CHAPTER CXVIII.

FRENCH SPOLIATIONS: SPEECH OF MR. WRIGHT, OF NEW-YORK.

"Mr. Wright understood the friends of this bill to put its

merits upon the single and distinct ground that the government

of the United States had released France from the payment of

the claims for a consideration, passing directly to the benefit

of our government, and fully equal in value to the claims

themselves. Mr. W. said he should argue the several questions

presented, upon the supposition that this was the extent to

which the friends of the bill had gone, or were disposed to go,

in claiming a liability on the part of the United States to pay

the claimants; and, thus understood, he was ready to proceed to

an examination of the strength of this position.

"His first duty, then, was to examine the relations existing

between France and the United States prior to the commencement

of the disturbances out of which these claims have arisen; and

the discharge of this duty would compel a dry and uninteresting

reference to the several treaties which, at that period,

governed those relations.

"The seventeenth article of the treaty of amity and commerce of

the 6th February, 1778, was the first of these references, and

that article was in the following words:

"'_Art. 17._ It shall be lawful for the ships of war of either

party, and privateers, freely to carry whithersoever they please

the ships and goods taken from their enemies, without being

obliged to pay any duty to the officers of the admiralty or any

other judges; nor shall such prizes be arrested or seized when

they come to or enter the ports of either party; nor shall the

searchers or other officers of those places search the same,

or make examination concerning the lawfulness of such prizes;

but they may hoist sail at any time and depart and carry their

prizes to the places expressed in their commissions, which the

commanders of such ships of war shall be obliged to show; on the

contrary, no shelter or refuge shall be given in their ports

to such as shall have made prize of the subjects, people, or

property of either of the parties; but if such shall come in,

being forced by stress of weather, or the danger of the sea,

all proper means shall be vigorously used, that they go out and

retire from thence as soon as possible.'

"This article, Mr. W. said, would be found to be one of the

most material of all the stipulations between the two nations,

in an examination of the diplomatic correspondence during the

whole period of the disturbances, from the breaking out of the

war between France and England, in 1793, until the treaty of

the 30th September, 1800. The privileges claimed by France,

and the exclusions she insisted on as applicable to the other

belligerent Powers, were fruitful sources of complaint on both

sides, and constituted many material points of disagreement

between the two nations through this entire interval. What

these claims were on the part of France, and how far they were

admitted by the United States, and how far controverted, will,

Mr. W. said, be more properly considered in another part of

the argument. As connected, however, with this branch of the

relations, he thought it necessary to refer to the twenty-second

article of the same treaty, which was in the following words:

"'_Art. 22._ It shall not be lawful for any foreign privateers,

not belonging to subjects of the Most Christian King, nor

citizens of the said United States, who have commissions from

any other prince or State in enmity with either nation, to fit

their ships in the ports of either the one or the other of the

aforesaid parties, to sell what they have taken, or in any other

manner whatsoever to exchange their ships, merchandises, or any

other lading; neither shall they be allowed even to purchase

victuals, except such as shall be necessary for their going

to the next port of that prince or State from which they have

commissions.'

"Mr. W. said he now passed to a different branch of the

relations between the two countries, as established by this

treaty of amity and commerce, which was the reciprocal right

of either to carry on a free trade with the enemies of the

other, restricted only by the stipulations of the same treaty in

relation to articles to be considered contraband of war. This

reciprocal right is defined in the twenty-third article of the

treaty, which is in the words following:

"'_Art. 23._ It shall be lawful for all and singular the

subjects of the Most Christian King, and the citizens, people,

and inhabitants of the said United States, to sail with their

ships with all manner of liberty and security, no distinction

being made who are the proprietors of the merchandises laden

thereon, from any port to the places of those who now are or

hereafter shall be at enmity with the Most Christian King,

or the United States. It shall likewise be lawful for the

subjects and inhabitants aforesaid to sail with the ships and

merchandises aforementioned, and to trade with the same liberty

and security from the places, ports, and havens of those who

are enemies of both or either party, without any opposition

or disturbance whatsoever, not only directly from the places

of the enemy aforementioned to neutral places, but also from

one place belonging to an enemy to another place belonging to

an enemy, whether they be under the jurisdiction of the same

prince, or under several. And it is hereby stipulated that free

ships shall also give a freedom to goods, and that every thing

shall be deemed to be free and exempt which shall be found on

board the ships belonging to the subjects of either of the

confederates, although the whole lading, or any part thereof,

should appertain to the enemies of either, contraband goods

being always excepted. It is also agreed, in like manner, that

the same liberty be extended to persons who are on board a free

ship, with this effect, that although they be enemies to both or

either party, they are not to be taken out of that free ship,

unless they are soldiers and in actual service of the enemies.'

"The restrictions as to articles to be held between the two

nations as contraband of war, Mr. W. said, were to be found

in the twenty-fourth article of this same treaty of amity and

commerce, and were as follows:

"'_Art._ 24. This liberty of navigation and commerce shall

extend to all kinds of merchandises, excepting those only which

are distinguished by the name of contraband, and under this

name of contraband, or prohibited goods, shall be comprehended

arms, great guns, bombs, with fuses and other things belonging

to them, cannon ball, gunpowder, match, pikes, swords, lances,

spears, halberds, mortars, petards, grenades, saltpetre,

muskets, musket ball, helmets, breastplates, coats of mail,

and the like kinds of arms proper for arming soldiers, musket

rests, belts, horses with their furniture, and all other warlike

instruments whatever. These merchandises which follow shall

not be reckoned among contraband or prohibited goods; that

is to say, all sorts of cloths, and all other manufactures

woven of any wool, flax, silk, cotton, or any other material

whatever; all kinds of wearing apparel, together with the

species whereof they are used to be made; gold and silver, as

well coined as uncoined: tin, iron, latten, copper, brass,

coals; as also wheat and barley, and any other kind of corn

and pulse: tobacco, and likewise all manner of spices; salted

and smoked flesh, salted fish, cheese, and butter, beer, oils,

wines, sugars, and all sorts of salts; and, in general, all

provisions which serve for the nourishment of mankind, and the

sustenance of life; furthermore, all kinds of cotton, hemp,

flax, tar, pitch, ropes, cables, sails, sail cloths, anchors,

and any part of anchors, also ships' masts, planks, boards, and

beams, of what trees soever; and all other things proper either

for building or repairing ships, and all other goods whatever

which have not been worked into the form of any instrument or

thing prepared for war by land or by sea, shall not be reputed

contraband, much less such as have been already wrought and

made up for any other use; all which shall be wholly reckoned

among free goods; as likewise all other merchandises and things

which are not comprehended and particularly mentioned in the

foregoing enumeration of contraband goods, so that they may be

transported and carried in the freest manner by the subjects of

both confederates, even to the places belonging to an enemy,

such towns or places being only excepted as are at that time

besieged, blocked up, or invested.'

"Mr. W. said this closed his references to this treaty, with

the remark, which he wished carefully borne in mind, that the

accepted public law was greatly departed from in this last

article. Provisions, in their broadest sense, materials for

ships, rigging for ships, and indeed almost all the articles

of trade mentioned in the long exception in the article of the

treaty, were articles contraband of war by the law of nations.

This article, therefore, placed our commerce with France upon

a footing widely different, in case of a war between France

and any third power, from the rules which would regulate that

commerce with the other belligerent, with whom we might not have

a similar commercial treaty. Such was its effect as compared

with our relations with England, with which power we had no

commercial treaty whatever, but depended upon the law of nations

as our commercial rule and standard of intercourse.

"Mr. W. said he now passed to the treaty of alliance between

France and the United States, of the same date with the treaty

of amity and commerce before referred to, and his first

reference was to the 11th article of this latter treaty. It was

in the following words:

"'_Art._ 11. The two parties guarantee mutually from the

present time, and for ever, 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 guarantees 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, conformable to the fifth and sixth articles

above written, the whole as their possessions shall be fixed and

assured to the said States at the moment of the cessation of

their present war with England.'

"This article, Mr. W. said, was the most important reference he

had made, or could make, so far as the claims provided for by

this bill were concerned, because he understood the friends of

the bill to derive the principal consideration to the United

States, which created their liability to pay the claims, from

the guaranty on the part of the United States contained in

it. The Senate would see that the article was a mutual and

reciprocal guaranty, 1st. On the part of the United States to

France, of her possessions in America; and 2d. On the part of

France to the United States, of their 'liberty, sovereignity,

and independence, absolute and unlimited, as well in matters

of government as commerce, and also their possessions,' &c.;

and that the respective guarantees were 'for ever.' It would

by-and-by appear in what manner this guaranty on the part of our

government was claimed to be the foundation for this pecuniary

responsibility for millions, but at present he must complete his

references to the treaties which formed the law between the two

nations, and the rule of their relations to and with each other.

He had but one more article to read, and that was important

only as it went to define the one last cited. This was the 12th

article of the treaty of alliance, and was as follows:

"'_Art._ 12. In order to fix more precisely the sense and

application of the preceding article, the contracting parties

declare that, in case of a rupture between France and England,

the reciprocal guaranty declared in the said article 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.'

"These, said Mr. W., are the treaty stipulations between France

and the United States, existing at the time of the commencement

of the disturbances between the two countries, which gave rise

to the claims now the subject of consideration, and which seem

to bear most materially upon the points in issue. There were

other provisions in the treaties between the two governments

more or less applicable to the present discussion, but, in the

course he had marked out for himself, a reference to them was

not indispensable, and he was not disposed to occupy the time

or weary the patience of the Senate with more of these dry

documentary quotations than he found absolutely essential to

a full and clear understanding of the points he proposed to

examine.

"Mr. W. said he was now ready to present the origin of the

claims which formed the subject of the bill. The war between

France and England broke out, according to his recollection,

late in the year 1792, or early in the year 1793, and the

United States resolved upon preserving the same neutral

position between those belligerents, which they had assumed at

the commencement of the war between France and certain other

European powers. This neutrality on the part of the United

States seemed to be acceptable to the then French Republic, and

her minister in the United States and her diplomatic agents at

home were free and distinct in their expressions to this effect.

"Still that Republic made broad claims under the 17th article of

the treaty of amity and commerce before quoted, and her minister

here assumed the right to purchase ships, arm them as privateers

in our ports, commission officers for them, enlist our own

citizens to man them and, thus prepared, to send them from our

ports to cruise against English vessels upon our coast. Many

prizes were made, which were brought into our ports, submitted

to the admiralty jurisdiction conferred by the French Republic

upon her consuls in the United States, condemned, and the

captured vessels and cargoes exposed for sale in our markets.

These practices were immediately and earnestly complained of by

the British government as violations of the neutrality which

our government had declared, and which we assumed to maintain

in regard to all the belligerents, as favors granted to one of

the belligerents, not demandable of right under our treaties

with France, and as wholly inconsistent, according to the rules

of international law, with our continuance as a neutral power.

Our government so far yielded to these complaints as to prohibit

the French from fitting out, arming, equipping, or commissioning

privateers in our ports, and from enlisting our citizens to bear

arms under the French flag.

"This decision of the rights of France, under the treaty of

amity and commerce, produced warm remonstrances from her

minister in the United States, but was finally ostensibly

acquiesced in by the Republic, although constant complaints

of evasions and violations of the rule continued to harass

our government, and to occupy the attention of the respective

diplomatists.

"The exclusive privilege of our ports for her armed vessels,

privateers, and their prizes, granted to France by the treaty

of amity and commerce, as has before been seen, excited the

jealousy of England, and she was not slow in sending a portion

of her vast navy to line our coast and block up our ports and

harbors. The insolence of power induced some of her armed

vessels to enter our ports, and to remain, in violation of our

treaty with France, though not by the consent of our government,

or when we had the power to enforce the treaty by their

ejection. These incidents, however, did not fail to form the

subject of new charges from the French ministers, of bad faith

on our part, of partiality to England to the prejudice of our

old and faithful ally, of permitted violations of the treaties,

and of an inefficiency and want of zeal in the performance of

our duties as neutrals. To give point to these complaints,

some few instances occurred in which British vessels brought

their prizes into our ports, whether in all cases under those

casualties of stress of weather, or the dangers of the sea,

which rendered the act in conformity with the treaties and the

law of nations or not, is not perhaps very certain or very

material, inasmuch as the spirit of complaint seems to have

taken possession of the French negotiators, and these acts gave

colorable ground to their remonstrances.

"Contemporaneously with these grounds of misunderstanding and

these collisions of interest between the belligerents, and

between the interests of either of them and the preservation of

our neutrality, the French began to discover the disadvantages

to them, and the great advantages to the British, of the

different rules which governed the commerce between the two

nations and the United States. The rule between us and France

was the commercial treaty of which the articles above quoted

form a part, and the rule between us and Great Britain, was that

laid down by the law of nations. Mr. W. said he would detain

the Senate to point out but two of the differences between

these rules of commerce and intercourse, because upon these

two principally depended the difficulties which followed. The

first was, that, by the treaty between us and France, 'free

ships shall also give a freedom to the goods; and every thing

shall be deemed to be free and exempt which shall be found on

board the ships belonging to the subjects of either of the

confederates, although the whole lading, or any part thereof,

should appertain to the enemy of either, contraband goods being

always excepted;' while the law of nations, which was the rule

between us and England, made the goods of an enemy a lawful

prize, though found in the vessel of a friend. Hence it followed

that French property on board of an American vessel was subject

to capture by British cruisers without indignity to our flag,

or a violation to international law, while British property on

board of an American vessel could not be captured by a French

vessel without an insult to the flag of the United States, and

a direct violation of the twenty-third article of the treaty of

amity and commerce between us and France, before referred to.

"Mr. W. said the second instance of disadvantage to France which

he proposed to mention, was the great difference between the

articles made contraband of war by the twenty-fourth article of

the treaty of amity and commerce, before read to the Senate, and

by the law of nations. By the treaty, provisions of all kinds,

ship timber, ship tackle (guns only excepted), and a large list

of other articles of trade and commerce, were declared not to be

contraband of war, while the same articles are expressly made

contraband by the law of nations. Hence an American vessel,

clearing for a French port with a cargo of provisions or ship

stores, was lawful prize to a British cruiser, as, by the law

of nations, carrying articles contraband of war to an enemy,

while the same vessel, clearing for a British port, with the

same cargo, could not be captured by a French vessel, because

the treaty declared that the articles composing the cargo

should not be contraband as between the United States and

France. Mr. W. said the Senate would see, at a single glance,

how eminently these two advantages on the part of Great Britain

were calculated to turn our commerce to her ports, where, if the

treaty between us and France was observed, our vessels could

go in perfect safety, while, laden with provisions, our only

considerable export, and destined for a French port, they were

liable to capture, as carrying to an enemy contraband articles.

Upon their return, too, they were equally out of danger from

French cruisers, as, by the treaty, free ships made free the

goods on board; while, if they cleared from a port in France

with a French cargo, they were lawful prize to the British, upon

the principle of the law of nations, that the goods of an enemy

are lawful prize, even when found in the vessel of a friend.

"Both nations were in constant and urgent want of provisions

from the United States; and this double advantage to England

of having her ports open and free to our vessels, and of

possessing the right to capture those bound to French ports,

exasperated the French Republic beyond endurance. Her ministers

remonstrated with our government, controverted our construction

of British rights, again renewed the accusations of partiality,

and finally threw off the obligations of the treaty; and, by

a solemn decree of their authorities at home, established the

rule which governed the practice of the British cruisers.

France, assuming to believe that the United States permitted the

neutrality of her flag to be violated by the British, without

resistance, declared that she would treat the flag of all

neutral vessels as that flag should permit itself to be treated

by the other belligerents. This opened our commerce to the

almost indiscriminate plunder and depredation of all the powers

at war, and but for the want of the provisions of the United

States, which was too strongly felt both in England and France

not to govern, in a great degree, the policy of the two nations,

it would seem probable, from the documentary history of the

period, that it must have been swept from the ocean. Impelled by

this want, however, the British adopted the rule, at an early

day, that the provisions captured, although in a strict legal

sense forfeited, as being by the law of nations contraband,

should not be confiscated, but carried into English ports, and

paid for, at the market price of the same provisions, at the

port of their destination. The same want compelled the French,

when they came to the conclusion to lay aside the obligations

of the treaty, and to govern themselves, not by solemn compacts

with friendly powers, but by the standards of wrong adopted

by their enemies, to adopt also the same rule, and instead of

confiscating the cargo as contraband of war, if provisions, to

decree a compensation graduated by the market value at the port

of destination.

"Such, said Mr. W., is a succinct view of the disturbances

between France and the United States, and between France and

Great Britain, out of which grew what are now called the French

claims for spoliations upon our commerce, prior to the 30th of

September, 1800. Other subjects of difference might have had

a remote influence; but, Mr. W. said, he believed it would be

admitted by all, that those he had named were the principal,

and might be assumed as having given rise to the commercial

irregularities in which the claims commenced. This state of

things, without material change, continued until the year 1798,

when our government adopted a course of measures intended to

suspend our intercourse with France, until she should be brought

to respect our rights. These measures were persevered in by the

United States, up to September, 1800, and were terminated by the

treaty between the two nations of the 30th of that month. Here,

too, terminated claims which now occupy the attention of the

Senate.

"As it was the object of the claimants to show a liability, on

the part of our government, to pay their claims, and the bill

under discussion assumed that liability, and provided, in part

at least, for the payment, Mr. W. said it became his duty to

inquire what the government had done to obtain indemnity for

these claimants from France, and to see whether negligence

on its part had furnished equitable or legal ground for the

institution of this large claim upon the national treasury.

The period of time covered by the claims, as he understood the

subject, was from the breaking out of the war between France and

England, in 1793, to the signing of the treaty between France

and the United States, in September, 1800; and he would consider

the efforts the government had made to obtain indemnity:

"1st. From 1793 to 1798.

"2d. From 1798 to the treaty of the 30th September, 1800.

"During the first period, Mr. W. said, these efforts were

confined to negotiation, and he felt safe in the assertion

that, during no equal period in the history of our government,

could there be found such untiring and unremitted exertions

to obtain justice for citizens who had been injured in their

properties by the unlawful acts of a foreign power. Any one who

would read the mass of diplomatic correspondence between this

government and France, from 1793 to 1798, and who would mark

the frequent and extraordinary missions, bearing constantly in

mind that the recovery of these claims was the only ground upon

our part for the whole negotiation, would find it difficult to

say where negligence towards the rights and interests of its

citizens is imputable to the government of the United States,

during this period. He was not aware that such an imputation

had been or would be made; but sure he was that it could not be

made with justice, or sustained by the facts upon the record. No

liability, therefore, equitable or legal, had been incurred, up

to the year 1798.

"And if, said Mr. W., negligence is not imputable, prior to

1798, and no liability had then been incurred, how is it for

the second period, from 1798 to 1800? The efforts of the former

period were negotiation--constant, earnest, extraordinary

negotiation. What were they for the latter period? His answer

was, war; actual, open war; and he believed the statute book

of the United States would justify him in the position. He was

well aware that this point would be strenuously controverted,

because the friends of the bill would admit that, if a state of

war between the two countries did exist, it put an end to claims

existing prior to the war, and not provided for in the treaty of

peace, as well as to all pretence for claims to indemnity for

injuries to our commerce, committed by our enemy in time of war.

Mr. W. said he had found the evidences so numerous, to establish

his position that a state of actual war did exist, that he

had been quite at a loss from what portion of the testimony

of record to make his selections, so as to establish the fact

beyond reasonable dispute, and at the same time not to weary

the Senate by tedious references to laws and documents. He had

finally concluded to confine himself exclusively to the statute

book, as the highest possible evidence, as in his judgment

entirely conclusive, and as being susceptible of an arrangement

and condensation which would convey to the Senate the whole

material evidence, in a satisfactory manner, and in less compass

than the proofs to be drawn from any other source. He had,

therefore, made a very brief abstract of a few statutes, which

he would read in his place:

"By an act of the 28th May, 1798, Congress authorized the

capture of all armed vessels of France which had committed

depredations upon our commerce, or which should be found

hovering upon our coast for the purpose of committing such

depredations.

"By an act of the 13th June, 1798, only sixteen days after the

passage of the former act, Congress prohibited all vessels of

the United States from visiting any of the ports of France or

her dependencies, under the penalty of forfeiture of vessel and

cargo; required every vessel clearing for a foreign port to

give bonds (the owner, or factor and master) in the amount of

the vessel and cargo, and good sureties in half that amount,

conditioned that the vessel to which the clearance was to be

granted, would not, voluntarily, visit any port of France or

her dependencies; and prohibited all vessels of France, armed

or unarmed, or owned, fitted, hired, or employed, by any person

resident within the territory of the French Republic, or its

dependencies, or sailing or coming therefrom, from entering or

remaining in any port of the United States, unless permitted by

the President, by special passport, to be granted by him in each

case.

"By an act of the 25th June, 1798, only twelve days after the

passage of the last-mentioned act, Congress authorized the

merchant vessels of the United States to arm, and to defend

themselves against any search, restraint, or seizure, by vessels

sailing under French colors, to repel force by force to capture

any French vessel attempting a search, restraint, or seizure,

and to recapture any American merchant vessel which had been

captured by the French.

"Here, Mr. W. said, he felt constrained to make a remark upon

the character of these several acts of Congress, and to call

the attention of the Senate to their peculiar adaptation to the

measures which speedily followed in future acts of the national

legislature. The first, authorizing the capture of French armed

vessels, was peculiarly calculated to put in martial preparation

all the navy which the United States then possessed, and to

spread it upon our coast. The second, establishing a perfect

non-intercourse with France, was sure to call home our merchant

vessels from that country and her dependencies, to confine

within our own ports those vessels intended for commerce with

France, and thus to withdraw from the reach of the French

cruisers a large portion of the ships and property of our

citizens. The third, authorizing our merchantmen to arm, was the

greatest inducement the government could give to its citizens

to arm our whole commercial marine, and was sure to put in

warlike preparation as great a portion of our merchant vessels

as a desire of self-defence, patriotism, or cupidity, would arm.

Could measures more eminently calculated to prepare the country

for a state of war have been devised or adopted? Was this the

intention of those measures, on the part of the government, and

was that intention carried out into action? Mr. W. said he would

let the subsequent acts of the Congress of the United States

answer; and for that purpose, he would proceed to read from his

abstract of those acts:

"By an act of the 28th June, 1798, three days after the passage

of the act last referred to, Congress authorized the forfeiture

and condemnation of all French vessels captured in pursuance of

the acts before mentioned, and provided for the distribution of

the prize money, and for the confinement and support, at the

expense of the United States, of prisoners taken in the captured

vessels.

"By an act of the 7th July, 1798, nine days after the passage

of the last-recited act, Congress declared 'that the United

States are of right freed and exonerated from the stipulations

of the treaties and of the consular convention heretofore

concluded between the United States and France; and that the

same shall not henceforth be regarded as legally obligatory on

the government or citizens of the United States.'

"By an act of the 9th July, 1798, two days after the passage

of the act declaring void the treaties, Congress authorized

the capture, by the public armed vessels of the United States,

of all armed French vessels, whether within the jurisdictional

limits of the United States or upon the high seas, their

condemnation as prizes, their sale, and the distribution of the

prize money; empowered the President to grant commissions to

private armed vessels to make the same captures, and with the

same rights and powers, as public armed vessels; and provided

for the safe keeping and support of the prisoners taken, at the

expense of the United States.

"By an act of the 9th February, 1799, Congress continued the

non-intercourse between the United States and France for one

year, from the 3d of March, 1799.

"By an act of the 28th February, 1799, Congress provided for an

exchange of prisoners with France, or authorized the President,

at his discretion, to send to the dominions of France, without

an exchange, such prisoners as might remain in the power of the

United States.

"By an act of the 3d March, 1799, Congress directed the

President, in case any citizens of the United States, taken on

board vessels belonging to any of the powers at war with France,

by French vessels, should be put to death, corporally punished,

or unreasonably imprisoned, to retaliate promptly and fully upon

any French prisoners in the power of the United States.

"By an act of the 27th February, 1800, Congress again continued

the non-intercourse between us and France, for one year, from

the 3d of March, 1800.

"Mr. W. said he had now closed the references he proposed

to make to the laws of Congress, to prove that war--actual

war--existed between the United States and France, from July,

1798, until that war was terminated by the treaty of the 30th

of September, 1800. He had, he hoped, before shown that the

measures of Congress, up to the passage of the act of Congress

of the 25th of June, 1798, and including that act, were

appropriate measures preparatory to a state of war; and he had

now shown a total suspension of the peaceable relations between

the two governments, by the declaration of Congress that the

treaties should no longer be considered binding and obligatory

upon our government or its citizens. What, then, but war could

be inferred from an indiscriminate direction to our public armed

vessels, put in a state of preparation, by preparatory acts, to

capture all armed French vessels upon the high seas, and from

granting commissions to our whole commercial marine, also armed

by the operation of previous acts of Congress, authorizing them

to make the same captures, with regulations applicable to both,

for the condemnation of the prizes, the distribution of the

prize money, and the detention, support, and exchange of the

prisoners taken in the captured vessels? Will any man, said Mr.

W., call this a state of peace?

"[Here Mr. Webster, chairman of the select committee which

reported the bill, answered, 'Certainly.']

"Mr. W. proceeded. He said he was not deeply read in the

treatises upon national law, and he should never dispute with

that learned gentleman upon the technical definitions of peace

and war, as given in the books; but his appeal was to the plain

sense of every senator and every citizen of the country. Would

either call that state of things which he had described, and

which he had shown to exist from the highest of all evidence,

the laws of Congress alone, peace? It was a state of open and

undisguised hostility, of force opposed to force, of war upon

the ocean, as far as our government were in command of the

means to carry on a maritime war. If it was peace, he should

like to be informed, by the friends of the bill, what would

be war. This was violence and bloodshed, the power of the one

nation against the power of the other, reciprocally exhibited by

physical force.

"Couple with this the withdrawal by France of her minister

from this government, and her refusal to receive the American

commission, consisting of Messrs. Marshall, Pinckney, and Gerry,

and the consequent suspension of negotiations between the two

governments, during the period referred to; and Mr. W. said, if

the facts and the national records did not show a state of war,

he was at a loss to know what state of things between nations

should be called war.

"If, however, the Senate should think him wrong in this

conclusion, and that the claims were not utterly barred by war,

he trusted the facts disclosed in this part of his argument

would be considered sufficient at least to protect the faith

of the government in the discharge of its whole duty to its

citizens; and that after it had carried on these two years of

war, or, if not war, of actual force and actual fighting, in

which the blood of its citizens had been shed, and their lives

sacrificed to an unknown extent, for the single and sole purpose

of enforcing these claims of individuals, the imputation of

negligence, and hence of liability to pay the claims, would not

be urged as growing out of this portion of the conduct of the

government.

"Mr. W. said he now came to consider the treaty of the 30th

September, 1800, and the reasons which appeared plainly to his

mind to have induced the American negotiators to place that

negotiation upon the basis, not of an existing war, but of a

continued peace. That such was assumed to be the basis of the

negotiation, he believed to be true, and this fact, and this

fact only, so far as he had heard the arguments of the friends

of the bill, was depended upon to prove that there had been no

war. He had attempted to show that war in fact had existed, and

been carried on for two years; and if he could now show that the

inducement, on the part of the American ministers, to place the

negotiation which was to put an end to the existing hostilities

upon a peace basis, arose from no considerations of a national

or political character, and from no ideas of consistency with

the existing state of facts, but solely from a desire still

to save, as far as might be in their power, the interests of

these claimants, he should submit with great confidence that it

did not lay in the mouths of the same claimants to turn round

and claim this implied admission of an absence of war, thus

made by the agents of the government out of kindness to them,

and an excess of regard for their interests, as the basis of

a liability to pay the damages which they had sustained, and

which this diplomatic untruth, like all the previous steps of

the government, failed to recover for them. What, then, Mr.

President, said Mr. W., was the subject on our part, of the

constant and laborious negotiations carried on between the two

governments from 1793 to 1798? The claims. What, on our part,

was the object of the disturbances from 1798 to 1800--of the

non-intercourse--of the sending into service our navy, and

arming our merchant vessels--of our raising troops and providing

armies on the land--of the expenditure of the millions taken

from the treasury and added to our public debt, to equip and

sustain these fleets and armies? The claims. Why were our

citizens sent to capture the French, to spill their blood, and

lay down their lives upon the high seas? To recover the claims.

These were the whole matter. We had no other demand upon France,

and, upon our part, no other cause of difference with her.

"What public, or national, or political object had we in the

negotiation of 1800, which led to the treaty of the 30th

September of that year? None, but to put an end to the existing

hostilities, and to restore relations of peace and friendship.

These could have been as well secured by negotiating upon a

war as a peace basis. Indeed, as there were in our former

treaties stipulations which we did not want to revive, a

negotiation upon the basis of existing war was preferable, so

far as the interests of the government were concerned, because

that would put all questions, growing out of former treaties

between the parties, for ever at rest. Still our negotiators

consented to put the negotiation upon the basis of continued

peace, and why? Because the adoption of a basis of existing war

would have barred effectually and for ever all classes of the

claims. This, Mr. W. said, was the only possible assignable

reason for the course pursued by the American negotiators;

it was the only reason growing out of the existing facts,

or out of the interests, public or private, involved in the

difficulties between the two nations. He therefore felt himself

fully warranted in the conclusion, that the American ministers

preferred and adopted a peace basis for the negotiation which

resulted in the treaty of the 30th of September, 1800, solely

from a wish, as far as they might be able, to save the interests

of our citizens holding claims against France.

"Did they, Mr. President, said Mr. W., succeed by this artifice

in benefiting the citizens who had sustained injuries? He would

let the treaty speak for itself. The following are extracts from

the 4th and 5th articles:

"'_Art._ 4. Property captured, and not yet definitively

condemned, or which may be captured before the exchange of

ratifications (contraband goods destined to an enemy's port

excepted), shall be mutually restored on the following proof of

ownership.'

"[Here follows the form of proof, when the article proceeds:]

"'This article shall take effect from the date of the signature

of the present convention. And if, from the date of the said

signature, any property shall be condemned contrary to the

intent of the said convention, before the knowledge of this

stipulation shall be obtained, the property so condemned shall,

without delay, be restored or paid for.'

"'_Art._ 5. The debts contracted for by one of the two nations

with individuals of the other, or by individuals of the one

with 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

confiscations.'

"Here, Mr. W. said, was evidence from the treaty itself, that,

by assuming a peace basis for the negotiation, the property of

our merchants captured and not condemned was saved to them, and

that certain classes of claimants against the French government

were provided for, and their rights expressly reserved. So much,

therefore, was gained by our negotiators by a departure from the

facts, and negotiating to put an end to existing hostilities

upon the basis of a continued peace. Was it, then, generous

or just to permit these merchants, because our ministers did

not succeed in saving all they claimed, to set up this implied

admission of continued peace as the foundation of a liability

against their own government to pay what was not recovered

from France? He could not so consider it, and he felt sure the

country never would consent to so responsible an implication

from an act of excessive kindness. Mr. W. said he must not be

understood as admitting that all was not, by the effect of

this treaty, recovered from France, which she ever recognized

to be due, or ever intended to pay. On the contrary, his best

impression was, from what he had been able to learn of the

claims, that the treaty of Louisiana provided for the payment of

all the claims which France ever admitted, ever intended to pay,

or which there was the most remote hope of recovering in any

way whatever. He should, in a subsequent part of his remarks,

have occasion to examine that treaty, the claims which were paid

under it, and to compare the claims paid with those urged before

the treaty of September, 1800.

"Mr. W. said he now came to the consideration of the liability

of the United States to these claimants, in case it shall be

determined by the Senate that a war between France and the

United States had not existed to bar all ground of claim either

against France or the United States. He understood the claimants

to put this liability upon the assertion that the government of

the United States had released their claims against France by

the treaty of the 30th of September, 1800, and that the release

was made for a full and valuable consideration passing to the

United States, which in law and equity made it their duty to

pay the claims. The consideration passing to the United States

is alleged to be their release from the onerous obligations

imposed upon them by the treaties of amity and commerce and

alliance of 1778, and the consular convention of 1778, and

especially and principally by the seventeenth article of the

treaty of amity and commerce, in relation to armed vessels,

privateers, and prizes, and by the eleventh article of the

treaty of alliance containing the mutual guarantees.

"The release, Mr. W. said, was claimed to have been made in the

striking out, by the Senate of the United States, of the second

article of the treaty of 30th September, 1800, as that article

was originally inserted and agreed upon by the respective

negotiators of the two powers, as it stood at the time the

treaty was signed. To cause this point to be clearly understood,

it would be necessary for him to trouble the Senate with a

history of the ratification of this treaty. The second article,

as inserted by the negotiators, and as standing at the time of

the signing of the treaty, was in the following words:

"'_Art._ 2. The ministers plenipotentiary of the two powers

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 upon 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:'

"The residue of the treaty, Mr. W. said, was a substantial copy

of the former treaties of amity and commerce, and alliance

between the two nations, with such modifications as were

desirable to both, and as experience under the former treaties

had shown to be for the mutual interests of both.

"This second article was submitted to the Senate by the

President as a part of the treaty, as by the constitution of the

United States the President was bound to do, to the end that

the treaty might be properly ratified on the part of the United

States, the French government having previously adopted and

ratified it as it was signed by the respective negotiators, the

second article being then in the form given above. The Senate

refused to advise and consent to this article, and expunged it

from the treaty, inserting in its place the following:

"'It is agreed that the present convention shall be in force for

the term of eight years from the time of the exchange of the

ratifications.'

"In this shape, and with this modification the treaty was duly

ratified by the President of the United States, and returned to

the French government for its dissent or concurrence. Bonaparte,

then First Consul, concurred in the modification made by the

Senate, in the following language, and upon the condition

therein expressed:

"'The government of the United States having added to its

ratification that the convention should be in force for the

space of eight years, and having omitted the second article,

the government of the French Republic consents to accept,

ratify, and confirm the above convention, with the addition,

purporting that the convention shall be in force for the space

of eight years, and with the retrenchment of the second article:

_Provided_, That, by this retrenchment, the two States renounce

the respective pretensions which are the object of the said

article.'

"This ratification by the French Republic, thus qualified,

was returned to the United States, and the treaty, with the

respective conditional ratifications, was again submitted by

the President of the United States to the Senate. That body

'resolved that they considered the said convention as fully

ratified, and returned the same to the President for the usual

promulgation;' whereupon he completed the ratification in the

usual forms and by the usual publication.

"This, Mr. W. said, was the documentary history of this treaty

and of its ratification, and here was the release of their

claims relied upon by the claimants under the bill before the

Senate. They contend that this second article of the treaty, as

originally inserted by the negotiators, reserved their claims

for future negotiation, and also reserved the subjects of

disagreement under the treaties of amity and commerce, and of

alliance, of 1778, and the consular convention of 1788; that

the seventeenth article of the treaty of amity and commerce,

and the eleventh article of the treaty of alliance, were

particularly onerous upon the United States; that, to discharge

the government from the onerous obligations imposed upon it

in these two articles of the respective treaties, the Senate

was induced to expunge the second article of the treaty of

the 30th September above referred to, and, by consequence, to

expunge the reservation of their claims as subjects of future

negotiation between the two nations; that, in thus obtaining a

discharge from the onerous obligations of these treaties, and

especially of the two articles above designated, the United

States was benefited to an amount beyond the whole value of the

claims discharged, and that this benefit was the inducement to

the expunging of the second article of the treaty, with a full

knowledge that the act did discharge the claims, and create a

legal and equitable obligation on the part of the government to

pay them.

"These, Mr. W. said, he understood to be the assumptions of

the claimants, and this their course of reasoning to arrive at

the conclusion that the United States were liable to them for

the amount of their claims. He must here raise a preliminary

question, which he had satisfied himself would show which

assumptions of the claimants to be wholly without foundation, so

far as the idea of benefit to the United States was supposed to

be derived from expunging this second article of the treaty of

1800. What, he must be permitted to ask, would have been the

liability of the United States under the 'onerous obligations'

referred to, in case the Senate had ratified the treaty,

retaining this second article? The binding force of the treaties

of amity and commerce, and of alliance, and of the consular

convention, was released, and the treaties and convention were

themselves suspended by the very article in question; and the

subjects of disagreement growing out of them were merely made

matters of future negotiation 'at a convenient time.' What

was the value or the burden of such an obligation upon the

United States? for this was the only obligation from which our

government was released by striking out the article. The value,

Mr. W. said, was the value of the privilege, being at perfect

liberty, in the premises, of assenting to or dissenting from a

bad bargain, in a matter of negotiation between ourselves and a

foreign power. This was the consideration passing to the United

States, and, so far as he was able to view the subject, this

was all the consideration the government had received, if it be

granted (which he must by no means be understood to admit), that

the striking out of the article was a release of the claims,

and that such release was intended as a consideration for the

benefits to accrue to the government from the act.

"Mr. W. said he felt bound to dwell, for a moment, upon this

point. What was the value of an obligation to negotiate 'at a

convenient time?' Was it any thing to be valued? The 'convenient

time' might never arrive, or if it did arrive, and negotiations

were opened, were not the government as much at liberty as in

any other case of negotiation, to refuse propositions which were

deemed disadvantageous to itself? The treaties were suspended,

and could not be revived without the consent of the United

States; and, of consequence, the 'onerous obligations' comprised

in certain articles of these treaties were also suspended until

the same consent should revive them. Could he, then, be mistaken

in the conclusion that, if the treaty of 1800 had been ratified

with the second article forming a part of it, as originally

agreed by the negotiators, the United States would have been as

effectually released from the onerous obligations of the former

treaties, until those obligations should again be put in force

by their consent, as they were released when that article was

stricken out, and the treaty ratified without it? In short,

could he be mistaken in the position that all the inducement, of

a national character, to expunge that article from the treaty,

was to get rid of an obligation to negotiate 'at a convenient

time?' And could it be possible that such an inducement would

have led the Senate of the United States, understanding this

consequence, to impose upon the government a liability to

the amount of $5,000,000? He could not adopt so absurd a

supposition; and he felt himself compelled to say that this view

of the action of the government in the ratification of the

treaty of 1800, in his mind, put an end to the pretence that the

striking out of this article relieved the United States from

obligations so onerous as to form a valuable consideration for

the payments provided for in this bill. He could not view the

obligation released--a mere obligation to negotiate--as onerous

at all, or as forming any consideration whatever for a pecuniary

liability, much less for a liability for millions.

"Mr. W. said he now proposed to consider whether the effect

of expunging the second article of the treaty of 1800 was to

release any claim of value--any claim which France had ever

acknowledged, or ever intended to pay. He had before shown, by

extracts from the fourth and fifth articles of the treaty of

1800, that certain classes of claims were saved by that treaty,

as it was ratified. The claims so reserved and provided for were

paid in pursuance of provisions contained in the treaty between

France and the United States, of the 30th of April, 1803; and to

determine what claims were thus paid, a reference to some of the

articles of that treaty was necessary. The purchase of Louisiana

was made by the United States for the sum of 80,000,000 of

francs, 60,000,000 of which were to be paid into the French

treasury, and the remaining 20,000,000 were to be applied to

the payment of these claims. Three separate treaties were made

between the parties, bearing all the same date, the first

providing for the cession of the territory, the second for the

payment of the 60,000,000 of francs to the French treasury, and

the third for the adjustment and payment of the claims.

"Mr. W. said the references proposed were to the last-named

treaty, and were the following:

"'_Art._ 1. The debts due by France to citizens of the United

States, contracted before the 8th of Vendemiaire, ninth year

of the French Republic (30th September, 1800), shall be paid

according to the following regulations, with interest at six

per cent., to commence from the period when the accounts and

vouchers were presented to the French government.'

"'_Art._ 2. The debts provided for by the preceding article

are those whose result is comprised in the conjectural note

annexed to the present convention, and which, with the interest,

cannot exceed the sum of twenty millions of francs. The claims

comprised in the said note, which fall within the exceptions of

the following articles, shall not be admitted to the benefit of

this provision.'

"'_Art._ 4. 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 of the 8th Vendemiaire, ninth year (30th

September, 1800).'

"'_Art._ 5. 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 the insufficiency of the captors; 2d, the debts mentioned

in the said fifth article of the convention, contracted before

the 8th Vendemiaire, and 9 (30th September, 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; it is the express intention of the contracting

parties not to extend the benefit of the present convention to

reclamations of American citizens, who shall have established

houses of commerce in France, England, or other countries than

the United States, in partnership with foreigners, and who

by that reason and the nature of their commerce, ought to be

regarded as domiciliated in the places where such houses exist.

All agreements and bargains concerning merchandise, which shall

not be the property of American citizens, are equally excepted

from the benefit of the said convention, saving, however, to

such persons their claims in like manner as if this treaty had

not been made.

"From these provisions of the treaty, Mr. W. said, it would

appear that the claims to be paid were of three descriptions, to

wit:

"1. Claims for supplies.

"2. Claims for embargoes.

"3. Claims for captures made at sea, of a description defined

in the last clause of the 4th and the first clause of the 5th

article.

"How far these claims embraced all which France ever

acknowledged, or ever intended to pay, Mr. W. said he was unable

to say, as the time allowed him to examine the case had not

permitted him to look sufficiently into the documents to make

up his mind with precision upon this point. He had found, in a

report made to the Senate on the 14th of January, 1831, in favor

of this bill, by the honorable Mr. Livingston, then a Senator

from the State of Louisiana, the following Classification of the

French claims, as insisted on at a period before the making of

the treaty of 1800, to wit:

"'1. From the capture and detention of about fifty vessels.

"'2. The detention, for a year, of eighty other vessels, under

the Bordeaux embargo.

"'3. The non-payment of supplies to the West India islands, and

to continental France.

"'4. For depredations committed on our commerce in the West

Indies.

"Mr. W. said the comparison of the two classifications of

claims would show, at a single view, that Nos. 2 and 3 in Mr.

Livingston's list were provided for by the treaty of 1803, from

which he had read. Whether any, and if any, what portions of

Nos. 1 and 4 in Mr. Livingston's list were embraced in No 3 of

the provisions of the treaty, as he had numbered them he was

unable to say; but this much he could say, that he had found

nothing to satisfy his mind that parts of both those classes

of claims were not so included, and therefore provided for and

paid under the treaty; nor had he been able to find any thing to

show that this treaty of 1803 did not provide for and pay all

the claims which France ever acknowledged or ever intended to

pay. He was, therefore, unprepared to admit, and did not admit,

that any thing of value to any class of individual claimants

was released by expunging the second original article from

the treaty of the 30th September, 1800. On the contrary, he

was strongly impressed with the belief that the adjustment of

claims provided for in the treaty of 1803 had gone to the whole

extent to which the French government had, at any period of the

negotiations, intended to go.

"Mr. W. said this impression was greatly strengthened by the

circumstance that the claims under the Bordeaux embargo were

expressly provided for in this treaty, while he could see

nothing in the treaty of 1800 which seemed to him to authorize

the supposition that this class of claims was more clearly

embraced within the reservations in that treaty than any class

which had been admitted by the French government.

"Another fact, Mr. W. said, was material to this subject, and

should be borne carefully in mind by every senator. It was, that

not a cent was paid by France, even upon the claims reserved

and admitted by the treaty of 1800, until the sale of Louisiana

to the United States, for a sum greater by thirty millions of

francs than that for which the French minister was instructed

to sell it. Yes, Mr. President, said Mr. W., the only payment

yet made upon any portion of these claims has been virtually

made by the United States; for it has been made out of the

consideration money paid for Louisiana, after paying into the

French treasury ten millions of francs beyond the price France

herself placed upon the territory. It is a singular fact that

the French negotiator was instructed to make the sale for fifty

millions, if he could get no more; and when he found that, by

yielding twenty millions to pay the claims, he could get eighty

millions for the territory, and thus put ten millions more into

the treasury of his nation than she had instructed him to ask

for the whole, he yielded to the claims and closed the treaty.

It was safe to say that, but for this speculation in the sale

of Louisiana, not one dollar would have been paid upon the

claims to this day. All our subsequent negotiations with France

of a similar character, and our present relations with that

country, growing out of private claims, justify this position.

What, then, would have been the value of claims, if such fairly

existed, which were not acknowledged and provided for by the

treaty of 1800, but were left for future negotiation 'at a

convenient time?' Would they have been worth the five millions

of dollars you propose to appropriate by this bill? Would they

have been worth further negotiation? He thought they would not.

"Mr. W. said he would avail himself of this occasion, when

speaking of the treaty of Louisiana and of its connection with

these claims, to explain a mistake into which he had fallen, and

which he found from conversation with several gentlemen, who

had been for some years members of Congress, had been common to

them and to himself. The mistake to which he alluded was, the

supposition that the claimants under this bill put their case

upon the assumption that their claims had constituted part of

the consideration for which Louisiana had been ceded to the

United States; and that the consideration they contended the

government had received, and upon which its liability rested,

was the cession of that territory for a less sum, in money, than

was considered to be its value, on account of the release of

the French government from those private claims. He had rested

under this misapprehension until the opening of the present

debate, and until he commenced an examination of the case. He

then found that it was an entire misapprehension; that the

United States had paid, in money, for Louisiana, thirty millions

of francs beyond the price which France had set upon it; that

the claimants under this bill did not rest their claims at all

upon this basis, and that the friends of the bill in the Senate

did not pretend to derive the liability of the government from

this source. Mr. W. said he was induced to make this explanation

in justice to himself, and because there might be some person

within the hearing of his voice who might still be under the

same misapprehension.

"He had now, Mr. W. said, attempted to establish the following

propositions, viz.:

"1. That a state of actual war, by which he meant a state of

actual hostilities and of force, and an interruption of all

diplomatic or friendly intercourse between the United States and

France, had existed from the time of the passage of the acts

of the 7th and 9th of July, 1798, before referred to, until

the sending of the negotiators, Ellsworth, Davie, and Murray,

in 1800, to make a treaty which put an end to the hostilities

existing, upon the best terms that could be obtained; and

that the treaty of the 30th of September, 1800, concluded by

these negotiators, was, in fact, and so far as private claims

were concerned, to be considered as a treaty of peace, and

to conclude all such claims, not reserved by it, as finally

ratified by the two powers.

"2. That the treaty of amity and commerce, and the treaty of

alliance of 1778, as well as the consular convention of 1788,

were suspended by the 2d article of the treaty of 1800, and

from that time became mere matters for negotiation between the

parties at a convenient time; that, therefore, the desire to

get rid of these treaties, and of any 'onerous obligations'

contained in them, was only the desire to get rid of an

obligation to negotiate 'at a convenient time;' and that such a

consideration could not have induced the Senate of the United

States to expunge that article from the treaty, if thereby that

body had supposed it was imposing upon the country a liability

to pay to its citizens the sum of five millions of dollars--a

sum much larger than France had asked, in money, for a full

discharge from the 'onerous obligations' relied upon.

"3. That the treaty of 1800 reserved and provided for certain

portions of the claims; that payment, according to such

reservations, was made under the treaty of 1803; and that it is

at least doubtful whether the payment thus made did not cover

all the claims ever admitted, or ever intended to be paid by

France; for which reason the expunging of the second article of

the treaty of 1800, by the Senate of the United States, in all

probability, released nothing which ever had, or which was ever

likely to have value.

"Mr. W. said, if he had been successful in establishing either

of these positions, there was an end of the claims, and, by

consequence, a defeat of the bill.

"The advocates of the bill conceded that two positions must be

established, on their part, to sustain it, to wit:

"1. That the claims were valid claims against France, and had

never been paid. And

"2. That they were released by the government of the United

States for a full and valuable consideration passing to its

benefit by means of the release.

"If, then, a state of war had existed, it would not be contended

that any claims of this character, not reserved or provided

for in the treaty of peace, were valid claims after the

ratification of such a treaty. His first proposition, therefore,

if sustained, would defeat the bill, by establishing the fact

that the claims, if not reserved in the treaty of 1800, were not

valid claims.

"The second proposition, if sustained, would establish the

fact that, inasmuch as the valuable consideration passing to

the United States was alleged to grow out of the 'onerous

obligations' in the treaty of amity and commerce, the treaty

of alliance, and the consular convention; and inasmuch as

these treaties, and all obligations, past, present, or future,

'onerous' or otherwise, growing out of them, were suspended

and made inoperative by the second article of the treaty of

the 30th of September, 1800, until further negotiation, by the

common consent of both powers, should revive them, the Senate of

the United States could not have expected, when they expunged

this article from the treaty, that, by thus discharging the

government from an obligation to negotiate 'at a convenient

time,' they were incurring against it a liability of millions;

in other words, the discharge of the government from an

obligation to negotiate upon any subject 'at a convenient time,'

could not have been considered by the Senate of the United

States as a good and valuable consideration for the payment of

private claims to the amount of five millions of dollars.

"The third proposition, if sustained, would prove that all the

claims ever acknowledged, or ever intended to be paid by France,

were paid under the treaty of 1803, and that, therefore, as

claims never admitted or recognized by France would scarcely be

urged as valid claims against her, no valid claims remained;

and, consequently, the expunging of the second article of the

treaty of the 30th of September, 1800, released nothing which

was valid, and nothing remained to be paid by the United States

as a liability incurred by that modification of that treaty.

Here Mr. W. said he would rest his reasoning as to these three

propositions.

"But if the Senate should determine that he had been wrong in

them all, and had failed to sustain either, he had still another

proposition, which he considered conclusive and unanswerable, as

to any valuable consideration for the release of these claims

having passed to the United States in consequence of their

discharge from the 'onerous obligations' said to have been

contained in the former treaties. These 'onerous obligations,'

and the only ones of which he had heard any thing in the course

of the debate, or of which he had found any thing in the

documents, arose under the 17th article of the treaty of amity

and commerce, and the 11th article of the treaty of alliance;

and, in relation to both, he laid down this broad proposition,

which would be fully sustained by the treaties themselves, and

by every act and every expression on the part of the American

negotiators, and the government of the United States, viz.:

"'The obligations, liabilities, and responsibilities, imposed

upon the government of the United States and upon France by the

17th article of the treaty of amity and commerce of 1778, and

by the 11th article of the treaty of alliance of 1778, where

mutual, reciprocal, and equal: each formed the consideration,

and the only consideration, for the other; and, therefore, any

release which discharged both powers from those liabilities,

responsibilities, and obligations, must have been mutual,

reciprocal, and equal; and the release of either must have

formed a full and valuable consideration for the release of the

other.'

"Mr. W. said he would not trouble the Senate by again reading

the articles from the respective treaties. They would be

recollected, and no one would controvert the fact that, when

the treaties were made, these articles were intended to contain

mutual, reciprocal, and equal obligations. By the first we

gave to France the liberty of our ports for her armed vessels,

privateers, and prizes, and prohibited all other powers from

the enjoyment of the same privilege; and France gave to us the

liberty of her ports for our armed vessels, privateers, and

prizes, and guarded the privilege by the same prohibition to

other powers; and by the second we guaranteed to France, for

ever, her possessions in America, and France guaranteed to us,

for ever, 'our liberty, sovereignty, and independence, absolute

and unlimited, as well in matters of government as commerce.'

Such were the obligations in their original inception. Will

it be contended that they were not mutual, reciprocal, and

equal, and that, in each instance, the one did not form the

consideration for the other? Surely no one will take this ground.

"If, then, said Mr. W., the obligations imposed upon each

government by these articles of the respective treaties were

mutual, reciprocal, and equal, when undertaken, they must have

remained equal until abrogated by war, or changed by treaty

stipulation. No treaty, subsequent to those which contain the

obligations, had affected them in any manner whatever. If, as

he had attempted to show, war had existed from July, 1778, to

1800, that would not have rendered the obligations unequal,

but would have abrogated them altogether. If, as the friends

of the bill contend, there had been no war, and the treaties

were in full force up to the signing of the convention of the

30th of September, 1800, what was the effect of that treaty,

as originally signed by the negotiators, upon these mutual,

reciprocal, and equal obligations? The second original article

of that treaty will answer. It did not attempt to disturb their

mutuality, reciprocity, or equality, but suspended them as they

were, past, present, or future, and made all the subject of

future negotiation 'at a convenient time.'

"But, Mr. W. said, the Senate of the United States expunged

this article of the treaty of 1800, and refused to advise and

consent to ratify it as a part of the treaty; and hence it was

contended the United States had discharged themselves from

the 'onerous obligations' of these articles in the respective

treaties, and had, by that act, incurred, to the claimants

under this bill, the heavy liability which it recognizes. If

the expunging of that article discharged the United States from

obligations thus onerous, did it not discharge France from

the fellow obligations? Was not the discharge, made in that

manner, as mutual, reciprocal, and equal, as the obligations

in their inception, and in all their subsequent stages up to

that act? How, then, could it be contended that the discharge

of the one was not a full and adequate consideration for the

discharge of the other? Nothing upon the face of the treaties

authorized the introduction of this inequality at this step

in the official proceedings. Nothing in the record of the

proceedings of the Senate, when acting upon the article,

indicates that they intended to pay five millions of dollars to

render this mutual release equal between the two powers. The

obligations and responsibilities were reserved as subjects of

future negotiation, upon terms of equality, and the striking out

of that reservation was but a mutual and reciprocal and equal

release from the obligation further to negotiate. This much for

the reciprocity of these obligations as derived from the action

of the sovereign powers themselves.

"What was to be learned from the action of their respective

negotiators? He did not doubt but that attempts had been

made on the part of France to exhibit an inequality in the

obligations under the treaty, and to set up that inequality

against the claims of our citizens; but had our negotiators

ever admitted the inequality to exist, or ever attempted to

compromise the rights of the claimants under this bill for

such a consideration? He could not find that they had. He did

not hear it contended that they had: and, from the evidence of

their acts, remaining upon record, as a part of the diplomatic

correspondence of the period, he could not suppose they had ever

entertained the idea. He had said that the American negotiators

had always treated these obligations as mutual, reciprocal, and

equal; and he now proposed to read to the Senate a part of a

letter from Messrs. Ellsworth, Davie, and Murray, addressed to

the French negotiators, and containing the project of a treaty,

to justify his assertion. The letter was dated 20th August,

1800, and it would be recollected that its authors were the

negotiators, on the part of the United States, of the treaty of

the 30th of September, 1800. The extract is as follows:

"'1. Let it be declared that the former treaties are renewed

and confirmed, and shall have the same effect as if no

misunderstanding between the two powers had intervened, except

so far as they are derogated from by the present treaty.

"'2. It shall be optional with either party to pay to the

other, within seven years, three millions of francs, in money

or securities which may be issued for indemnities, and thereby

to reduce the rights of the other as to privateers and prizes,

to those of the most favored nation, And during the said term

allowed for option, the right of both parties shall be limited

by the line of the most favored nation.

"'3. The mutual guaranty in the treaty of alliance shall be so

specified and limited, that its future obligation shall be, on

the part of France, when the United States shall be attacked,

to furnish and deliver at her own ports military stores to

the amount of one million of francs; and, on the part of the

United States, when the French possessions in America, in any

future war, shall be attacked, to furnish and deliver at their

own ports a like amount in provisions. It shall, moreover, be

optional for either party to exonerate itself wholly of its

obligation, by paying to the other, within seven years, a gross

sum of five millions of francs, in money or such securities as

may be issued for indemnities.'

"Mr. W. asked if he needed further proofs that not only the

American government, but the American negotiators, treated

these obligations under the treaty as, in all respects, mutual,

reciprocal, and equal; and if the fallacy of the argument

that the United States had obtained to itself a valuable

consideration for the release of these private claims in the

release of itself from these obligations, was not utterly and

entirely disproved by these facts? Was not the release of the

obligations on the one side the release of them on the other?

And was not the one release the necessary consideration for the

other? How, then, could it be said, with any justice, that we

sought our release at the expense of the claimants? There was no

reasonable ground for such an allegation, either from the acts

of our government or of our negotiators. When the latter fixed

a value upon our obligations as to the privateers and prizes,

and as to the guaranty, in the same article they fixed the same

price, to a franc, upon the reciprocal obligations of France;

and when the former discharged our liability, by expunging the

second article of the treaty of 1800, the same act discharged

the corresponding liability of the French government.

"Here, then, Mr. W. said, must end all pretence of a valuable

consideration for these claims passing to the United States from

this source. The onerous obligations were mutual, reciprocal,

and equal, and the respective releases were mutual, reciprocal,

and equal, and simultaneous, and nothing could be fairly drawn

from the act which operated these mutual releases to benefit

these claimants.

"Mr. W. said he was, then, necessarily brought back to the

proposition with which he started in the commencement of his

argument, that, if the United States were liable to pay these

claimants, that liability must rest upon the broad ground of

a failure by the government, after ordinary, and, in this

instance, extraordinary efforts to collect the money. The idea

of a release of the claims for a valuable consideration passing

to the government had been exploded, and, if a liability was to

be claimed on account of a failure to collect the money, upon

what ground did it rest? What had the government done to protect

the rights of these claimants? It had negotiated from 1793 to

1798, with a vigilance and zeal and talent almost unprecedented

in the history of diplomacy. It had sent to France minister

after minister, and, upon several occasions, extraordinary

missions composed of several individuals. Between 1798 and 1800,

it had equipped fleets and armies, expended millions in warlike

preparation, and finally sent forth its citizens to battle and

death, to force the payment of the claims. Were we now to be

told, that our failure in these efforts had created a liability

against us to pay the money? That the same citizens who had been

taxed to pay the expenses of these long negotiations, and of

this war for the claims, were to be further taxed to pay such of

the claims as we had failed to collect? He could never consent

to such a deduction from such premises.

"But, Mr. President, said Mr. W., there is another view of

this subject, placed upon this basis, which renders this bill

of trifling importance in the comparison. If the failure to

collect these claims has created the liability to pay them,

that liability goes to the extent of the claims proved, and the

interest upon them, not to a partial, and perhaps trifling,

dividend. Who, then, would undertake to say what amount of

claims might not be proved during the state of things he had

described, from the breaking out of the war between France and

England, in 1793, to the execution of the treaty, in 1800? For

a great portion of the period, the municipal regulations of

France required the captured cargoes to be not confiscated, but

paid for at the market value at the port to which the vessel was

destined. Still the capture would be proved, the value of the

cargo ascertained, before the commission which the bill proposes

to establish; and who would adduce the proof that the same cargo

was paid for by the French government?

"This principle, however, Mr. W. said, went much further than

the whole subject of the old French claims. It extended to all

claims for spoliations upon our commerce, since the existence of

the government, which we had failed to collect. Who could say

where the liability would end? In how many cases had claims of

this character been settled by treaty, what had been collected

in each case, and what amount remained unpaid, after the release

of the foreign government? He had made an unsuccessful effort

to answer these inquiries, so far as the files of the state

department would furnish the information, as he had found that

it could only be collected by an examination of each individual

claim; and this would impose a labor upon the department of

an unreasonable character, and would occupy more time than

remained to furnish the information for his use upon the present

occasion. He had, however, been favored by the Secretary of

State with the amounts allowed by the commissioners, the

amounts paid, and the rate of pay upon the principal, in two

recent cases, the Florida treaty, and the treaty with Denmark.

In the former instance, the payment was ninety-one and two

thirds per centum upon the principal, while in the latter it

was but thirty-one and one eighth per centum. Assume that these

two cases are the maximum and minimum of all the cases where

releases have been given for partial payments; and he begged the

Senate to reflect upon the amounts unpaid which might be called

from the national treasury, if the principle were once admitted

that a failure to collect creates a liability to pay.

"That in his assumption that a liability of this sort must go

to the whole amount of the claims, he only took the ground

contended for by the friends of this bill, he would trouble the

Senate with another extract from the report of Mr. Livingston,

from which he had before read. In speaking of the amount which

should be appropriated, Mr. Livingston says:

"'The only remaining inquiry is the amount; and on this point

the committee have had some difficulty. Two modes of measuring

the compensation suggested themselves:

"'1. The actual loss sustained by the petitioners.

"'2. The value of the advantages received, as the consideration,

by the United States.

"'The first is the one demanded by strict justice; and is the

only one that satisfies the word used by the constitution,

which requires just compensation, which cannot be said to have

been made when any thing less than the full value is given.

But there were difficulties which appeared insurmountable, to

the adoption of this rule at the present day, arising from the

multiplicity of the claims, the nature of the depredations which

occasioned them, the loss of documents, either by the lapse of

time, or the wilful destruction of them by the depredators. The

committee, therefore, could not undertake to provide a specific

relief for each of the petitioners. But they have recommended

the institution of a board, to enter into the investigation,

and apportion a sum which the committee have recommended to be

appropriated, _pro rata_, among the several claimants.'

"'The committee could not believe that the amount of

compensation to the sufferers should be calculated by the

advantages secured to the United States, because it was not,

according to their ideas, the true measure. If the property

of an individual be taken for public use, and the government

miscalculate, and find that the object to which they have

applied it has been injurious rather than beneficial, the

value of the property is still due to the owner, who ought not

to suffer for the false speculations which have been made. A

turnpike or canal may be very unproductive; but the owner of the

land which has been taken for its construction is not the less

entitled to its value. On the other hand, he can have no manner

of right to more than the value of his property, be the object

to which it has been applied ever so beneficial.'

"Here, Mr. W. said, were two proposed grounds of estimating the

extent of the liability of the government to the claimants; and

that which graduated it by the value received by the government

was distinctly rejected, while that making the amount of the

claims the measure of liability, was as distinctly asserted

to be the true and just standard. He hoped he had shown, to

the satisfaction of the Senate, that the former rule of value

received by the government would allow the claimants nothing

at all, while he was compelled to say that, upon the broad

principle that a failure to collect creates a liability to

pay, he could not controvert the correctness of the conclusion

that the liability must be commensurate with the claim. He

could controvert, he thought, successfully, the principle,

but he could not the measure of damages when the principle was

conceded. He would here conclude his remarks upon the points

he had noticed, by the earnest declaration that he believed

the passage of this bill would open more widely the doors of

the public treasury than any legislation of which he had any

knowledge, or to which Congress had ever yielded its assent.

"Mr. W. said he had a few observations to offer relative to the

mode of legislation proposed, and to the details of the bill,

and he would trouble the Senate no further.

"His first objection, under this head, was to the mode of

legislation. If the government be liable to pay these claims,

the claimants are citizens of the country, and Congress is

as accessible to them as to other claimants who have demands

against the treasury. Why were they not permitted, individually,

to apply to Congress to establish their respective claims, as

other claimants were bound to do, and to receive such relief, in

each case, as Congress, in its wisdom, should see fit to grant?

Why were these claims, more than others, grouped together,

and attempted to be made a matter of national importance?

Why was a commission to be established to ascertain their

validity, a duty in ordinary cases discharged by Congress

itself? Were the Senate sure that much of the importance given

to those claims had not proceeded from this association, and

from the formidable amount thus presented at one view? Would

any gentleman be able to convince himself that, acting upon

a single claim in this immense mass, he should have given it

his favorable consideration? For his part, he considered the

mode of legislation unusual and objectionable. His principal

objections to the details were, that the second section of the

bill prescribed the rules which should govern the commission

in deciding upon the claims, among which 'the former treaties

between the United States and France' were enumerated; and that

the bill contained no declaration that the payments made under

it were in full of the claims, or that the respective claimants

should execute a release, as a condition of receiving their

dividends.

"The first objection was predicated upon the fact that the bill

covered the whole period from the making of the treaties of

1778, to that of the 30th September, 1800, and made the former

treaties the rule of adjudication, when Congress on the 7th

July, 1798, by a deliberate legislative act, declared those

treaties void, and no longer binding upon the United States or

their citizens. It is a fact abundantly proved by the documents,

that a large portion of the claims now to be paid, arose within

the period last alluded to; and that treaties declared to be

void should be made the law in determining what were and what

were not illegal captures, during the time that they were held

to have no force, and when our citizens were authorized by

law to go upon the high seas, regardless of their provisions,

Mr. W. said, would seem to him to be an absurdity which the

Senate would not legalize. He was fully aware that the first

section of the bill purported to provide for 'valid claims to

indemnity upon the French government, arising out of illegal

captures, detentions, forcible seizures, illegal condemnations,

and confiscations;' but it could not be overlooked that illegal

captures, condemnations, and confiscations, must relate entirely

to the law which was to govern the adjudication; and if that

law was a void treaty which the claimants were not bound to

observe, and did not observe, was it not more than possible that

a capture, condemnation, or confiscation, might, by compulsion,

be adjudged illegal under the rule fixed by the bill, while that

same capture, condemnation, or confiscation, was strictly legal

under the laws which governed the commerce of the claimant when

the capture was made? He must say that it appeared clear to his

mind that the rule of adjudication upon the validity of claims

of this description, should, in all cases, be the same rule

which governed the commerce out of which the claims have arisen.

"His second objection, Mr. W. said, was made more as a wish

that a record of the intentions of the present Congress should

be preserved upon the face of the bill, than from any idea that

the provision suggested would afford the least protection to the

public treasury. Every day's legislation showed the futility of

the insertion in an act of Congress of a declaration that the

appropriation made should be in full of a claim; and in this, as

in other like cases, should this bill pass, he did not expect

that it would be, in practice, any thing more than an instalment

upon the claims which would be sustained before the commission.

The files of the state department would contain the record

evidence of the balance, with the admission of the government,

in the passage of this bill, that an equal liability remained

to pay that balance, whatever it might be. Even a release from

the respective claimants he should consider as likely to have

no other effect than to change their future applications from

a demand of legal right, which they now assume to have, to one

of equity and favor; and he was yet to see that the latter

would not be as successful as the former. He must give his vote

against the bill, whether modified in that particular or not,

and he should do so under the most full and clear conviction,

that it was a proposition fraught with greater dangers to the

public treasury, than any law which had ever yet received the

assent of Congress."

Thirty Years' View (Vol. 1 of 2) or, A History of the Working of the American Government for Thirty Years, from 1820 to 1850 · 第 118 / 166 章