Chapter V: Conclusion (4)

The objection that these claims were provided for in the Convention of 1803, for the purchase of Louisiana, is equally groundless. It is difficult to understand how such a pretext was ever made; but the history of this question shows the strange shifts of opposition, especially when without restraint from knowledge of the subject. The most superficial glance shows that the two Conventions related to two different classes of claims. Those abandoned in 1800 were on account of spoliations, and in the nature of “torts.” Those protected in 1803 were “debts.” When it is considered how steadfastly the French plenipotentiaries in 1800 opposed the recognition of the claim for “torts,” and how the First Consul, by his positive proviso, required their renunciation, it is most unreasonable to assume that in 1803 they were formally recognized. This assumption becomes still more unreasonable, when it is understood that only at a comparatively recent period was the idea first broached; that it is without support in the documentary history of the Convention, or in any contemporary opinion; that it escaped the attention of the Board of Commissioners appointed under the Convention, as it escaped the attention of successive Secretaries of State, and also of Congressional Committees, reporting on the subject, until thus tardily it was brought forward as a last resort of opposition.

The Convention of 1800, which sacrificed the claim for “torts,” kept alive certain pending claims for “debts.”

“ART. V. The _debts contracted_ by one of the two nations with
individuals of the other, or by the individuals of one with
the individuals of the other, _shall be paid_, or the payment
may be prosecuted, in the same manner as if there had been no
misunderstanding between the two states. _But this clause shall
not extend to indemnities claimed on account of captures or
confiscation._”[234]

It will be observed how carefully the claims for spoliation were excluded from the benefit of this provision, which is limited positively to “debts.” Though apparently plain, the French Government found difficulties in its execution. Vexatious delays were interposed, and “debts” were treated little better than “claims,” so that our minister at Paris, Hon. Robert R. Livingston, was constrained to address the French Government, under date of March 25, 1802: “The fifth article of the treaty says, expressly, they shall be paid; but justice and good faith say it, independent of the treaty. Yet they remain unsatisfied; nor is the most distant hope as yet afforded them of when or how they will be paid.”[235] Such was the spirit of other correspondence. At last, by one and the same transaction, Louisiana was purchased, and these “debts” were provided for. The plenipotentiaries of the United States, Mr. Livingston and Mr. Monroe,--the latter for a second time plenipotentiary,--undertook to pay eighty millions of francs for the purchase, of which sixty millions were for France, and the remaining twenty millions for the payment of “debts” secured by the Convention of 1800; and these terms were embodied in a treaty and two associate conventions of the same date.

The treaty contained the terms of cession. One of the conventions regulated the terms of purchase, and the other provided that “_the debts_ due by France to citizens of the United States, _contracted before the 30th September, 1800_, shall be paid” according to certain regulations. It will be observed that these words descriptive of the “debts” are not unlike those employed in the fifth article of the Convention of 30th September, 1800.

The new Convention regulating the payment of “debts” begins with a preamble, setting forth the desire of the President and of the First Consul, “_in compliance with the second and fifth articles_ of the Convention of the 30th September, 1800, to secure the payment of the sum due by France to the citizens of the United States.” From the association of these two articles some hastily infer a purpose to revive the “claims” abandoned in the famous second article. But such revival, instead of being “in compliance” with that article, or, according to the corresponding French words of the Convention, _en exécution_ of that article, would be in direct contradiction of it. The allusion to the second article is obviously to carry into the Louisiana Convention the original exclusion of the spoliation “claims.” If any doubt could arise on this allusion, taken by itself, it would disappear, when we consider that the fifth article is both _inclusive_ and _exclusive_. It includes “debts contracted,” which are to be paid, and it excludes “indemnities claimed on account of captures or confiscations,” which are not to be paid. Thus the language of the preamble is justified, and the Convention is _in compliance_ with both the second and fifth articles of the original Convention.

If we examine the Louisiana Convention carefully, we find that “debts” alone are provided for. The first article, as we have already seen, declares, “_the debts_ due by France to citizens of the United States, contracted before the 30th September, 1800, shall be paid according to the following regulations.” The second article describes “_the debts_ provided for by the preceding article” as comprised in a conjectural note. The third article declares how “the said debts shall be discharged by the United States.” The fourth article more specifically defines _the debts_ as follows: “It is expressly agreed that the preceding articles shall comprehend _no debts_ but such as are due to citizens of the United States who have been and are yet creditors of France, for _supplies_, for _embargoes_, and _prizes made at sea_ in which the appeal has been properly lodged within the time mentioned in the said Convention, 30th September, 1800.” The fifth article explains further the prizes intended in the fourth article, as follows: “The preceding articles shall apply only, 1st, to captures of which the Council of Prizes shall have ordered restitution, it being well understood that the claimant cannot have recourse to the United States otherwise than he might have had to the Government of the French Republic, and only in case of insufficiency of the captors; 2d, _the debts_ mentioned in the said fifth article of the Convention of 1800, the payment of which has been heretofore claimed of the actual Government of France, and for which the creditors have a right to the protection of the United States. The said fifth article does not comprehend prizes whose condemnation has been or shall be confirmed.” Under the first head, the class of captures is here defined. It was those only where the Council of Prizes had ordered restitution, being captures not warranted by the laws of France. Such cases were included among “debts,” because the decree of the Council of Prizes ordering restitution instantly created, on the part of the owner, a claim on the captor for the property or its value; and where the captor was “insufficient,” the Government assumed the debt. _And this is the only class of captures provided for in the Louisiana Convention_. Under the second head are specified “_the debts_ mentioned in the fifth article,” with an express declaration that it “does not comprehend prizes whose condemnation has been or shall be confirmed.” Thus in every article and at every stage the spoliation claims are excluded from the benefit of the Louisiana Convention.

Such was the contemporary conclusion of our minister at Paris, Mr. Livingston, who, in his letter to the French Government of April 17, 1802, said: “The fifth article expressly stipulates that _all debts_ due by either Government to the individuals of the other shall be paid. But as this would also have included _the indemnities for captures and condemnations previously made_, and it was the intention of the contracting parties, by the second article, to preclude this payment, as depending on a future negotiation, _it was necessary to except from this promise of payment all that made the subject of the second article_: … as to the payment of indemnities for embargoes in consequence of the cargoes being put in requisition, or with a view to any other political measure which carried with it nothing hostile to the United States, no controversy ever arose between the plenipotentiaries of the two nations.”[236]

Surely this objection may be dismissed.

III.--THESE CLAIMS NOT EMBRACED IN THE CONVENTION OF 1831 WITH FRANCE.

Another objection has been started, kindred to the last, also in kindred ignorance. It is said that these claims were embraced in the later Convention of 1831 with France, under Louis Philippe. No mistake can be greater.

That Convention opens with these words: “The French Government, _in order to liberate itself completely from all the reclamations preferred against it by citizens of the United States_ for unlawful seizures, captures, sequestrations, confiscations, or destructions of their vessels, cargoes, or other property, engages to pay a sum of twenty-five millions of francs to the Government of the United States, who shall distribute it _among those entitled_, in the manner and according to the rules which it shall determine.”[237]

This provision must be interpreted in the light of preceding treaties, especially of that which had occupied so much attention. They are all _in pari materia_, and therefore, according to a familiar rule of jurisprudence, must be taken together. But the Convention of 1800, by the proviso of the First Consul at its ratification, _liberated France completely_ from all liability for the claims now in question, so that they ceased to be valid against her. Therefore these claimants could not be “among those _entitled_” under the later Convention. This interpretation is confirmed by the judgment of the French Government, and also by the judgment of our own Commissioners under the Convention. Mr. Rives, our minister at Paris, writing to Mr. Van Buren, the Secretary of State at the time, under date of February 18, 1831, says: “From what I have been able to learn of ----’s report, it is favorable throughout to the principle of our claims. It excludes, however, the claims of American citizens in the nature of debt or of supplies, as being alien to the general scope of the controversy between the two Governments,--and also American claims of every description originating previous to the date of the Louisiana arrangement, in 1803, which has been invariably alleged by this Government to be in full satisfaction of all claims then existing.”[238]

Our own Commissioners, sitting at Washington, reported to the Secretary of State, under date of December 30, 1835, that they had required every person seeking _to entitle_ himself under the Convention to show that his “claim remained unimpaired and in full force against France at the date of the Convention of 1831.”[239] But the claims in question did not come within this category. Clearly, they were not “unimpaired and in full force against France.”

All this is apparent on the face; but it was demonstrated by the action of the Commissioners. The experiment was made with regard to captures prior to the ratification of the Convention of 1800, and no less than one hundred and four cases were submitted to the board. All but four were rejected. The first rejections, in point of time, were January 11, 1833, in two different cases, when we have the following entries: “Caroline, captured February 10, 1798,--rejected,--_the vessel having been captured before the 30th September, 1800_”; “Brig Orlando, captured March 1, 1800,--rejected,--_the capture having been made anterior to the 30th September, 1800_.”[240] The indemnities allowed by the Commissioners were mainly for captures under the decrees of Berlin, Milan, Rambouillet, and Trianon,--that succession of sweeping edicts by which Napoleon at the height of power enforced his Continental system. There were four awards for captures after the signature of the Convention of 1800, and before its ratification. As such cases, occurring during this intermediate period, were plainly saved from the renunciation of the Convention of 1800,[241] and yet were not included in the Convention of 1803, they came naturally within the scope of the Convention of 1831. The claims in question had no such advantage. Renounced in 1800, they were not adopted in 1831. But, ceasing to be claims upon France, they have become claims upon the United States.

IV.--THESE CLAIMS NOT AFFECTED BY THE ACT OF CONGRESS ANNULLING THE FRENCH TREATIES.

Then it is said that the French treaties were annulled by Act of Congress, so as to render the set-off and mutual release a mere form, and nothing else. This objection, also, proceeds in ignorance of the question.

It is true, the United States, by Act of Congress, July 7, 1798, declared the treaties heretofore concluded with France _no longer obligatory_.[242] But the question still remained as to the effect of this Act. Not purporting to be retrospective, all obligations under the treaties at that date were fixed, whether on the part of the United States or on the part of France. Therefore France, besides constant liability under the Law of Nations, was liable also under the treaties for all depredations anterior to this date, and the United States were liable for all non-performance of obligations anterior to this date. Assuming that the treaties were annulled, it is evident that the anterior claims of each were not in any way affected; so that there was still, even under the treaties, occasion for set-off and mutual release.

The depredations upon our commerce were not merely in violation of ancient treaties, but also of the Law of Nations; so that, even if the treaties were annulled, yet the Law of Nations remained with its obligations and remedies. Our plenipotentiaries were instructed to obtain compensation for captures and condemnations contrary to the Law of Nations generally received in Europe, or to stipulations of treaty, so long as the latter “remained in force.” As the treaties “remained in force” until July 7, 1798, we were unquestionably liable to France for indemnities to that day. Before that day the West India islands were lost. Before that day we excluded French privateers and their prizes from our ports. All proper damages for these things must have entered into the French account against us. Therefore the annulling Act of Congress could affect only the _quantum_ of consideration on both sides at the set-off and mutual release, and not the fact of consideration.

But it is more than doubtful if the annulling Act could have the effect attributed to it. Can one of two parties render a contract void by mere declaration to that effect? Between two individuals this cannot be done. Could it be done between two nations? Mr. Jefferson thought not. At least, there is a report from him on another occasion completely covering this case. These are his words: “It is desirable in many instances to exchange mutual advantages by legislative acts rather than by treaty; because the former, though understood to be in consideration of each other, and therefore greatly respected, yet, when they become too inconvenient, can be dropped at the will of either party; _whereas stipulations by treaty are forever irrevocable but by joint consent, let a change of circumstances render them ever so burdensome_.”[243] Chief Justice Marshall quotes another opinion, where a treaty was declared to be not only the law of the land, but a law of a superior order, “because it not only repeals past laws, _but cannot itself be repealed by future ones_.”[244] Such authority would seem to settle this question, especially reinforced as it is by the Law of Nations; for it must not be forgotten that the obligation of treaties is determined by International Law rather than by Municipal Law.

Even supposing the Act of Congress had succeeded in annulling the treaties, its effect, as regards France, was not so much to discharge her claims as to make them perfect. In plain terms, it was a final determination on our part not to fulfil the treaties. The circumstances of the time, perhaps, rendered it necessary; but your Committee cannot fail to observe, that, according to all principles of justice and the established usage of nations, this very determination consummated the right of France to indemnities for non-observance of the treaties. On our part there was no longer any pretence to fulfil the treaties; so that this very Act of Congress, which is cited to excuse us, may be cited to condemn us.

Whatever the law of this case, even assuming, that, according to good opinions, the treaties were annulled on the 7th July, 1798, it is perfectly clear that at the negotiation of 1800 they were treated by France as obligatory. On these she founded her counter-claims. The present narrative shows her persistency. As often as our claims were urged, her counter-claims were pressed in reply. And why ask the renunciation of the treaties, if the Act of Congress had already annulled them? Why, further, offer a large sum of money for release from their obligations? Whatever the effect of the annulling Act in the judgment of the American plenipotentiaries, it is clear that they regarded the treaties as a cloud to be removed. And it is equally clear that the French plenipotentiaries to the last maintained the obligations of the treaties. The instructions of the First Consul, before entering upon his Italian campaign, were to make “the acknowledgment of former treaties the basis of negotiation and the condition of compensation.”[245] It was the finality of these instructions which at the time caused the dead-lock already described. Thus, on the part of the United States, the obligation of the treaties was denied subsequently to July 7, 1798, while on the part of France it was affirmed as an indispensable condition down to the negotiation.

Therefore, on the part of the United States, there were claims under the treaties anterior to July 7, 1798, and also under the Law of Nations generally. On the part of France there were counter-claims under the treaties down to the negotiation. Each side was tenacious. Neither would yield. The time for compromise arrived. Then came the set-off and mutual release. The transaction was between two nations, but it was identical in character with transactions often occurring between two individuals.

V.--EARLY PERSISTENCY TO SECURE INDEMNITIES FROM FRANCE NO GROUND OF EXEMPTION FROM PRESENT LIABILITY.

The persistent efforts of our Government, anterior to the Convention of 1800, are sometimes brought forward as sufficient reason for present indifference. This also is a mistake.

It is true that our Government exerted itself much. Considering its comparative immaturity, it deserves credit for the courage and determination with which it labored. But it must not be forgotten that in all it did, even for the recovery of indemnities, it acted under the duties and instincts of national defence. Our commerce was despoiled, to the detriment of American citizens. But this grievance, which went on assuming larger proportions, proceeded directly from the _hostile spirit_ of France, aroused by alleged infraction of national obligations on our part; so that behind the question of indemnities rose always the question of self-defence. France made reprisals because the United States refused compliance with solemn treaties, and, as is usual in such cases, individual citizens were the sufferers. Defending the interests of its citizens, the country itself was defended. To abandon these interests, especially without securing an abandonment of French pretensions, would have been an abandonment of the country, leaving it the dishonored victim of untold exactions without end. If this be correct,--and your Committee do not see how it can be controverted,--there can be no boast of extraordinary efforts, all of which, whatever form they assumed, were in the performance of a patriotic duty, simple as the filial devotion of Cordelia, “according to her bond, nor more nor less.”

And now the fidelity of that early day, when duty was done, is the apology for infidelity to-day, when duty is left undone; and those patriotic efforts are vouched as a title to present exemption. Because the Government was zealous for indemnities when France was responsible, _argal_ it may be indifferent now, when the United States are substituted for France. Or has it come to this,--that it is right to be zealous in pressing a foreign Government, but not right to be zealous against ourselves, _when substituted for that foreign Government_, as in the present case? Beyond the misconception of public duty apparent in this pretence, it forgets the true state of the question. Here, again, we are brought to the Convention of 1800, when both claims and counter-claims were adjusted. If the claims on our side had been deliberately rejected, or if our Government had been compelled to withdraw, as in a case of nonsuit, the case might have been otherwise. There was no rejection, and no nonsuit, but, as has been so fully shown, a set-off and mutual release, by which each party accorded to its adversary just as much as it claimed for itself. So far as the two Governments were concerned, claims and counter-claims were extinguished, and neither could look to the other; but it did not follow that American citizens, whose “individual” claims had been appropriated to extinguish “national” obligations, were cut off from appeal to their own Government. On the contrary, the very zeal for these claimants, while they looked to France, is still due in their behalf, now that, by the action of their own Government, they must look to their country.

It is sometimes said in sarcasm that it is easy to be generous at the expense of another; but in this case, now that the responsibility has been transferred to our own country, it is not a question of generosity, but of debt. The property of these claimants is actually in the hands of our Government, like assets paid over and deposited “for whomsoever it may concern,”--or, to use a more pungent illustration, like certain property to which there can be no valid title against the original owner. Stolen goods may be followed wherever found. But the vessels of these claimants were stolen by France, and at last are found in the hands of our own Government. Will the Government hold them against the real owners? For nearly ten years it denounced the conduct of France. How, then, can it profit by this conduct at the expense of its own citizens? If the receiver is as bad as the original offender, how can the Government expect to escape the indignant condemnation it fastened upon France? Least of all, how can any early persistency to recover this property excuse its detention now?

VI.--THESE CLAIMS NEVER DESPERATE, SO AS TO BE OF NO VALUE.

Kindred to the last objection is the assertion that the claims were intrinsically desperate, so as to be of no value,--an objection as humiliating as false.

It is humiliating, because it assumes that claims solemnly declared just, both by the executive and legislative branches,--the former by successive acts of diplomacy, and the latter by successive Acts of Congress,--were of “no value.” If this were true, then was our Government, when it sued these claims, guilty of national _barratry_, for which it would deserve to be thrown over the bar of nations. It was a stirrer of false suits. Such an imputation is an impeachment of the national character.

But it is false. The claims were never “desperate,” except so far as they were doomed to meet the counter-claims of France. On the contrary, they were intrinsically just, and their justice was often admitted even by France, who advanced against them her own pretensions under the treaties. And when the set-off and mutual release occurred, their validity was solemnly recognized; nay, more, they were paid to the United States. Such is the inconsistency of objectors, insisting that claims thus recognized and paid were so far “desperate” as to be of “no value,” when they were of sufficient value to form the sole consideration of release from immeasurable national obligations. If you would find a measure of value for the American claims, you must look to the counter-claims of France, not forgetting that all the vehemence with which these were sustained testifies unmistakably to our claims.

If we may judge from our national history, there is no reason to doubt that these claims, if not released by our Government, would have been fully satisfied by France afterwards. It is in the nature of claims on foreign powers to seem desperate. Such was the case, as is well remembered, with the claims on Denmark, on Spain, and on Naples; but all these have been paid. _No just claim by the American Government can be desperate._ What claims could seem more desperate than those under the arbitrary, wide-spreading edicts of Napoleon Bonaparte in his pride of place? But President Jackson, when Louis Philippe had become King, made an appeal, as he expressed it, “to the justice and magnanimity of regenerated France,”[246] and even these claims, accruing under a Government which had ceased to exist, were satisfied. The claims in question had as much intrinsic equity, and were more intimately associated with the national sentiments. Asserting that they would have been paid, the Committee are sustained not only by the reason of the case, but by the judgment of the disinterested historian of our country, who thus concludes his account of the Convention of 1800, and its final ratification with the proviso of the First Consul:--

“Had the treaty been ratified in its original shape, the
sufferers by the spoliations of the French might, perhaps,
before now, have obtained that indemnity from the French
Government which they have ever since been asking of their own,
but which has hitherto been unjustly withheld.”[247]

There is no statute of limitations between nations; so that these claims would have been as valid against France in 1831 as they unquestionably were in 1800. A nation like the United States has only “to bide its time,” and the day of justice will come. Indeed, President Jackson, when dwelling on the negotiations with France in 1831, bore testimony to the vitality of American claims on foreign powers, when he said that the new Convention would be “an encouragement for perseverance in the demands of justice, by this new proof, that, if steadily pursued, they will be listened to, and admonition will be offered to those powers, if any, which may be inclined to evade them, _that they will never be abandoned_.”[248] These words of Andrew Jackson are a sufficient answer to the present objection.

ALL OBJECTIONS ANSWERED.

Such are the objections to the responsibility of the United States. The Committee believe that they have all been answered, so that the claims stand above impeachment or question, as a debt to be liquidated and paid. It only remains to consider what sum should be appropriated for this purpose.

JUST COMPENSATION.

The “just compensation” to be paid by the United States may be regarded, according to the classical report of Mr. Livingston, in two lights: _first_, the value of the advantages to the United States at the expense of these claimants; and, _secondly_, the actual losses sustained by these claimants. Neither is proposed as an absolute measure. A glance at each will enable us to arrive, by approximation, at a proper result.

VALUE OF ADVANTAGES TO THE UNITED STATES.

It is impossible to estimate in money the advantages to the United States. Beyond the great boon of assured peace, under which our commerce, no longer exposed to spoliation, put forth at once more than its original life, two specific objects were gained: _first_, exemption from all outstanding engagements and liabilities of every nature under the early treaties with France; and, _secondly_, the establishment of a new Convention, which, while rejecting much-debated claims and counter-claims, provided positive advantages to the United States, among which was that payment of “debts” subsequently assured by the Louisiana Convention.

If the United States could be held responsible to France for the treasure lavished on national independence, in pursuance of these original treaties, there would be an item of fourteen hundred and forty millions of francs, or about two hundred and eighty millions of dollars.[249] The brave lives sacrificed for us cannot be estimated in any account; but France did not forget them. Even amidst the congratulations at Morfontaine in honor of the Convention, the First Consul reminded the joyous company of the sacrifice. Beyond the toast he proposed in honor of those who fell in battle for the independence of the New World, there is no record of what was said by the successful general of France; but old Homer, in one of his most touching passages, had already spoken for him:--

“Life is not to be bought with heaps of gold;
Not all Apollo’s Pythian treasures hold,
Or Troy once held in peace and pride of sway,
Can bribe the poor possession of a day.
Lost herds and treasures we by arms regain,
And steeds unrivalled on the dusty plain;
But from our lips the vital spirit fled
Returns no more to wake the silent dead.”[250]

Under the sod of America, and under the waves of the Atlantic, Frenchmen were sleeping whose lives had been given to the support of our cause. If France did not forget them, let it be spoken in her honor; but we cannot forget them, as we try to state the great account between our two countries. Their swords, if flung into the scales, whatever “heaps of gold” we might bring, would forever turn the balance against us.

But how estimate the value of release from the “guaranty” retrospectively and prospectively, as well for past failures as future liabilities? It was often urged that the guaranty bound the United States to the support of France only in the event of a defensive war, and that the war in which she had been engaged was not of this character. But it is more than doubtful if either proposition can be maintained. The guaranty on its face has no limitation. And even if it had such limitation, who will venture to say that the war in which France drove back her multitudinous assailants, reinforced by the navies of England, was not defensive? If France did not at once require the execution of the guaranty, it was none the less a vital obligation.

That our Government appreciated the embarrassments, if not the obligations, which the guaranty entailed, has already been shown by the Committee. But there are certain words that may be fitly quoted again. In the instructions of our Secretary of State to the first triumvirate of plenipotentiaries at Paris, under date of July 15, 1797, it is admitted that “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.” On this account the plenipotentiaries were instructed to obtain its release, and “on the part of the United States, instead of troops or ships of war, to stipulate for a moderate sum of money or quantity of provisions, at the option of France, … not to exceed two hundred thousand dollars a year.”[251] This was moderate; but it was a recognition of the guaranty, and of its practical value. The next triumvirate, at the negotiation of 1800, offered more. They proposed to buy out the guaranty by a payment of five millions of francs, or one million of dollars.[252] It is needless to say that both these offers were rejected.

It would be as difficult to measure in money the value of that guaranty, retrospectively and prospectively, as to measure in money our obligations to France in the assurance of national independence. The liabilities for failure prior to 1800, if pressed, would not have been inconsiderable. But had the guaranty continued so as to constrain the United States throughout the long war that followed, ending at Waterloo, what arithmetic can calculate the damage? Nay, more,--if, at the present moment, any such guaranty bound us to France, who would not feel that it was an obligation from which we must be released at any price?

Besides the obligations of “guaranty,” were other engagements with regard to French armed ships in our ports which had proved most onerous. Here, also, was alleged failure on our part; and there was the prospect of infinite embarrassment, if not of open war, unless these obligations were cancelled. To keep them would cause collision with England; not to keep them would cause collision with France. Our plenipotentiaries offered, in the negotiation of 1800, three millions of francs for release from these obligations.[253] This moderate offer was rejected also.

France continued stubborn, insisting upon the ancient treaties, with all consequent indemnities. At last, by the propositions of the 4th of September, 1800, already exhibited by your Committee, a measure of value was affixed to our engagements and liabilities. France undertook to release us from all these on condition that we would pay the indemnities due to our citizens, thus treating claims and counter-claims as equivalent in value. It was required positively that “the indemnities which shall be due by France to the citizens of the United States _shall be paid for by the United States_.”[254] In consideration of release from the treaties, the United States were to assume the obligations of France to American claimants. How this proposition, rejected at first, eventually prevailed in the Convention and its successive amendments has been already explained. It is mentioned now only to show the value of these engagements and liabilities.

ACTUAL LOSSES TO CLAIMANTS.

The practical question remains, as to the actual losses of the claimants. Here the evidence is precise and full.

Our own Government, when pressing these claims upon France, gave an official estimate of their value. On one occasion it put them above fifteen million dollars.[255] Afterward it put them at twenty million dollars. The latter estimate is found in a report from the Secretary of State to Congress, under date of January 18, 1799, where it speaks of “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_.”[256] Inquiry into the losses confirms this statement. From evidence presented to committees in former years, and now belonging to history, it has been estimated that there were _eight hundred and ninety-eight vessels_ included in the claims released to France.[257]

The American vessels despoiled by France between 1792, the outbreak of the European war, and July 31, 1801, when the Convention of 1800, with its proviso, was ratified by Napoleon Bonaparte, have been reckoned at two thousand two hundred and ninety, embracing as follows: first, vessels captured by the French; secondly, vessels captured by the French and Spaniards conjointly; thirdly, vessels detained by embargo at Bordeaux. The following list shows how the account stands.

_List of Vessels in different Classes despoiled by France._[258]

Whole number 2,290
From which deduct as follows:--
1. Vessels paid for by special decrees of France 14
2. Vessels paid for under the Convention of 1803, viz.:--
For embargoes 103
For contracts 270
For prize causes under order of restitution 6
---- 379
3. Vessels rejected under Convention of 1803, viz.:--
For contracts or supplies 102
For prize causes 26
---- 128
4. Vessels paid for by Spain under the Florida treaty
of 1819 173
5. Vessels rejected under Florida treaty 191
6. Vessels paid for under Convention with France of
July 4, 1831, being for captures between the
signing and ratification of the Convention of
1800 4
7. Vessels rejected for want of merit, neglect of claimants,
loss of proof, and other contingencies,
reckoned at 503
---- 1,392
------
898

Thus we are brought to the number of _eight hundred and ninety-eight vessels_ bartered to France.

To arrive at the value of these vessels, the Committee have been led to look at the estimate of vessels under conventions with other powers for the payment of similar claims. Here is a list allowed by different powers, with the average of each vessel:--

Vessels. Averages.
Great Britain 217 $47,672.81
Spain 40 8,136.49
France 357 10,504.20
Spain 320 15,625.00
Denmark 112 5,987.17
France 361 12,984.71
Naples 51 37,745.00
Spain 20 30,000.00
Mexico 64 31,658.43
Colombia 5 21,474.53
------ ----------
1,547 $221,788.34

From this list it appears that Mexico has paid as high an average as $31,000 for each vessel; Naples, $37,000; and Great Britain, $47,000. The general average of the whole list is $19,000.

If the vessels despoiled by France were estimated according to the highest average, namely, that of vessels despoiled by Great Britain, the sum-total would swell to no less than $42,206,000; estimated according to the general average, the amount is $17,062,000.

But the valuation which has been deemed most satisfactory is that presented in the indemnity paid by Spain for the French spoliations on our commerce in her ports during this period, amounting, for 173 vessels, to $2,845,619, being an average of $16,500 for each vessel. Adopting this average, we have as the aggregate value of the 898 vessels yielded to France under the Convention of 1800, and lost to our merchants, the sum of $14,817,000,--nearly _fifteen million dollars_.

This estimate, tested by the official statements, fixing the spoliations in October, 1797, at fifteen millions, and in January, 1799, at twenty millions, will appear at least not excessive,--adding for the continued spoliations during the succeeding two years and a half to July, 1801, only the very moderate allowance of two and one half millions, (being in the ratio of but one fourth the increase for the fifteen months between the two former dates,) and deducting payments. Here are the figures:--

Official estimate of January, 1799 $20,000,000
Additional to July, 1801, say 2,500,000
----------
$22,500,000
Deduct therefrom--
1. Vessels paid for by France, fifty-two cases,
at the average $16,500 $858,000
2. Debts paid under Convention of 1803 3,750,000
3. French spoliations, paid for under treaty
with Spain of 1819 2,845,619
----------
7,453,619
----------
Sum-total, after deductions $15,046,381

If to this estimate interest be added, even at the smallest rate, the losses of these sufferers will assume vastly larger proportions. More than sixty years have run their course since the United States, by a public act and for a valuable consideration, became their debtor. From the beginning the country has enjoyed without price all the “national” benefits originally secured at their expense, as part of the national capital with its bountiful income, while these claimants have been shut out from their property, and all its just profits. If interest be due on any national debt, it is difficult to see why it is not due here.

Never was a case stronger. Nor is there any doubt with regard to the rule. According to the best authorities, whether publicists or courts, interest is justly due. Though swelling the national liability, it is none the less an item in the case.

It will be borne in mind that these claims are under the Law of Nations. As such, the rule of damages is under that law, and not Municipal Law. Therefore the Committee resort to the Law of Nations. Among all the authorities, none has spoken more fully and clearly than Rutherforth; nor is there any one whose words on this point are oftener cited. Here is the rule:--

“In estimating the damages which any one has sustained, where
such things as he has a perfect right to are unjustly taken
from him, or withholden, or intercepted, we are to consider not
only the value of the thing itself, but the value likewise of
the fruits or profits that might have arisen from it. He who is
the owner of the thing is likewise the owner of such fruits or
profits. So that it is as properly a damage to be deprived of
them as it is to be deprived of the thing itself.”[259]

Grotius says substantially the same.[260] So does Vattel, who declares that claimants may obtain “what is due, _together with interest and damages_.”[261] And Wheaton copies Vattel.[262] The Supreme Court of the United States gives the same rule with nearly equal simplicity:--

“The prime cost, or value of the property lost at the time of
the loss, and, in case of injury, the diminution in value by
reason of the injury, _with interest upon such valuation_,
affords the true measure for assessing damages.”[263]

Such is the law of interest, and the Committee refer to it as illustrating the accumulated losses which await satisfaction at the hands of Congress.

RECOMMENDATIONS OF THE COMMITTEE.

The Committee, impressed by the original justice of these claims and the present obligation of the United States, do not hesitate to recommend their liquidation and payment at an early day, as they would recommend the discharge of a national debt. While setting forth the unanswerable evidence of their value, they content themselves with the recommendation made many years ago, and repeated by successive committees of both Houses of Congress, limiting the appropriation to a sum not exceeding five million dollars, without interest, to be distributed by a board of commissioners _pro rata_ among the claimants, according to the provisions of the bill reported herewith. The limitation is a departure from strict justice, but it is part of the additional sacrifice which seems to be expected by Congress from these long-suffering claimants.

In deference to the Secretary of the Treasury,[264] who, when consulted thereupon, objected to the creation of a stock for this special purpose, as provided in former bills, it is proposed that the money be paid whenever Congress shall make an appropriation therefor.

By positive description the bill is made to cover claims for illegal captures and condemnations prior to July 31, 1801, the date of the final ratification of the Convention. But, by positive words of exclusion, it is provided that the bill shall not cover claims originally embraced in the Louisiana Convention of 1803, in the treaty with Spain of 22d February, 1819, or in the Convention with France of July 4, 1831; so that, in point of fact, the bill is carefully limited to those original claims which, after postponement by the second article of the Convention of 1800, were, at its final ratification, definitely renounced by the United States, in consideration of equivalent renunciations from France.