for indemnities from the United States_.… It follows,
then, that, if the relinquishment had not been made, the
present French Government would be responsible. Consequently,
the relinquishment by our own Government having been made in
consideration that the French Government relinquished its
demand for a renewal of the old treaties, _then it seems
clear, that, as our Government applied the merchants’ property
to buy off those old treaties, the sums so applied should be
reimbursed_.”[207]

Chief Justice Marshall, who was one of the plenipotentiaries that attempted to secure payment from France, and afterward, as Secretary of State, countersigned the proclamation of President Adams first promulgating the Convention of 1800, has borne testimony similar to that of Mr. Pickering. In conversation with Mr. Preston, of South Carolina, he said, that, “having been connected with the events of that period, and conversant with the circumstances under which the claims arose, _he was, from his own knowledge, satisfied that there was the strongest obligation on the Government to compensate the sufferers by the French spoliations_.”[208]

Hon. B. Watkins Leigh, an ancient Senator from Virginia, relates that the same eminent authority said in his presence, “distinctly and positively, that _the United States ought to make payment of these claims_.” This declaration made a particular impression upon Mr. Leigh, because he had been unfavorable to the claims.

7. The obligation of the United States may be inferred also from _the declared justice_ of the claims which had been renounced. On this point the authority is equally explicit.

Of course, in urging them upon France, earnestly and most assiduously, by successive plenipotentiaries, there was a plain adoption of them as just. But even after their abandonment they continued to be recognized as just.

Hon. Robert R. Livingston, plenipotentiary at Paris, in his correspondence shortly after the abandonment, shows his discontent. In a note to the Minister of Exterior Relations he speaks compendiously of “the payment for illegal captures, with damages and indemnities on one side, and the renewal of the Treaty of 1778 on the other, as of _equivalent value_.”[209] And in a despatch, under date of January 13, 1802, he says he has “always considered the sacrifices we have made of an immense claim as _a dead loss_.”[210] But this “dead loss” fell upon “individuals,” and not upon the “nation.”

Mr. Madison, as Secretary of State, in a despatch to Hon. Charles Pinckney, our minister at the court of Spain, under date of February 6, 1804, upholds the justice of the claims in significant words:--

“The claims from which France was released were _admitted by
France_, and the release was for _a valuable consideration_
in a correspondent release of the United States from certain
claims on them.”[211]

Thus, according to official declaration, the claims of American citizens were “admitted by France,” but they were released for _a valuable consideration_ which first inured to the benefit of the Government of the United States. _Equitably, that valuable consideration must belong to the claimants._

Mr. Clay, as Secretary of State under John Quincy Adams, made a report, which had the sanction of the latter, where he fully affirms the justice of the claims:--

“The pretensions of the United States arose out of the
spoliations, under color of French authority, in contravention
to law and existing treaties. Those of France sprung from the
Treaty of Alliance of the 6th February, 1778, the Treaty of
Amity and Commerce of the same date, and the Convention of the
14th of November, 1788. Whatever obligations or indemnities
from those sources either party had a right to demand were
respectively waived and abandoned, _and the consideration which
induced one party to renounce his pretensions was that of the
renunciation by the other party of his pretensions_. What was
the value of the obligations and indemnities so reciprocally
renounced can only be matter of speculation.”[212]

Mr. Clay concludes by declaring that the Senate, to which his report is addressed, was most competent to determine how far the appropriation of the indemnities due to American citizens was “a public use of private property, within the spirit of the Constitution, and whether equitable considerations do not require some compensation to be made to the claimants.”

There is one other authority, of commanding character, not to be forgotten. It is Hon. Edward Livingston, jurist, statesman, and diplomatist, who, though not engaged in the negotiations, knew them as contemporary, and afterward, as Senator, made a report, accepted ever since as an authentic statement of the whole case, in which he says:--

“The Committee think it is sufficiently shown that the claim
for indemnities was surrendered _as an equivalent_ for the
discharge of the United States from its heavy national
obligations, and for the damages that were due for their
preceding non-performance of them. If so, can there be a doubt,
independent of the constitutional provision, that the sufferers
are entitled to indemnity? Under that provision _is not this
right converted into one that we are under the most solemn
obligation to satisfy?_ … To lessen the public expenditure is a
great legislative duty; to lessen it at the expense of justice,
public faith, and constitutional right would be a crime.
Conceiving that all these require that relief should be granted
to the petitioners, they pray leave to bring in a bill for that
purpose.”[213]

This list of authorities may be closed with that of the Emperor Napoleon, who, at St. Helena, dictated to Gourgaud the following testimony:--

“The suppression of this article [2d of the Convention] at once
put an end to the privileges which France had possessed by the
Treaty of 1778, _and annulled the just claims which America
might have made for injuries done in time of peace_. This was
exactly what the First Consul had proposed to himself, in
fixing these two points _as equiponderating each other_.”[214]

Thus the head of the French Government at the time of the Convention unites with the statesmen of our own country in attaching value to these claims.

* * * * *

To all this array of argument and authority the Committee see no answer. They follow its teaching, when they adopt the conclusion, in which so many previous committees have already joined, that these individual claims were originally just, and that the Government of the United States, having appropriated them for a “national” purpose, was substituted for France as debtor.

OBJECTIONS.

Assuming the obligation of the United States, the question occurs, What sum should be applied by Congress to its liquidation? But before proceeding to this point, the Committee will glance at what is urged sometimes against this obligation, so far at least as they are aware of opposition.

* * * * *

Objections of a preliminary character have been already considered; but there are others belonging properly to this stage of the inquiry.

Curiously, the two main objections most often adduced answer each other flatly. It is sometimes insisted that the claims were invalid, by reason of the abnormal relations between France and the United States anterior to the Convention of 1800, pronounced to be a state of war; and then, again, it is sometimes insisted that these claims were provided for in the subsequent Convention of 1803 for the purchase of Louisiana. But, if the claims were really invalid, as has been argued, it is absurd to suppose that France would have provided for them; and if they were really provided for, it is equally absurd to suppose that they were invalid. The two objections might be dismissed as equally unreasonable; but, since they have been made to play a conspicuous part, especially in Presidential vetoes, the Committee will occupy a brief moment in considering them.

Other objections, founded on the later Convention of 1831, on the Act of Congress annulling the French treaties, on the early efforts of the United States to procure satisfaction from France, and on the alleged desperate character of the claims, will be considered in their order.

I.--WAR DID NOT EXIST BETWEEN THE UNITED STATES AND FRANCE.

The anomalous relations between France and the United States anterior to the Convention of 1800 did not constitute a state of war so as to annul all pending claims. The contrary assertion is inconsistent with (1.) the facts of the case, (2.) the declarations of the two parties, and (3.) the nature of the Convention.

Before considering these several topics, it may be remarked, that, had there been a state of war, it would not follow that all prior rights otherwise valid were annulled, so at least as not to be revived at the close of the war. On one important occasion, the contrary has been held by our Government in its negotiations with Great Britain. The provision relative to the fisheries which appears in the Treaty of 1783 was not noticed in the Treaty of Ghent; and yet the United States did not hesitate to insist afterwards, that, though interrupted by the War of 1812, it remained in full force after the termination of the war. Doubtless, claims bearing the open cause of war, and failing to be recognized in the treaty of peace, are annulled; for the treaty is the settlement of pending controversies between the two powers. But the claims in question were not the open cause even of the anomalous relations between the United States and France, and they did not fail to have such recognition in the convention terminating those relations as to exclude all idea that they were annulled by war, or any other antecedent facts. It is not necessary to consider the effect of war, for it is easy to establish that war did not exist.

1. The facts of the case are all inconsistent with war. There was no declaration of war on either side; and, still further, throughout the whole duration of the troubles the tribunals of each country were open to citizens of the other, as in times of peace; so that a citizen of the United States was not an “alien enemy” in the courts of France, nor a Frenchman an “alien enemy” in the courts of the United States. This fact, which was presented by Mr. Clayton in his masterly discussion of the question, is most suggestive, if not conclusive.

It is true that diplomatic and commercial intercourse was suspended, that the two powers armed, and that on both sides force was employed. But this painful condition of things, though naturally causing great anxiety, did not constitute war. One power may, in its own discretion, suspend diplomatic and commercial intercourse with another; it may assume all the harness of war, and even use force in retaliation, retortion, or reprisal; but all this falls short of war, _especially when public acts and declarations show that war was not intended_. Such conduct tends to war, and, if continued, naturally ends in war. But it is not of itself that terrible transformation by which one nation, with all its people, is converted into the enemy of another nation, with all its people, so that every citizen of the one becomes the enemy of every citizen of the other, and all pending rights and contracts between them disappear, at least for a time.

If war be the extinguisher of claims, it is because, in theory, the claimant is supposed to have opportunity for reparation by seizing the property of the enemy, wherever he can find it on the high seas. But no reprisals against France were authorized by the United States; no war on private property was permitted; so that the only principle on which war is the extinguisher of claims fails to apply.

But not even an act of war constitutes war. The two parties determine if war exists. To their public acts and mutual declarations we repair for interpretation of their conduct.

2. On the part of the United States _the declarations are explicit_ that war did not exist, although it seemed imminent. Congress was convened in May, 1797, to deliberate on the threatening aspect of affairs, and adopt measures of public defence, which were continued in 1798 and 1799; but in all this series of acts there is constant and sedulous negation of the state of war. The Act of May 28, 1798, after reciting that “armed vessels sailing under authority or pretence of authority from the Republic of France have committed depredations on the commerce of the United States, and have recently captured the vessels and property of citizens thereof on and near the coasts,” proceeds to authorize the seizure of any such armed vessel; but nothing is said of war.[215] Another Act, bearing date the same day, authorizes a provisional army, “_in the event of a declaration of war_ against the United States, or of actual invasion of their territory by a foreign power, or of imminent danger of such invasion discovered in the opinion of the President to exist, _before the next session of Congress_.”[216] The Act of June 13, 1798, to continue in force only till the end of the next session, and renewed February 9, 1799, for a limited term, suspended commercial relations between the two countries, under penalties of forfeiture;[217] but such acts, however menacing, are absolutely inconsistent with an existing state of war, which of itself, without any additional act, suspends all commercial relations between the belligerent parties. The Act of June 25, 1798, authorizes our merchant vessels to subdue and capture any French armed vessel _from which an assault or other hostility shall be first made_.[218] The Act of July 6, 1798, respecting alien enemies, begins with the words of limitation, “_Whenever there shall be a declared war_ between the United States and any foreign nation.”[219] The Act of July 7, 1798, declares the treaties no longer “legally obligatory”;[220] but if war existed, such an act would have been superfluous. The Act of July 16, 1798, authorizes augmentation of the army “for and during the continuance of _the existing differences_ between the United States and the French Republic.”[221] The Act of March 2, 1799, also authorizes augmentation of the army, “_in case war shall break out_.”[222] Another Act, passed the next day, provides that certain troops authorized by the Act shall not be raised, “_unless war shall break out_ between the United States and some European prince, potentate, or state.”[223] And as late as February 20, 1800, while our envoys were on the way to Paris, another Act was passed, providing that further enlistments should be suspended, “_unless_, in the recess of Congress, and during the continuance of _the existing differences_ between the United States and the French Republic, _war shall break out_ between the United States and the French Republic.”[224] All these cumulative measures refer to war, not as actually existing, but only as a future possibility. Meanwhile there were “existing differences” only. Finally, on the 14th of May, 1800, four months before the signature of the Convention, and when the plenipotentiaries on each side were at a dead-lock, another Act was passed, authorizing the abandonment of the military preparations set on foot in contemplation of the contingency of war.[225] Such is a synopsis of testimony from Congressional legislation. And now, when it is considered that Congress alone, under the Constitution, has power to declare war, that it never made any declaration of war against France, and that throughout this whole period of trouble, in its whole series of acts, it expressly negatived the fact of war, is it not impossible to assert, that, according to the understanding of our Government, war actually existed? What Congress did, and what it failed to do, answer in the affirmative.

The declarations of the Executive are as explicit as the declarations of Congress. In the instructions to our plenipotentiaries, under date of October 22, 1799, the Secretary of State, after mentioning the spoliations of France, says: “This conduct of the French Republic would well have justified an immediate declaration of war on the part of the United States; but, _desirous of maintaining peace_, and still willing to leave open the door of reconciliation with France, _the United States contented themselves with preparations for defence_ and measures calculated to protect their commerce.”[226] These plenipotentiaries declared to the French, under date of April 11, 1800, that the Acts of Congress, “_far from contemplating a coöperation with the enemies of the Republic_, did not even authorize reprisals upon her merchantmen, but were restricted solely to the giving of safety to their own, till a moment should arrive when their sufferings could be heard and redressed.”[227] Again, in a despatch to our minister in England, under date of September 20, 1800, the Secretary of State, who was none other than John Marshall, says: “The aggressions sometimes of one and sometimes of another belligerent power have forced us _to contemplate and to prepare for war as a probable event_”:[228] not as an actual event already arrived, but only as a probable event. In the face of such declarations, who can say that war existed?

On the part of France the declarations are equally explicit. It is true, that, on the 12th September, 1800, in conversation, the French plenipotentiaries let drop fitful words, to the effect, that, “if the question could be determined by an indifferent nation, such a tribunal would say that the present state of things was war on the side of America, and that no indemnities could be claimed.”[229] But the context shows, that, to avoid the payment of these indemnities, they were driven to every possible subterfuge; and the whole suggestion is contrary to all the admissions of the French Government, both in the executive and legislative branches. Indeed, these very plenipotentiaries of France, in a formal communication to the American plenipotentiaries, under date of August 11, 1800, declared that “_the state of misunderstanding_ which has existed for some time between France and the United States, by the act of some agents rather than by the will of the respective Governments, _has not been a state of war, at least on the side of France_.”[230] We have already seen that it was not on the side of the United States. Then again, under date of December 12, 1801, they contented themselves with characterizing the relations of the two powers at this period as “_almost hostile_.”[231] At an earlier day, Talleyrand, as Minister of Exterior Relations, had written, under date of August 28, 1798: “France has a double motive, as a nation and as a republic, not to expose to any hazard the present existence of the United States. Therefore it never thought of making war against them; … _and every contrary supposition is an insult to common sense_.”[232] When the Convention, in its final form, was laid before the Legislative Assembly, one of the French plenipotentiaries charged with its vindication announced in a speech, November 26, 1801, that “it had terminated _the misunderstanding_ between France and America,” which, he said, had become such “that it was necessary the reconciliation should be hastened, if it was desired that it _should not become very difficult_.” A report was also made to the Legislative Assembly by M. Adet, formerly French minister to the United States, in which it is declared: “_There had not been any declaration of war_. Commissions granted by the President to attack the armed vessels of France are not to be regarded as a declaration of war. The will of the President does not suffice to put America in a state of war. In order to this a positive declaration of Congress is requisite. _None has ever existed._” And these legislative documents, so positive in character, are introduced by the learned editor in words which fitly characterize the international relations to which they refer, when he says that “they will serve to make known the causes which _momentarily disturbed the harmony_ of the two states.”[233] True enough. Unhappily, the harmony of the two states was disturbed, but war did not exist.

3. The terms of the Convention, and the final conditions of ratification, also, exclude the idea of war. Although beginning with a declaration that “there shall be a firm, inviolable, and universal peace,” borrowed, in precise words, from Mr. Jay’s treaty with Great Britain, the Convention of 1800 did not purport to be a treaty of peace; nor, indeed, as first executed, did it pretend to settle the questions between the two powers, except by postponing them to “a convenient time.” A war annulling claims could not be treated in this way. The American Senate admitted as much, when it limited the duration of the Convention to eight years, which, had war previously existed, would have turned the Convention into a truce. The First Consul confessed the same, when he added his far-reaching proviso, for which, of course, there would have been no occasion, if the claims of American citizens had been annulled by war; and again he testified, in his words at St. Helena, where he speaks of this Convention as having “annulled the _just claims_ which America might have made for _injuries done in time of peace_.” Thus falls the objection, so often urged, founded on the alleged existence of war. Strange, that, while so utterly untenable, it should gain a single supporter! There is one remark which belongs to the close of this topic. Even if France had affirmed that war existed, yet the United States constantly denied it at the time, both by legislative and executive acts; so that our Government is obviously estopped against its recognition, even if it fails to feel the indecency of such an excuse for any further denial of justice.

II.--THESE CLAIMS NOT EMBRACED IN THE LOUISIANA CONVENTION.