Report in the Senate, of the Committee on Foreign Relations,
April 4, 1864.
April 14th, the Senate, after debate, ordered three thousand extra
copies of this report,—Yeas 23, Nays 19. Mr. Reverdy Johnson,
while urging the extra copies, remarked: “The report is quite an
elaborate one, drawn up with all the fulness which characterizes papers
of this description prepared by the Chairman of the Committee on
Foreign Relations. He has collected together, very accurately, I have
no doubt, all the facts connected with the claims. He has given the
history of the proceedings in Congress and the proceedings of the Executive,
and has examined very fully all the principles of law applicable
to the questions which the claims present.”
The same report was subsequently adopted by the Committee on
Foreign Relations, and printed by the Senate, March 12, 1867, and
also January 17, 1870.
The Committee on Foreign Relations, to whom were referred
numerous petitions and resolutions of State Legislatures,
taken from the files of the Senate, and also the petition of
sundry citizens of New York, presented at the present session,
asking just compensation for “individual” claims on
France, appropriated by the United States to obtain release
from important “national” obligations, have had the
same under consideration, and beg leave to report.
The welfare of the Republic requires that there
should he an end of “suits,” lest, while men are
mortal, these should be immortal. Such is a venerable
maxim of the law, illustrated by the case before the
Committee. The present claims have outlived all the
original sufferers, and at least two generations of those
who have so ably enforced them in the Halls of Congress.
Against their unwonted vitality death has not
been able to prevail.
Of all claims in our history, these are most associated
with great events and great sacrifices. First in time,
they are also first in character, for they spring from the
very cradle of the Republic and the trials of its infancy.
To comprehend them, you must know, first, how independence
was won, and, secondly, how, at a later day,
peace was assured. Other claims have been personal or
litigious; these are historic. Here were “individual”
losses, felt at the time most keenly, and constituting an
unanswerable claim upon France, which, at a critical
moment, were employed by our Government, like a
credit or cash in hand, to purchase release from outstanding
“national” obligations, so that the whole country
became at once trustee of these sufferers, bound,
of course, to gratitude for the means thus contributed,
but bound also to indemnify them against these losses.
And yet these sufferers, thus unique in situation, have
been compelled to see all other claims for foreign spoliations
satisfied, while they alone have been turned away.
At the beginning of our history, our plundered fellow-citizens
obtained compensation to the amount of many
million dollars on account of British spoliations. Similar
indemnities have been obtained since from Spain,
Naples, Denmark, Mexico, and the South American states,
while, by the famous Convention of 1831, France contributed
five million dollars to the satisfaction of spoliations
under the Continental system of Napoleon. Spain stipulated
to pay for every ship or cargo taken within Spanish
waters, even by the French; so that French spoliations
on our commerce within Spanish waters have been paid
for, but French spoliations on our commerce elsewhere
before 1800 are still unredeemed. Such has been the
fortune of claimants the most meritorious of all.
In all other cases there has been simply a claim for
foreign spoliations, but without superadded obligation
on the part of our Government. Here is a claim for
foreign spoliations, the precise counterpart of all other
claims, but with superadded obligation, on the part
of our Government, in the nature of a debt, constituting
an assumpsit, or implied promise to pay; so
that these sufferers are not merely claimants on account
of French spoliations, but they are also creditors
on account of a plain assumption by the National Government
of the undoubted liability of France. The appeal
of these creditor claimants is enhanced beyond the
pecuniary interests involved, when we consider the nature
of this assumption, and especially that in this way
our country obtained final release from embarrassing
stipulations with France contracted in the war for national
independence. Regarding it, therefore, as debt,
it constitutes part of that sacred debt incurred for national
independence, and is the only part now outstanding
and unpaid.
Before proceeding to consider the nature of existing
obligations on the part of the United States, the Committee
ask attention to three objections which they
encounter on the threshold: the first, founded on the
alleged antiquity of the original claims; the second, on
the alleged character of the actual possessors; and the
third, on the present condition of the country.
It is said that the claims are ancient and stale,
and therefore not to be entertained. It is true that the
claims are the most ancient of any now pending, and
that they date from the very origin of our existence as
a nation. But in this respect they do not differ from a
Revolutionary pension or a Revolutionary claim. Down
to this day there is a standing committee of the Senate,
entitled “Committee on Revolutionary Claims”; but if
a claim traced to the Revolution must be rejected for
staleness, there can be little use for this committee. If
these claims, after uninterrupted sleep throughout the
long intervening period, were now for the first time
revived, they might be obnoxious to this imputation.
But, as from the beginning of the century they have
occupied the attention of Congress, and been sustained
by speeches, reports, and votes, it is impossible to say
that they have been allowed to sleep.
The whole case was stated with admirable succinctness,
as long ago as 1807, by Mr. Marion, of South Carolina,
in the report of a committee of the House of Representatives.
“From a mature consideration of the subject, and from
the best judgment your Committee have been able to form
on the case, they are of opinion that this Government, by expunging
the second article of our Convention with France of
the 30th September, 1800, became bound to indemnify the
memorialists for those just claims which they otherwise would
rightfully have had on the Government of France, for the
spoliations committed on their commerce by the illegal captures
made by the cruisers and other armed vessels of that
power, in violation of the Law of Nations, and in breach of
treaties then existing between the two nations; which claims
they were, by the rejection of the said article of the Convention,
forever barred from preferring to the Government of
France for compensation.”[111]
Claims thus authoritatively stated at that early day
cannot be overcome by any sleep.
It is true that these claims were pressed with less
constancy and determination at the beginning of the
century than at a later day. But there are two sufficient
reasons for the change. First, the evidence on
which they are founded was less generally known at
the beginning than afterward. It was only in 1826,
under the administration of John Quincy Adams, by
the communication to Congress of the ample materials
accumulated in the Archives of State, that the true
strength of the case was fully revealed. Here, in one
full volume, was the documentary history of the whole
double transaction,[112] showing at once the original obligation
of France, and the substituted obligation of the
United States, reinforced by the associations of our
own Revolutionary history. A more sufficient reason
for this change is found in the fact, that for some time
in the early part of the century our country was still
laboring under pressure of the Revolutionary debt. As
this pressure was gradually removed, and the national
resources became more apparent, these claims were naturally
urged with more confidence, until, on the final
extinction of that debt, they occupied the attention of
the best minds in both Houses of Congress.
No single question in our history has been the subject
of such a succession of able reports. Whether counted
or weighed, these reports are equally exceptional. They
are no less than forty-one in number, twenty-two in
the Senate and nineteen in the House. Among the
eminent characters whose names they bear are Edward
Livingston, John Holmes, Edward Everett, Daniel Webster,
Caleb Gushing, Charles J. Ingersoll, John M. Clayton,
and Rufus Choate. Out of the whole number only
three have been adverse,—one in the Senate and two
in the House. But the three adverse reports were evasive
only, besides being prior to the communication of
the decisive evidence on the subject. The thirty-six
reports since that communication were all in favor of
the claims.[113]
Resolutions in favor of these claims by thirteen States,
being the original number which declared independence,
have been presented to Congress between the years 1832
and 1858. Some States, not content with one series,
have repeated their resolutions, and accompanied them
with elaborate arguments. They all tend to the conclusion
that it is the duty of Congress, without further
delay, to provide for these claims; and Senators and
Representatives are earnestly requested to use their
best exertions for an Act of Congress to carry this obligation
into effect.
Memorials and petitions from the beginning testify to
the sleeplessness of these claims. On the 5th of February,
1802, only forty-six days after the promulgation of
the Convention of 1800, they began, and they have continued
from that early day down to this very session of
Congress, making in all four thousand six hundred and
two. Of these, nineteen hundred and thirty-one were
in the Senate, two thousand six hundred and seventy-one
in the House. They are chiefly from original sufferers,
their executors, administrators, assigns, widows, and
heirs, residing in the large seaports from which the despoiled
vessels originally sailed; but there are some from
all parts of the country, where, in the vicissitudes of life,
the representatives of original sufferers have been carried,—all
of which may be seen in the list of these
petitioners.[114]
Two several times—once under President Polk, and
again under President Pierce—both Houses of Congress
concurred in an act for the relief of these claimants; but
this tardy justice was arrested by Presidential veto.
In the face of this constant succession of reports, resolutions
of State Legislatures, and petitions, constituting
not only “continual claim,” but continual recognition of
the claim,—the whole crowned by two several Acts of
Congress,—it is impossible to infer negligence in the
claimants, or, indeed, any assumption of inordinate confidence.
They have had good reason to believe that they
should be successful. Under such circumstances, the
lapse of time, sometimes urged against them, becomes
an argument in their favor; for it adds constantly recurring
testimony to their merits, besides a new title
from the disappointment to which they have been
doomed. Claims beginning thus early, and thus sustained,
may be ancient, but they cannot be stale.
A trivial remark, which is rather slur than objection,
may justify a moment’s attention. It is sometimes
said that these claims are no longer the property
of the original sufferers or their representatives, but that
they have passed, like a fancy stock, into the hands of
speculators. This remark, if it had foundation in fact,
has little in equity. It would be hardly creditable for
a government to take advantage of its own procrastination,
and refuse just compensation, because the original
sufferer had been compelled by unwelcome necessity to
discount his claims.
From the nature of the case, such claims, being unliquidated,
do not readily pass from hand to hand, but
remain in the original custody, as has become apparent
in ample experience. Precisely the same reflection was
cast upon the claims against Spain, Denmark, and Naples,—and,
indeed, it is cast upon long outstanding claims
generally, until it has become a commonplace of sarcasm.
The records of successive Commissions which have liquidated
foreign claims afford its best refutation. In every
case these Commissions required proof of property; but
the evidence disclosed that the original sufferers, or their
legal representatives, including heirs, executors, assignees
of bankrupts, persons having a lien for advances, or underwriters,
possessing in law and equity the same right
as the original sufferers, were actual possessors of the
larger part. There is no reason to suppose that it would
be otherwise with the claims for French spoliations. On
the contrary, it is believed that they remain substantially
unchanged, except by legal inheritance.
The great speculator has been Death; for there are few
of these claims that have not passed through his hands.
Such a transfer cannot draw the title into doubt, especially
when we consider the character of the petitioners
whose names are spread on the journals of Congress.
It is well known that in many families these claims still
exist as heirlooms, transmitted by ancestral care in full
confidence that sooner or later they will be recognized
by the Government.
It is sometimes suggested, that, even assuming the
meritorious character of these claims, yet, in the present
condition of the country, they ought to be postponed.
Looking at the practical consequences of this suggestion,
it will be found, that, though plausible in form, it is
fatal in substance. Any postponement must inevitably
throw these claims into direct competition with those
now accumulating on account of losses during the Rebellion,
having in their favor the swelling sympathies
of our time. It is not unjust to human nature, if the
Committee say that the distant in time, like the distant
in space, is too often out of mind. If the earlier
claims are just, they should not be exposed to the
hazards of any such competition, when feeling will be
stronger than reason. From the probability of future
claims, whose shadows already commence, the argument
is strengthened for the immediate satisfaction of those
now existing, especially when we consider their character
and origin.
The resources of the people are tasked to put down
the Rebellion which Slavery has aroused. Let nothing
be stinted. But there is another duty not to be forgotten.
The just debts of the Republic must be paid, to the
last dollar. Here, also, nothing must be stinted; and
the glory of the one will be kindred to the glory of the
other. The Republic will have new title to love at
home and to honor abroad, when with one hand it overcomes
the Rebellion now menacing its existence, and
with the other does justice to ancient petitioners, long
neglected, constituting the only remaining creditors left
to us from the War of Independence.
Therefore, putting aside all preliminary objections
from alleged antiquity, from the character of the actual
possessors, or from the present condition of the country,
the Committee insist that the present obligations of the
United States must be determined according to principles
of justice and the facts of the case. The hearing
now is as if there had been no lapse of time since the
obligations accrued, and as if no war now existed to task
the country.
Is the money justly due? To answer this question,
the subject must be considered in detail, under several
heads.
First. Claims of citizens of the United States against
France, founded on spoliations of our commerce, as seen
in their origin and history.
Secondly. Counter claims of France, founded on
treaty stipulations and services rendered in the War
of Independence, also as seen in their origin and history.
Thirdly. The Convention of 1800 and the reciprocal
release of the two Governments, by which the “individual”
claims of the petitioners were treated as a set-off
to the “national” claims of France.
Fourthly. The assumption by our Government of the
obligations of France, so that the United States were
substituted for France, and became liable to these petitioners
as France had been liable.
After considering these heads in their order, it will
be proper to review the objections alleged against the
liability of the United States: (1.) from the semi-hostile
relations between France and the United States anterior
to the Convention; (2.) from payments under the Louisiana
Treaty; (3.) from payments under the Convention
with France in 1831; (4.) from the Act of Congress annulling
the early treaties with France; (5.) from the
early efforts of our Government to obtain from France
the satisfaction of these claims; and (6.) from the desperate
character attributed to these claims at the time
of their abandonment.
The question of “just compensation” will present itself
last: (1.) in the advantages secured to the United
States by the sacrifice of these claims; (2.) in the value
of the losses which the claimants suffered; and (3.) in
the recommendation of the Committee.
The subject is of such importance, from the magnitude
of interests involved, and from its historic character,
that the minuteness of this inquiry will not be
regarded as superfluous.
The history of French spoliations on our commerce is
a gloomy chapter, where a friendly power, assuming the
name of Republic, shows itself fitful, passionate, and unjust.
This conduct is more remarkable, when it is considered,
that, only a short time before, France, while yet
a kingdom, contributed treasure and blood to sustain
our national independence. And yet an explanation
may be found in the extraordinary temper of the times.
By a generous uprising of the people the kingdom was
overthrown, and then, as the alarmed royalties of Europe
intervened, the head of the monarch was flung to
them as a gage of battle. The gage had been accepted
in advance, and all those royalties, by successive treaties,
entered into coalition against France. The fleets of
England came tardily into the great contest, but their
presence gave to it a new character, and enveloped
ocean as well as land in its flames. The growing commerce
of the United States suffered from both sides,
but especially from France, driven to frenzy by the
British attempt, in the exercise of belligerent rights,
to starve a whole nation.
French feelings were still further aroused against the
United States, when, instead of friendship and alliance,
France was encountered by the Proclamation of Neutrality
launched by Washington on the 22d April, 1793,
where he undertook, in behalf of the United States, to
“adopt and pursue a conduct friendly and impartial
toward the belligerent powers.”[115] Here, according to
France, was a failure not only of that proper sympathy
due from us, but even of solemn duties pledged by those
early treaties which helped to secure the national independence.
This failure, which became afterward the
occasion of counter claims, contributed to the exasperations
of the time.
An early apology, addressed to the American minister
at Paris by the French Government, attests the spoliations
which had begun, and discloses also their indefensible
character, unless the common language spoken
by the English and ourselves was a sufficient excuse.
Here are the exact words:—
“We hope that the Government of the United States will
attribute to their true cause the abuses of which you complain,
as well as other violations of which our cruisers may
render themselves guilty in the course of the present war.
It must perceive how difficult it is to contain within just limits
the indignation of our marines, and, in general, of all the
French patriots, against a people who speak the same language
and having the same habits as the free Americans. The difficulty
of distinguishing our allies from our enemies has often
been the cause of offences committed on board your vessels;
all that the Administration could do is to order indemnification
to those who have suffered, and to punish the guilty.”[116]
Thus recklessly did these spoliations begin. The
National Convention associated itself with this injustice,
when, on the 9th May, 1793, only seventeen days after
the Proclamation of Neutrality, but before it had arrived
in France, a retaliatory decree was issued in response to
the British attempt at starvation,—arresting all neutral
vessels laden with provisions and destined to an enemy
port. The decree itself did not disguise that it was a
violation of neutral rights; but the necessity of the hour
was pleaded, and indemnity was promised to neutrals
suffering by its operation.[117] Unwilling to await the dilatory
performance of this promise, our minister at Paris
remonstrated against the application of the decree to
vessels of the United States. Amidst vacillations of
the National Convention, which, under the urgency of
our minister, at one time seemed to relent, the decree
continued to be enforced against property of American
citizens. Here were spoliations, confessed at the time
to be in violation of neutral rights, which still rise in
judgment.
As this intelligence reached the United States, our
whole commerce was fluttered. Merchants hesitated to
expose ships and cargoes to such cruel hazards. It was
necessary that something should be done to enlist again
their activity. The National Government came forward
voluntarily, with assurance of protection and redress,
in a circular letter, dated 27th August, 1793,
when Mr. Jefferson, the Secretary of State, in the name
of the President, used the following language: “I have
it in charge from the President to assure the merchants
of the United States concerned in foreign commerce or
navigation, that due attention will be paid to any injuries
they may suffer on the high seas or in foreign
countries, contrary to the Law of Nations or to existing
treaties, and that, on their forwarding hither well-authenticated
evidence of the same, proper proceedings
will be adopted for their relief.”[118] This circular was
confirmed by President Washington, in his message of
December 5, 1793, where he speaks as follows: “The
vexations and spoliation understood to have been committed
on our vessels and commerce by the cruisers
and officers of some of the belligerent powers appeared
to require attention. The proofs of these, however, not
having been brought forward, the description of citizens
supposed to have suffered were notified, that, on furnishing
them to the Executive, due measures would be taken
to obtain redress of the past and more effectual provisions
against the future.”[119] Here, then, was a double
promise from the National Government, and under its
encouragement our merchants resumed their commerce,
venturing once more upon the ocean. Their Government
had tempted them, and, on the occurrence of
“injuries on the high seas,” these good citizens, according
to instructions, made haste to lodge with the Department
of State the “well-authenticated evidence of
the same.” Their children and grandchildren are waiting,
even now, the promised redress.
Thus, at the very beginning, these spoliations were
recognized by both Governments in their true character.
The National Convention, even in its arbitrary edict, confessed
them. The Administration of Washington, in
its solemn assurance of protection, also confessed them.
Offspring of wrongful violence in the heat of war, they
were regarded on both sides as indefensible. Ministers,
in this respect, reflected the sentiments of the two Governments.
Fauchet, the French minister at Philadelphia,
in a communication to the Secretary of State, under
date of March 27, 1794, expressed himself in this
manner: “If any of your merchants have suffered any
injury by the conduct of our privateers, (a thing which
would be contrary to the intention and express orders
of the Republic,) they may with confidence address
themselves to the French Government, which will never
refuse justice to those whose claims shall be legal.”[120]
Mr. Morris, our minister at Paris, under date of March
6, 1794, gave vent to his feelings: “These captures
create great confusion, must produce much damage to
mercantile men, and are a source of endless and well-founded
complaint. Every post brings me piles of letters
about it from all quarters, and I see no remedy.…
In the mean time, if I would give way to the clamors
of the injured parties, I ought to make demands very
like a declaration of war.”[121] But M. Buchot, the French
Commissioner of Foreign Relations, addressed Mr. Morris
the following soothing words, under date of July 5,
1794: “The sentiments of the Convention and of the
Government towards your fellow-citizens are too well
known to you to leave a doubt of their dispositions to
make good the losses which the circumstances inseparable
from a great revolution may have caused some American
navigators to experience.”[122] Such was the testimony, at
that day, of ministers on both sides.
Meanwhile, Genet, the French minister, was recalled,
at the instance of President Washington, on account
of presumptuous interference in our affairs, especially
hostile to the Proclamation of Neutrality; and John
Jay reached London to negotiate the treaty of 1794
which goes under his name. The latter event added
to the exasperation of France. But Mr. Monroe, who
took the place of Mr. Morris at Paris, was full of
sympathy for the new republic, even when he frankly
discharged his unpleasant duties. In a communication
to the Committee of Public Safety, under date of October
18, 1794, he exposed “a frightful picture of difficulties
and losses, equally injurious to both countries,
and which, if suffered to continue, will unavoidably
interrupt for the time the commercial intercourse between
them.”[123] Notwithstanding this strong language,
his influence was thought to have prevailed so far
that President Washington ventured to announce, in a
confidential message of February 28, 1795, good news
for our plundered merchants. “It affords me,” he said,
“the highest pleasure to inform Congress that perfect
harmony reigns between the two republics, and that
those claims are in a train of being discussed with candor,
and of being amicably adjusted.”[124] This perfect
harmony was short-lived, and the hopes flowering from
it were nipped.
The rumor of Mr. Jay’s negotiations with England
had already produced uneasiness in France; but when
the treaty, on its ratification, in October, 1795, was
finally divulged, there was an outburst against us. The
treaty was pronounced to be in violation of existing
engagements with France, and our whole policy was
openly branded by the President of the Directory, in
reply to Mr. Monroe, as a “condescension of the American
Government to the wishes of its ancient tyrants.”[125]
The Directory refused to receive Charles Cotesworth
Pinckney, sent by our Government in place of James
Monroe. Meanwhile, by a succession of cruel edicts, it
unleashed all its cruisers to despoil our commerce, and
cry havoc wherever they sailed. On the 2d July, 1796,
it was declared that “the French Republic will treat neutral
vessels, either as to confiscation, as to searches, or
capture, in the same manner as they shall suffer the English
to treat them.”[126] The indefinite terms of this edict
were justly denounced by our Government, as “giving
scope for arbitrary constructions, and consequently for
unlimited oppression and vexation.”[127] These results were
soon manifest. With contagious injustice, the French
commissioners at San Domingo reported to the Government
at home, “that, having found no resource in
finance, and knowing the unfriendly disposition of the
Americans, and to avoid perishing in distress, they had
armed for cruising, and that already eighty-seven cruisers
were at sea, and that for three months preceding the
Administration had subsisted and individuals been enriched
with the products of those prizes.”[128] So extensively
did this brutality prevail, that it was announced
that American vessels “no longer entered the French
ports, unless carried in by force.”[129]
This spirit of hostility broke forth in another edict of
the Directory, which became at once a universal scourge
to American commerce. This fulmination, bearing date
March 2, 1797, after enlarging the list of contraband,
and ordaining other measures of rigor, proceeds to declare
all American vessels lawful prize, if found without
a rôle d’équipage, or circumstantial list of the crew:[130]
all of which was in violation of existing treaties, and
also of American usage, which notoriously did not require,
among a ship’s papers, any such list. No edict
was so comprehensive in its sweep; for, as all our vessels
were without this safeguard, they were all defenceless.
Numberless spoliations ensued, so absolutely lawless and
unjust that John Marshall did not hesitate to record of
them in his journal, under date of December 17, 1797,
“The claims of the American citizens for property captured
and condemned for want of a rôle d’équipage”
constituted “as complete a right as any individuals ever
possessed.”[131] This right, thus complete, according to the
judgment of our great authority, enters into a large
part of the claims still pending before Congress.
As if to perfect this strange, eventful history, a third
edict, at once inhospitable and unjust, was launched
by the Directory, January 18, 1798, prohibiting “every
foreign vessel which in the course of her voyage shall
have entered into an English port from being admitted
into a port of the French Republic, except in case of
necessity,” and, still further, handing over to condemnation
“every vessel found at sea loaded in whole or
in part with merchandise the production of England
or of her possessions.”[132] This edict was promptly denounced
by the American plenipotentiaries newly arrived
at Paris. In earnest, vigorous tones, they said that
it invaded at the same time the interests and the independence
of neutral powers,—that it took from them the
profits of an honest and lawful industry, as well as the
inestimable privilege of conducting their own affairs as
their own judgment might direct,—and that acquiescence
in it would establish a precedent for national degradation,
authorizing any measures power might be disposed
to practise.[133] Our plenipotentiaries depicted the
spirit in which French spoliations had their origin, and
the humiliating consequences of submission to the outrage;
but the personal sufferers are, down to this day,
without redress.
Perplexed and indignant, the United States constituted
a special mission of three eminent citizens, Mr.
Pinckney, Mr. Marshall, and Mr. Gerry, who were
charged to secure indemnity for these spoliations. In
his elaborate instructions, dated July 15, 1797, the Secretary
of State, Mr. Pickering, lays down the following
rule of conduct: “In respect to the depredations on our
commerce, the principal objects will be to agree on an
equitable mode of examining and deciding the claims
of our citizens, and the manner and periods of making
them compensation.… The proposed mode of
adjusting those claims, by commissioners appointed on
each side, is so perfectly fair, we cannot imagine that
it will be refused.” Although this reparation was not
made “an indispensable condition of the proposed
treaty,” yet the plenipotentiaries were enjoined “not
to renounce these claims of our citizens, nor to stipulate
that they be assumed by the United States as a loan
to the French Government.”[134] Thus fully were these
claims recognized at the time by our Government, and
most carefully placed under the protection of our plenipotentiary
triumvirate.
The triumvirate found the French Republic in no
mood of justice. Bonaparte was then triumphant at
the head of the army of Italy, and Talleyrand was
exhibiting his remarkable powers at the head of the
foreign relations of France. Victory had given confidence,
and the exulting Republic was standing tiptoe,
more disposed to strike than negotiate, unless it
could dictate, and implacable always towards England
and all supposed to sympathize with that power. After
exactions and humiliations hard to bear, the plenipotentiaries
were compelled to return home without any official
reception by the intoxicated Government to which
they were accredited, but not before they had encountered
the masterly ability of Talleyrand, who, in reply
to their statement of the claims of the United States,
presented the counter claims of France. Though in
Paris merely on sufferance, they had unofficial interviews
with various agents of the Republic, and even
with Talleyrand himself; but without dwelling on details
not pertinent to the occasion, it is enough to say,
that, while refusing to offer a loan or bribe, they were
able to declare frankly “that France had taken violently
from America more than fifteen millions of dollars, and
treated us in every respect as enemies”;[135] and also to
receive from Talleyrand a concession, recorded in one of
their despatches, that “some of those claims were probably
just,” with the inquiry, “whether, if they were
acknowledged by France, we could not give a credit as
to the payment,—say, for two years?”[136] Here again
was an admission not to be forgotten.
The return of our disappointed plenipotentiaries was
aggravated by circumstances which an eminent Continental
writer has not hesitated to brand as “unique in
the annals of diplomacy.”[137] They had been invited to
contribute a gratification of twelve hundred thousand
francs, and the whole desperate intrigue, conducted by
persons known in the correspondence as W, X, Y, Z, was
unveiled to the world. The country was indignant, and
war seemed imminent. By various acts of legislation
Congress entered upon preparations, summoning Washington
from retirement to gird on his sword once more
as Lieutenant-General. The claims for French spoliations
were never absent from mind. By Act of the 28th May,
1798, public vessels of the United States were authorized
to capture all “armed vessels sailing under authority
or pretence of authority from the Republic of
France,” “which shall have committed, or which shall be
found hovering on the coasts of the United States for
the purpose of committing, depredations on the vessels
belonging to citizens thereof”; and this statute was introduced
by a preamble asserting “depredations on the
commerce of the United States, … in violation of the
Law of Nations and treaties between the United States
and the French nation.” By Act of June 13, 1798, all
commercial intercourse was suspended between the United
States and France, until “the Government of France … shall
clearly disavow, and shall be found to refrain
from, the aggressions, depredations, and hostilities which
have been and are by them encouraged and maintained
against the vessels and other property of the citizens of
the United States.” By Act of June 25, 1798, merchant
vessels of the United States were authorized to resist
search or seizure by any French armed vessel, to repel
assaults, and to capture the aggressors, until “the Government
of France … shall disavow, and shall cause
the commanders and crews of all armed French vessels
to refrain from, the lawless depredations and outrages
hitherto encouraged and authorized by that Government
against the merchant vessels of the United States.” By
Act of July 7, 1798, the treaties with France were declared
to be no longer obligatory on the United States;
and this statute was introduced by a preamble asserting
that “the just claims of the United States for reparation
of injuries have been refused, and their attempts
to negotiate an amicable adjustment of all complaints
between the two nations have been repelled with indignity.”
Thus, by express words, in repeated acts,
did Congress recognize these claims.
By such vigorous measures were the rights of these
claimants asserted, while the country assumed an attitude
of defence. The French Directory became less
intolerable, and negotiations were invited again, with
assurance that the former rudeness should not be renewed.
John Adams was President, and for the sake
of peace he seized the opportunity of this overture, by
appointing Chief Justice Ellsworth, Patrick Henry, and
William Vans Murray as a second plenipotentiary triumvirate
to France. As Mr. Henry declined, Mr. Davie,
of North Carolina, was substituted in his place. In adjusting
the instructions President Adams himself took
a personal part, as appears by a letter to the Secretary
of State, where he says: “The principal points, indeed
all the points, of the negotiation were so minutely
considered and approved by me and all the heads of department
that nothing remains but to put them into
form and dress: this service I pray you to perform
as promptly as possible.”[138] But “all the points” were
three only: 1st, Indemnity for spoliations of American
commerce; 2d, The unquestionable wrong of seizing
American vessels for want of the paper known to
French law as rôle d’équipage; 3d, The refusal to renew
the treaty guaranty of the French West Indies.
Such were the ultimata originally settled by the President
and his cabinet on the 11th of March, 1799, and
afterwards fully developed in the elaborate instructions
of Mr. Pickering, dated 22d October, 1799, which, after
announcing that “the conduct of the French Republic
would well have justified an immediate declaration of
war on the part of the United States,” proceeded to
declare, as the first point, that the plenipotentiaries,
“at the opening of the negotiation, will inform the
French ministers that the United States expect from
France, as an indispensable condition of the treaty, a
stipulation to make to the citizens of the United States
full compensation for all losses and damages which they
shall have sustained by reason of irregular or illegal
captures or condemnations of their vessels and other
property.” And the instructions end, as they began,
by declaring, first among the terms, “that an article
be inserted for establishing a board with suitable powers
to hear and determine the claims of our citizens,
and binding France to pay or secure payment of the sums
which shall be awarded.”[139] Observe the positiveness of
the assertion.
These instructions attest the interest of our Government.
Placed first among the ultimata adopted in the
councils of President Adams, these indemnities were
placed first in the diplomatic instructions. There is
yet other evidence of the character and amount of the
spoliations. The Secretary of State, in a report to Congress,
dated January 18, 1799, after attributing them
to French feeling on account of the British treaty, proceeds
to characterize them in remarkable words: “Yet
that treaty had been made by the French Government
its chief pretence for those unjust and cruel depredations
on American commerce which have brought distress on
multitudes and ruin on many of our citizens, and occasioned
a total loss of property to the United States of probably
more than twenty millions of dollars.”[140] Such were
the outrages for which our plenipotentiaries were to seek
redress.
The Directory had ceased; but on reaching Paris the
plenipotentiaries were cordially received by Talleyrand,
the citizen minister of Foreign Affairs, who without
delay presented them to the First Consul as he was
about to mount for that wonderful campaign which,
opening with the passage of the Alps, closed at Marengo.
Negotiations commenced at once, Joseph Bonaparte,
elder brother of the First Consul, and afterward
King of Spain, being at the head of the commission on
the part of France. “Appreciating,” as they announced,
“the value of time,” the American plenipotentiaries, in a
brief note, on the 7th of April,—the very day when the
exchange of powers was completed,—proposed “an arrangement
to ascertain and discharge the equitable claims
of the citizens of either nation upon the other, whether
founded on contract, treaty, or the Law of Nations”;
all of which was to be done in order “to satisfy the
demands of justice, and render a reconciliation cordial
and permanent.”[141] Thus instantly were these claims presented.
The French plenipotentiaries in their prompt
reply admitted that “the first object of the negotiation
ought to be the determination of the regulations, and
the steps to be followed, for the estimation and indemnification
of injuries for which either nation may make
claim for itself or for any of its citizens.”[142] Here was
the suggestion of claims, not only “individual,” but also
“national,” under which loomed the counter claims of
France.
The American plenipotentiaries, while professing to
be free from “apprehension of an unfavorable balance,”
protested against the consideration of any “national”
claims until some “convenient stage of the negotiation,
after it shall be seen what arrangement would be acceptable
for the claims of citizens.”[143] The French plenipotentiaries
rejoined by enforcing “national” as well
as “individual” claims.[144] The issue seemed to be made.
On the one side were the “individual” claims of American
citizens, on the other side the “national” claims of
France. The American plenipotentiaries were not authorized
to recognize the “national” claims alone. The
French plenipotentiaries were not authorized to recognize
the “individual” claims, without a previous recognition
on our part of the “national” claims. At last, after various
efforts at harmony, it was officially announced that
“the negotiation was at a stand on the part of France,”
as her plenipotentiaries were constrained by instructions
of the First Consul to make “the acknowledgment of
former treaties the basis of negotiation and the condition
of compensation.”[145] The First Consul was then on the
Italian slope of the Alps, about to pounce upon the astonished
Austrians. Claims and counter claims were of
little concern to him.
Thus far the Committee have exhibited our claims in
their origin and history. The time has come to change
the scene, and to exhibit those counter claims which
played such part in the successive negotiations, and
finally produced that memorable dead-lock, when the
two powers stood face to face with antagonist pretensions,
unable to go forward, and unwilling to go backward.
The counter claims of France differ widely from the
claims of American citizens. They were not “individual,”
but “national,” being founded on alleged violations
of treaty stipulations assumed by the United States in
return for the aid of France in the establishment of national
independence. During the protracted controversy
between the two republics they were detailed in numerous
official notes; but they were brandished by Talleyrand,
with offensive skill and effect, in the very faces of
our insulted plenipotentiaries, under date of March 18,
1798, when, while driving them from Paris, he insisted
“that the priority of grievances and complaints belonged
to the French Republic,” and “that these complaints and
these grievances were as real as numerous, long before the
United States had the least grounded claim to make.”[146]
Careful inquiry enables us to see that this allegation, thus
confidently uttered, was not without a certain foundation;
and here we revert to the history of our country.
The triumph with which the War of Independence
happily ended came tardily, after seven years of battle,
suffering, and exhaustion; but it was hastened, if not assured,
by the generous alliance of France. From Bunker
Hill to Saratoga the war was checkered with gloom,
which even the surrender of Burgoyne did not suffice to
dispel. Then came the dreary winter of Valley Forge,
when soldiers of Washington, after treading the snows
barefoot, were obliged, for want of blankets, to huddle
all night by the fires, and even the stout heart of the
commander-in-chief bent so far as to announce, in formal
letter to Congress, that, “unless some great and
capital change suddenly takes place, the army must inevitably
be reduced to one or other of these three things,—starve,
dissolve, or disperse.”[147] But the scene changed
with the glad tidings that France, by solemn treaty,
signed by Franklin, February 6, 1778, had bound herself
to “guaranty to the United States their liberty, sovereignty,
and independence, absolute and unlimited.” The
camp broke forth with the mingled joy of soldier and
patriot, as it turned gratefully to Lafayette, already by
the side of Washington, glorious forerunner of armies
and navies promised to our cause. Congress took up
the strain, and, by unanimous vote, ratified the treaty
which opened to our country the gates of the Future.
It is difficult to estimate the value of this treaty in
money, especially when we consider its consequences.
According to the report of Calonne, the French Minister
of Finance, the war which ensued in the support of this
guaranty cost France fourteen hundred and forty millions
of francs, or about two hundred and eighty millions
of dollars. But French blood, more costly than
money, was shed on land and sea in the same cause, until
at last the army of Cornwallis surrendered at Yorktown
to the allied forces of Rochambeau and Washington,
and the war closed by the recognition of our national
independence. If liberty be priceless, if life be
priceless, then was the aid lavished by France infinite
beyond calculation.
The engagements were not all on the side of France.
Beyond gratitude due for this powerful alliance, were
express obligations solemnly assumed by the United
States, not only in the Treaty of Alliance, but also in
the Treaty of Amity and Commerce negotiated on the
same day. These obligations, constituting the consideration
of the weighty contract, were of two classes: first,
a guaranty by the United States of the possessions of
France in America; and, secondly, important privileges
for the armed ships of France, with a promise of American
convoy to French commerce.
1. The terms of the guaranty are as follows:—
“The two parties guaranty, mutually, from the present
time and forever, against all other powers, to wit: The
United States to His Most Christian Majesty, the present
possessions of the crown of France in America, as well as those
which it may acquire by the future treaty of peace; and
His Most Christian Majesty guaranties, on his part, to the
United States, their liberty, sovereignty, and independence, absolute
and unlimited, as well in matters of government as
commerce, and also their possessions, and the additions or
conquests that their Confederation may obtain during the
war from any of the dominions now or heretofore possessed
by Great Britain in North America.”[148]
To fix more precisely the sense of this article, it was
further stipulated, that,—
“In case of a rupture between France and England, the
reciprocal guaranty shall have its full force and effect the
moment such war shall break out; and if such rupture shall
not take place, the mutual obligations of the said guaranty
shall not commence until the moment of the cessation of the
present war between the United States and England shall
have ascertained their possessions.”[149]
The possessions of France in America at this date
were the islands of San Domingo, Martinique, Guadeloupe,
St. Lucia, St. Bartholomew, Deseada, Mariegalante,
St. Pierre, Miquelon, and, on the main-land, Cayenne,—each
and all of which the United States guarantied
to France forever, being a continuing guaranty,
so far as this term of law is applicable to an international
transaction, which, beginning “in case of a rupture
between France and England,” was operative after “the
cessation of the present war between the United States
and England,” and was to continue “forever.”
The terms of the “guaranty” are general, and it was
“forever.” Even if limited to defensive war, it would be
difficult to say that France was not engaged in such a
war, with the added incident that it was a war by a
combination of kings to overcome a republic. France
was alone, with the royalties of Europe embattled
against her. Only after the execution of the King England
joined this array, lending to it invincible navies.
But, according to official avowals, it was what King
George called “the atrocious act recently perpetrated at
Paris”[150] that finally prompted the part she undertook,
and her real object, in the language of Mr. Fox, was no
other than “the destruction of the internal Government
of France.”[151] The case was unprecedented; but it is difficult
to say that it did not come under the “guaranty.”
The casus fœderis had occurred. If France did not exact
performance, that is no reason why our obligations
should be disowned, when, at the present moment, we
are trying to arrive at some appreciation of their extent.
A careful examination of the treaty shows that the
“guaranty” became primarily obligatory on the occurrence
of a rupture between France and England. Nothing
is said or suggested as to the character of the war,
whether offensive or defensive. It is enough that there
was “a rupture.” In such a case, the “guaranty,” according
to the illustration of Cicero, was, tanquam gladius
in vagina, at the disposal of France. Our Secretary
of State, even while seeking to limit its application,
seems to have seen it prospectively in this light, when,
in his instructions of July 15, 1797, to our plenipotentiaries,
Messrs. Pinckney, Marshall, and Gerry, he said,
“Our guaranty of the possessions of France in America
will perpetually expose us to the risk and expense of
war, or to disputes and questions concerning our national
faith.”[152]
2. The Treaty of Amity and Commerce contained a
succession of mutual stipulations, by which the United
States undertook,—first, to protect and defend by their
ships of war, or convoy, any or all vessels belonging to
French subjects, so long as they hold the same course,
“against all attacks, force, and violence, in the same
manner as they ought to protect and defend” the vessels
of citizens of the United States;[153] secondly, to open
their ports to French ships of war and privateers with
their prizes, and to close them against those of any
power at war with France, except when driven by stress
of weather, and then “all proper means shall be vigorously
used that they go out and retire from thence
as soon as possible”;[154] thirdly, according to French
construction, to allow French privateers “to fit their
ships, to sell what they have taken, or in any other
manner whatsoever to exchange their ships, merchandise,
or any other lading,” while privateers in enmity
with France are forbidden even to victual in ports of
the United States.[155] As if to round and complete these
engagements, it was further stipulated on the part of
the United States, in a Consular Convention, which,
after many perplexities of diplomacy baffling the tried
skill of Franklin, was finally signed by Mr. Jefferson, in
1788, as a postscript to the earlier treaties, that French
consuls and vice-consuls in the United States should
have power and jurisdiction on board French vessels in
civil matters, with the entire inspection over such vessels,
their crews, and the changes and substitutions there
to be made.[156]
Such, briefly recited, were the solemn engagements of
the United States, sanctioned by treaties, as the price
of independence. So long as France remained at peace
with all the world, especially with Great Britain, these
engagements slept unnoticed, but ready, at the first blast
of war, to spring into life. At length the blast was heard,
perhaps as never before in human history, echoing from
capital to capital, and sounding a crusade of monarchical
Europe against republican France. Of all the foreign
ministers at Paris, the minister of the United States
alone remained: the rest had fled.
The minister of the United States saw the danger
lowering upon his own country. In a letter to the
Secretary of State, dated December 21, 1792, after presenting
a rapid sketch of the rising of Europe against
France, he adds: “The circumstance of a war with
Britain becomes important to us in more cases than
one”; and he then alludes to “the question respecting
the guaranty of American possessions, especially if
France should attempt to defend her islands.”[157] Notoriously,
Gouverneur Morris sympathized little with the
French Republic, but, against all arguments for non-compliance
with our original engagements, because the
Government with which they were made had ceased to
exist, his sensitive nature broke forth in the “wish that
all our treaties, however onerous, may be strictly fulfilled
according to their true intent and meaning,” which
he followed in language foreign to the phrases of diplomacy,
by picturing “the honest nation as that which,
like the honest man,
‘Hath to its plighted faith and vow forever firmly stood;
And though it promised to its loss, yet makes that promise good.’”
[158]
In harmony with this exclamation of the plenipotentiary
are the words of Vattel, an authority much quoted at
the time: “To refuse an ally the succors we owe him,
without any good ground of dispensation, is doing him
an injury, … and there being a natural obligation to
repair the damage caused by our fault, and especially
by our injustice, we are bound to indemnify an ally
for all the losses he may have sustained from our unjust
refusal.”[159]
Since the signature of the treaties times had changed,
and men had changed with them. There was no bad
faith on either side, in the ordinary sense of the term,
but intervening events and exigencies of self-defence
had driven each into unexpected inconsistencies of conduct.
If on one side there was neglect of original engagements,
there was on the other equal neglect of
international duties. The tornado in mad career uprooted
old landmarks, and each was striving to find
new lines of reciprocal relations. Franklin, signing
the “guaranty,” did not expect so soon to call down
upon his country the lightnings of an embattled world;
nor did France, while formally conceding neutral rights
on the ocean and assuring our national independence,
expect so soon to become the plunderer of our commerce.
But the great tragedy would have been less
complete, if its domineering Nemesis had suffered the
two republics to dwell in harmony together. They were
whirled, on each side, into those questionable acts out of
which have sprung the claims and counter-claims now
under consideration.
A new French minister was at hand, accredited to
President Washington, with fresh instructions. Differences
on the obligations of the guaranty appeared in the
Cabinet,—some holding that no necessity for decision
existed, as France had made no demand,—and others,
that, the Treaty of Alliance being plainly defensive, the
guaranty did not apply to a war begun by France. After
ample discussion, the Proclamation of Neutrality was
adopted, April 22, 1793, destined to become a turning-point
in our history. Chief Justice Marshall, whose opportunities
of information were unquestionable, lets us
know that the Proclamation “was intended to prevent
the French minister from demanding the performance of
the guaranty contained in the Treaty of Alliance.”[160] But
before the Proclamation reached France, orders were issued
there for the capture and confiscation of enemy goods
on board neutral vessels; whereas it was stipulated with
the United States that free ships should make free goods;
so that, even if the denial of the guaranty was wrong,
and the Proclamation, according to French accusation,
“insidious,” the United States were not the first to offend.
On the day of the Proclamation came news by the
journals that Genet, the new French minister, had landed
in South Carolina, where, amid the darkest days of the
Revolution, Lafayette had also first landed. Full of conviction
that France had only to make herself heard in order
to be sustained, Genet exalted himself conspicuously
above the Government. By instructions from the Executive
Council of the French Republic, dated 17th of
January, 1793, he was enjoined “to penetrate profoundly
the sense of the treaties of 1778, and to watch over the
articles favorable to the commerce and navigation of the
United States, and to make the Americans consider engagements
which might appear onerous as the just price
of the independence which the French nation had secured
to them.” Not content with existing safeguards, the new
minister was to negotiate a supplementary treaty, to fix
more surely “the reciprocal guaranty of the possessions
of the two powers.”[161] In this spirit he commenced a
turbulent career, charging offensively that the President,
before knowing what the minister had to communicate
from the French Republic, was in a hurry “to proclaim
sentiments on which decency and friendship should at
least have drawn a veil,”—that he “took on himself to
give to our treaties arbitrary interpretations absolutely
contrary to their true sense,” and that “he left no other
indemnification to France for the blood she spilt, for the
treasure she dissipated, in fighting for the independence
of the United States, but the illusory advantage of bringing
into their ports the prizes made on their enemies
without being able to sell them,”—and that the Secretary
of War, on his communication of the wish of the
Windward Islands “to receive promptly some fire-arms
and some cannon, which might put into a state of defence
possessions guarantied by the United States, had the front
to answer, with an ironical carelessness, that the principles
established by the President did not permit him
to lend so much as a pistol.”[162] In another letter, the
French minister, under date of June 8, 1793, requires
that “the Federal Government should observe the public
engagements contracted, and give to the world the
example of a true neutrality, which does not consist in
the cowardly abandonment of friends at the moment
when danger menaces.”[163] And in still another letter,
dated June 22, 1793, he declares that “it is in the
conventional compacts, collectively, that we ought to
seek contracts of alliance and of commerce simultaneously
made, if we wish to take their sense and
interpret faithfully the intentions of the people who
cemented them, and of the men of genius who dictated
them.”[164] All of which was followed by another
letter, dated November 14, 1793, in which the minister
says categorically: “I beg you to lay before the President
of the United States, as soon as possible, the decree
and the inclosed note, and to obtain from him the
earliest decision, either as to the guaranty I have claimed
the fulfilment of for our colonies, or upon the mode of
negotiation of the new treaty I was charged to propose
to the United States, and which would make of the two
nations but one family.”[165] At last Genet was recalled,
but the question of our engagements with France could
not be dismissed. It was more menacing than any
minister. Without it all the turbulence of Genet
would have been as the idle wind.
And yet, for a while, each party seems to have practised
a certain reserve. Genet stormed, but the Government
at home was tranquil. The “guaranty” was
suspended, even in discussion. France forbore to press
it, and the United States were happy to avoid the over-shadowing
question. The Secretary of State, in instructions
to Mr. Monroe, dated June 10, 1794, while
“insisting upon compensation for the captures and spoliations
of our property and injuries to the persons of
our citizens by French cruisers,” was careful to add:
“If the execution of the guaranty of the French islands
by force of arms should be propounded, you will refer
the Republic of France to this side of the water.”[166] Mr.
Monroe, in his correspondence, under date of September
15, 1794, says: “This Republic had declined calling on
us to execute the guaranty, from a spirit of magnanimity,
and strong attachment to our welfare”; but he reveals
his anxiety lest an attempt to press our case “might give
birth to sentiments of a different kind, and create a disposition
to call on us to execute that of the Treaty of Alliance.”[167]
In another letter, dated November 7, 1794,
describing an interview with the very able Diplomatic
Committee, our plenipotentiary confesses the embarrassment
he encountered, when M. Merlin three times
asked, “Do you insist upon our executing the treaty?”
and he gives his reply, that he “was not instructed by
the President to insist on it, nor did he insist on it”;
and he avows that in his opinion such insistence would
have been impolitic, as “exciting a disposition to press
us on other points, upon which it were better to avoid any
discussion.”[168] There is other testimony of this nature,
unnecessary to produce. Suffice it to say, that for some
time there was a lull, soon to be followed by a storm.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
The Committee have now finished the review which,
in the discharge of public service, they were called to
make. Approaching a much vexed question without
prejudice, they have striven to consider it with candor,
in the hope of ascertaining and exhibiting the requirements
of duty. The conclusion they have adopted, in
harmony with so many previous committees of both
houses, and also with Congress itself, which has twice
enacted a law for the satisfaction of these claims, is now
submitted to the judgment of the Senate.
How the Committee have reached this conclusion
is seen by a final glance at the field that has been
traversed. Putting aside the three preliminary objections
to these claims,—(1.) that they are ancient and
stale, (2.) that they have passed into the hands of speculators,
and (3.) that they should be postponed on account
of the present condition of public affairs,—the
Committee have considered in order four principal topics:
First, the claims of American citizens on France,
as they appear in the history of the times; secondly,
the counter-claims of France, as they, too, appear in the
history of the times; thirdly, how the “individual”
claims of American citizens were sacrificed to procure
release of the “national” claims of France by a proceeding
in the nature of set-off and mutual release;
and, fourthly, how the United States, for a valuable
consideration, assumed the obligations of France, so as
to become completely responsible therefor. Not content
with showing affirmatively the merits of the claimants,
the Committee next examined all known objections to
the asserted responsibility of the United States, establishing
negatively: (1.) that the relations between
France and the United States were at no time such as
to constitute a state of war, invalidating the claims;
(2.) that they were not embraced in the Convention
for the purchase of Louisiana; (3.) that they were not
embraced in the later Convention of 1831; (4.) that the
alleged annulling of the French treaties by Act of Congress
did not affect them; (5.) that the early efforts of
our Government with France, for their satisfaction, furnish
no ground of exemption from present liability;
and (6.) that the claims, at the time of their abandonment,
were not desperate, so as to be without value.
With the removal of all known objections, the way
was open to consider the extent of “just compensation”
under three different heads: (1.) the advantages secured
to the United States by the sacrifice of these claimants;
(2.) the actual losses of these claimants; and (3.) the
final recommendations of the Committee.
Such is the whole case in its divisions and subdivisions.
There is one reflection which belongs naturally
to the close. These claims have survived several generations,
entwining themselves each year with the national
history. Meanwhile the Republic, for whose advantage
they were sacrificed, has outgrown the puny
condition of that early day, when its commerce was
the prey of France, and even the sacred debt for independence
was left unpaid. These claimants have been
called to remark the glorious transformation by which
the weak has become strong and the poor has become
rich; with glistening eye they have followed the flag
of the country, as it was carried successfully in every
sea; with sympathetic heart they have heard the name
of the country sounded with honor in every land; and
now they joyfully witness the unexampled resources
with which it upholds the national cause against an
unexampled rebellion;—but these claimants have been
called to observe, especially, how, for many years, unchecked
by hindrances, the National Government labored
successfully with foreign powers to secure justice
for despoiled citizens, until all nations—Great Britain,
Spain, Denmark, Naples, Holland, Mexico, Colombia,
Peru, and Chile—have yielded to persistent negotiation,
and even France has paid indemnities to our citizens
for spoliations subsequent to these very claims.
All this history these claimants have observed with
pride; but how can they forbear to exclaim at the sacrifice
required of them,—that they alone, the pioneers
of our commercial flag, are compelled “in suing long to
bide,” while part of the debt for national independence
is cast upon their shoulders, and the whole country
enjoys priceless benefits at their expense? Well may
these disappointed suitors, hurt by unfeeling indifference
to their extensive losses, and worn with endless
delay, cry out in bitterness of heart, “Give us back our
ships!” But this cannot be done. It only remains that
Congress should pay for them.
LIST OF REPORTS OF COMMITTEES.
| Number. | Where reported. | By whom reported. | Committee. | Date. | Bills and reports. | Detailed reports. |
| 1 | House | Mr. Giles[265] | Select | April 22, 1802 | … | R. |
| 2 | House | Mr. Marion | Select | Feb. 18, 1807 | Favorable | R. |
| 3 | Senate | Mr. Roberts | Claims | Mar. 3, 1818 | Adverse | R. 124 |
| 4 | House | Mr. Russell | Foreign Affairs | Jan. 31, 1822 | Adverse | R. 32 |
| 5 | House | Mr. Forsyth | Foreign Affairs | Mar. 25, 1824 | Adverse | R. 94 |
| 6 | Senate | Mr. Holmes | Select | Feb. 8, 1827 | Favorable | R. 48 |
| 7 | House | Mr. E. Everett | Foreign Affairs | May 21, 1828 | Favorable | R. 264 |
| 8 | Senate | Mr. Chambers | Select | May 24, 1828 | Favorable | R. 206 |
| 9 | Senate | Mr. Chambers | Select | Feb. 11, 1829 | Favorable, bill | R. 76 |
| 10 | House | Mr. E. Everett | Foreign Affairs | Feb. 16, 1829 | Favorable | R. 82 |
| 11 | Senate | Mr. E. Livingston | Select | Feb. 22, 1830 | Favorable, bill | R. 68 |
| 12 | Senate | Mr. E. Livingston | Select | Dec. 21, 1830 | Favorable, bill | R. 32 |
| 13 | Senate | Mr. Wilkins | Select | Jan. 26, 1832 | Favorable, bill |
| 14 | Senate | Mr. Chambers | Select | Dec. 20, 1832 | Favorable, bill |
| 15 | Senate | Mr. Webster[266] | Select | Dec. 10, 1834 | Favorable, bill |
| 16 | House{ | Mr. E. Everett
Mr. Cambreleng | }Foreign Affairs | Feb. 21, 1835{ | Favorable
Adverse | }R. 121 |
| 17 | House | Mr. Howard | Foreign Affairs | Jan. 20, 1838 | Favorable, bill | R. 445 |
| 18 | House | Mr. Cushing | Individual | Mar. 31, 1838 | Favorable |
| 19 | House{ | Mr. Cushing
Mr. Pickens | }Foreign Affairs | April 4, 1840{ | Favorable, bill
Minority Adv’s | }R. 343 |
| 20 | House | Mr. Cushing | Foreign Affairs | Dec. 29, 1841 | Favorable, bill | R. 16 |
| 21 | Senate | Mr. Choate | Foreign Relat’s | Jan. 28, 1842 | Favorable, bill |
| 22 | Senate | Mr. Archer | Foreign Relat’s | Jan. 5, 1843 | Favorable, bill |
| 23 | House | Mr. C. J. Ingersoll | Foreign Affairs | April 17, 1844 | Favorable, bill |
| 24 | Senate | Mr. Choate | Foreign Relat’s | May 29, 1844 | Favorable, bill |
| 25 | Senate | Mr. Choate | Foreign Relat’s | Dec. 23, 1844 | Favorable, bill |
| 26 | Senate | Mr. J. M. Clayton[267] | Select | Feb. 2, 1846 | Favorable, bill |
| 27 | House | Mr. Tru. Smith[268] | Foreign Affairs | July 13, 1846 | Favorable, bill |
| 28 | Senate | Mr. Morehead | Select | Feb. 10, 1847 | Favorable, bill | R. 144 |
| 29 | House | Mr. Tru. Smith | Foreign Affairs | Jan. 4, 1848 | Favorable, bill |
| 30 | Senate{ | Mr. Tru. Smith[269]
Mr. Hunter | }Select | Feb. 5, 1850{ | Favorable, bill
Minority Adv’s | }R. 44 |
| 31 | House | Mr. Buel | Foreign | June 14, 1850 | Favorable, bill | R. 355 |
| 32 | Senate{ | Mr. Bradbury
Mr. Felch | }Select | Jan. 14, 1852{ | Favorable, bill
Minority Adv’s | }R. 26 |
| 33 | Senate | Mr. Hamlin[270] | Select | Jan. 17, 1854 | Favorable, bill |
| 34 | House | Mr. Bayly[271] | Foreign Affairs | Jan. 4, 1854 | Favorable, bill |
| 35 | House | Mr. Pennington | Foreign Affairs | Mar. 3, 1857 | Favorable, bill |
| 36 | Senate | Mr. Crittenden[272] | Select | Feb. 4, 1858 | Favorable, bill | R. 53 |
| 37 | House | Mr. Clingman | Foreign Affairs | May 5, 1858 | Favorable, bill |
| 38 | House | Mr. Royce | Foreign Affairs | Mar. 29, 1860 | Favorable, bill | R. 259 |
| 39 | Senate | Mr. Crittenden | Select | June 11, 1860 | Favorable, bill |
| 40 | Senate | Mr. Sumner | Foreign Relat’s | Jan. 13, 1862 | Favorable, bill |
| 41 | Senate | Mr. Sumner | Foreign Relat’s | Jan. 20, 1863 | Favorable, bill |
