FRENCH SPOLIATIONS--MR. WEBSTER'S SPEECH.
"The question, sir, involved in this case, is essentially a
judicial question. It is not a question of public policy, but a
question of private right; a question between the government and
the petitioners: and, as the government is to be judge in its
own case, it would seem to be the duty of its members to examine
the subject with the most scrupulous good faith, and the most
solicitous desire to do justice.
"There is a propriety in commencing the examination of these
claims in the Senate, because it was the Senate which, by its
amendment of the treaty of 1800, and its subsequent ratification
of that treaty, and its recognition of the declaration of the
French government, effectually released the claims as against
France, and for ever cut off the petitioners from all hopes of
redress from that quarter. The claims, as claims against our own
government, have their foundation in these acts of the Senate
itself; and it may certainly be expected that the Senate will
consider the effects of its own proceedings, on private rights
and private interests, with that candor and justice which belong
to its high character.
"It ought not to be objected to these petitioners, that their
claim is old, or that they are now reviving any thing which has
heretofore been abandoned. There has been no delay which is not
reasonably accounted for. The treaty by which the claimants say
their claims on France for these captures and confiscations were
released was concluded in 1800. They immediately applied to
Congress for indemnity, as will be seen by the report made in
1802, in the House of Representatives, by a committee of which a
distinguished member from Virginia, not now living [Mr. Giles],
was chairman.
"In 1807, on the petition of sundry merchants and others,
citizens of Charleston, in South Carolina, a committee of the
House of Representatives, of which Mr. Marion, of that State,
was chairman, made a report, declaring that the committee was of
opinion that the government of the United States was bound to
indemnify the claimants. But at this time our affairs with the
European powers at war had become exceedingly embarrassed; our
government had felt itself compelled to withdraw our commerce
from the ocean; and it was not until after the conclusion of the
war of 1812, and after the general pacification of Europe, that
a suitable opportunity occurred of presenting the subject again
to the serious consideration of Congress. From that time the
petitioners have been constantly before us, and the period has
at length arrived proper for a final decision of their case.
"Another objection, sir, has been urged against these claims,
well calculated to diminish the favor with which they might
otherwise be received, and which is without any substantial
foundation in fact. It is, that a great portion of them has been
bought up, as a matter of speculation, and it is now holden by
these purchasers. It has even been said, I think, on the floor
of the Senate, that nine tenths, or ninety hundredths, of all
the claims are owned by speculators.
"Such unfounded statements are not only wholly unjust towards
these petitioners themselves, but they do great mischief to
other interests. I have observed that a French gentleman of
distinction, formerly a resident in this country, is represented
in the public newspapers as having declined the offer of a seat
in the French administration, on the ground that he could not
support the American treaty; and he could not support the treaty
because he had learned, or heard, while in America, that the
claims were no longer the property of the original sufferers,
but had passed into unworthy hands. If any such thing has
been learned in the United States, it has been learned from
sources entirely incorrect. The general fact is not so; and
this prejudice, thus operating on a great national interest--an
interest in regard to which we are in danger of being seriously
embroiled with a foreign state--was created, doubtless, by the
same incorrect and unfounded assertions which have been made
relative to this other class of claims.
"In regard to both classes, and to all classes of claims of
American citizens on foreign governments, the statement is at
variance with the facts. Those who make it have no proof of
it. On the contrary, incontrovertible evidence exists of the
truth of the very reverse of this statement. The claims against
France, since 1800, are now in the course of adjudication. They
are all, or very nearly all, presented to the proper tribunal.
Proofs accompany them, and the rules of the tribunal require
that, in each case, the true ownership should be fully and
exactly set out, on oath; and be proved by the papers, vouchers,
and other evidence. Now, sir, if any man is acquainted, or will
make himself acquainted, with the proceedings of this tribunal,
so far as to see who are the parties claiming the indemnity, he
will see the absolute and enormous error of those who represent
these claims to be owned, in great part, by speculators.
"The truth is, sir, that these claims, as well those since
1800 as before, are owned and possessed by the original
sufferers, with such changes only as happen in regard to all
other property. The original owner of ship and cargo; his
representative, where such owner is dead; underwriters who
have paid losses on account of captures and confiscations; and
creditors of insolvents and bankrupts who were interested in
the claims--these are the descriptions of persons who, in all
these cases, own vastly the larger portion of the claims. This
is true of the claims on Spain, as is most manifest from the
proceedings of the commissioners under the Spanish treaty.
It is true of the claims on France arising since 1800, as is
equally manifest by the proceedings of the commissioners now
sitting; and it is equally true of the claims which are the
subject of this discussion, and provided for in this bill. In
some instances claims have been assigned from one to another, in
the settlement of family affairs. They have been transferred,
in other instances, to secure or to pay debts; they have
been transferred, sometimes, in the settlement of insurance
accounts; and it is probable there are a few cases in which the
necessities of the holders have compelled them to sell them. But
nothing can be further from the truth than that they have been
the general subjects of purchase and sale, and that they are
now holden mainly by purchasers from the original owners. They
have been compared to the unfunded debt. But that consisted in
scrip, of fixed amount, and which passed from hand to hand by
delivery. These claims cannot so pass from hand to hand. In each
case, not only the value but the amount is uncertain. Whether
there be any claim, is in each case a matter for investigation
and proof; and so is the amount, when the justice of the claim
itself is established. These circumstances are of themselves
quite sufficient to prevent the easy and frequent transfer of
the claims from hand to hand. They would lead us to expect
that to happen which actually has happened; and that is, that
the claims remain with their original owners, and their legal
heirs and representatives, with such exceptions as I have
already mentioned. As to the portion of the claims now owned by
underwriters, it can hardly be necessary to say that they stand
on the same equity and justice as if possessed and presented by
the owners of ships and goods. There is no more universal maxim
of law and justice, throughout the civilized and commercial
world, than that an underwriter, who has paid a loss on ships
or merchandise to the owner, is entitled to whatever may be
received from the property. His right accrues by the very act
of payment; and if the property, or its proceeds, be afterwards
recovered, in whole or in part, whether the recovery be from the
sea, from captors, or from the justice of foreign states, such
recovery is for the benefit of the underwriter. Any attempt,
therefore, to prejudice these claims, on the ground that many of
them belong to insurance companies, or other underwriters, is at
war with the first principles of justice.
"A short, but accurate, general view of the history and
character of these claims is presented in the report of the
Secretary of State, on the 20th of May, 1826, in compliance
with a resolution of the Senate. Allow me, sir, to read the
paragraphs:
"'The Secretary can hardly suppose it to have been the intention
of the resolution to require the expression of an argumentative
opinion as to the degree of responsibility to the American
sufferers from French spoliations, which the convention of 1800
extinguished, on the part of France, or devolved on the United
States, the Senate itself being most competent to decide that
question. Under this impression, he hopes that he will have
sufficiently conformed to the purposes of the Senate, by a brief
statement, prepared in a hurried moment, of what he understands
to be the question.
"'The second article of the convention of 1800 was in the
following words: "The ministers plenipotentiary of the two
parties, not being able to agree, at present, respecting the
treaty of alliance of the 6th of February, 1778, the treaty
of amity and commerce of the same date, and the convention of
the 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."
"'When that convention was laid before the Senate, it gave its
consent and advice that it should be ratified, provided that
the second article be expunged, and that the following article
be added or inserted: "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;" and it was accordingly so
ratified by the President of the United States, on the 18th day
of February, 1801. On the 31st of July of the same year, it was
ratified by Bonaparte, First Consul of the French Republic, who
incorporated in the instrument of his ratification the following
clause as part of it: "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, importing 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."
"'The French ratification being thus conditional, was,
nevertheless, exchanged against that of the United States, at
Paris, on the same 31st of July. The President of the United
States considering it necessary again to submit the convention,
in this state, to the Senate, on the 19th day of December, 1801,
it was resolved by the Senate that they considered the said
convention as fully ratified, and returned it to the President
for the usual promulgation. It was accordingly promulgated, and
thereafter regarded as a valid and binding compact. The two
contracting parties thus agreed, by the retrenchment of the
second article, mutually to renounce the respective pretensions
which were the object of that article. The pretensions of the
United States, to which allusion is thus made, arose out of the
spoliations under color of French authority, in contravention
of law and existing treaties. Those of France sprung from the
treaty of alliance of the 6th of 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 these 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
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. The amount of the
indemnities due to the citizens of the United States was very
large; and, on the other hand, the obligation was great (to
specify no other French pretensions), under which the United
States were placed, in the eleventh article of the treaty of
alliance of the 6th of February, 1778, by which they were bound
for ever to guarantee from that time the then possessions of
the Crown of France in America, as well as those which it might
acquire by the future treaty of peace with Great Britain; all
these possessions having been, it is believed, conquered at,
or not long after, the exchange of the ratifications of the
convention of September, 1800, by the arms of Great Britain,
from France.
"'The fifth article of the amendments to the constitution
provides: "Nor shall private property be taken for public use,
without just compensation." If the indemnities to which citizens
of the United States were entitled for French spoliations prior
to the 30th of September, 1800, have been appropriated to
absolve the United States from the fulfilment of an obligation
which they had contracted, or from the payment of indemnities
which they were bound to make to France, the Senate is most
competent to determine how far such an appropriation is 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. The Senate is also
best able to estimate the probability which existed of an
ultimate recovery from France of the amount due for those
indemnities, if they had not been renounced; in making which
estimate, it will, no doubt, give just weight to the painful
consideration that repeated and urgent appeals have been, in
vain, made to the justice of France for satisfaction of flagrant
wrongs committed upon property of other citizens of the United
States, subsequent to the period of the 30th of September, 1800.'
"Before the interference of our government with these claims,
they constituted just demands against the government of
France. They were not vague expectations of possible future
indemnity for injuries received, too uncertain to be regarded
as valuable, or be esteemed property. They were just demands,
and, as such, they were property. The courts of law took notice
of them as property. They were capable of being devised, of
being distributed among heirs and next of kin, and of being
transferred and assigned, like other legal and just debts. A
claim or demand for a ship unjustly seized and confiscated
is property, as clearly as the ship itself. It may not be so
valuable, or so certain; but it is as clear a right, and has
been uniformly so regarded by the courts of law. The papers show
that American citizens had claims against the French government
for six hundred and fifteen vessels unlawfully seized and
confiscated. If this were so, it is difficult to see how the
government of the United States can release these claims for
its own benefit, with any more propriety than it could have
applied the money to its own use, if the French government had
been ready to make compensation, in money, for the property thus
illegally seized and confiscated; or how the government could
appropriate to itself the just claims which the owners of these
six hundred and fifteen vessels held against the wrong-doers,
without making compensation, any more than it could appropriate
to itself, without making compensation, six hundred and fifteen
ships which had not been seized. I do not mean to say that the
rate of compensation should be the same in both cases; I do
not mean to say that a claim for a ship is of as much value as
a ship; but I mean to say that both the one and the other are
property, and that government cannot, with justice, deprive
a man of either, for its own benefit, without making a fair
compensation.
"It will be perceived at once, sir, that these claims do not
rest on the ground of any neglect or omission, on the part of
the government of the United States, in demanding satisfaction
from France. That is not the ground. The government of the
United States, in that respect, performed its full duty. It
remonstrated against these illegal seizures; it insisted on
redress; it sent two special missions to France, charged
expressly, among other duties, with the duty of demanding
indemnity. But France had her subjects of complaint, also,
against the government of the United States, which she pressed
with equal earnestness and confidence, and which she would
neither postpone nor relinquish, except on the condition that
the United States would postpone or relinquish these claims. And
to meet this condition, and to restore harmony between the two
nations, the United States did agree, first to postpone, and
afterwards to relinquish, these claims of its own citizens. In
other words, the government of the United States bought off the
claims of France against itself, by discharging claims of our
own citizens against France.
"This, sir, is the ground on which these citizens think they
have a claim for reasonable indemnity against their own
government. And now, sir, before proceeding to the disputed
part of the case, permit me to state what is admitted.
"In the first place, then, it is universally admitted that these
petitioners once had just claims against the government of
France, on account of these illegal captures and condemnations.
"In the next place, it is admitted that these claims no longer
exist against France; that they have, in some way, been
extinguished or released, as to her; and that she is for ever
discharged from all duty of paying or satisfying them, in whole
or in part.
"These two points being admitted, it is then necessary, in order
to support the present bill, to maintain four propositions:
"1. That these claims subsisted against France up to the time
of the treaty of September, 1800, between France and the United
States.
"2. That they were released, surrendered, or extinguished by
that treaty, its amendment in the Senate, and the manner of its
final ratification.
"3. That they were thus released, surrendered, or extinguished,
for political and national considerations, for objects and
purposes deemed important to the United States, but in which
these claimants had no more interest than any other citizens.
"4. That the amount or measure of indemnity proposed by this
bill is no more than a fair and reasonable compensation, so far
as we can judge by what has been done in similar cases.
"1. Were these subsisting claims against France up to the time
of the treaty? It is a conclusive answer to this question, to
say that the government of the United States insisted that they
did exist, up to the time of the treaty, and demanded indemnity
for them, and that the French government fully admitted their
existence, and acknowledged its obligation to make such
indemnity.
"The negotiation, which terminated in the treaty, was opened by
a direct proposition for indemnity, made by our ministers, the
justice and propriety of which was immediately acceded to by the
ministers of France.
"On the 7th of April, 1800, in their first letter to the
ministers of France, Messrs. Ellsworth, Davie, and Murray, say:
"'Citizen ministers:--The undersigned, appreciating the value
of time, and wishing by frankness to evince their sincerity,
enter directly upon the great object of their mission--an object
which they believe may be best obtained by avoiding to retrace
minutely the too well-known and too painful incidents which have
rendered a negotiation necessary.
"'To satisfy the demands of justice, and render a reconciliation
cordial and permanent, they propose an arrangement, such
as shall be compatible with national honor and existing
circumstances, 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. The way being thus
prepared, the undersigned will be at liberty to stipulate for
that reciprocity and freedom of commercial intercourse between
the two countries which must essentially contribute to their
mutual advantage.
"'Should this general view of the subject be approved by the
ministers plenipotentiary to whom it is addressed, the details,
it is presumed, may be easily adjusted, and that confidence
restored which ought never to have been shaken.'
"To this letter the French ministers immediately returned the
following answer:
"'The ministers plenipotentiary of the French Republic have read
attentively the proposition for a plan of negotiation which was
communicated to them by the envoys extraordinary and ministers
plenipotentiary of the United States of America.
"'They think 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. And that the second object is to assure the execution
of treaties of friendship and commerce made between the two
nations, and the accomplishment of the views of reciprocal
advantages which suggested them.'
"It is certain, therefore, that the negotiation commenced in the
recognition, by both parties, of the existence of individual
claims, and of the justice of making satisfaction for them; and
it is equally clear that, throughout the whole negotiation,
neither party suggested that these claims had already been
either satisfied or extinguished; and it is indisputable that
the treaty itself, in the second article, expressly admitted
their existence, and solemly recognized the duty of providing
for them at some future period.
"It will be observed, sir, that the French negotiators, in
their first letter, while they admit the justice of providing
indemnity for individual claims, bring forward, also, claims
arising under treaties; taking care, thus early, to advance
the pretensions of France on account of alleged violations by
the United States of the treaties of 1778. On that part of the
case, I shall say something hereafter; but I use this first
letter of the French ministers at present only to show that,
from the first, the French government admitted its obligation to
indemnify individuals who had suffered wrongs and injuries.
"The honorable member from New-York [Mr. Wright] contends, sir,
that, at the time of concluding the treaty, these claims had
ceased to exist. He says that a war had taken place between the
United States and France, and by the war the claims had become
extinguished. I differ from the honorable member, both as to the
fact of war, and as to the consequences to be deduced from it,
in this case, even if public war had existed. If we admit, for
argument sake, that war had existed, yet we find that, on the
restoration of amity, both parties admit the justice of these
claims and their continued existence, and the party against
which they are preferred acknowledges her obligation, and
expresses her willingness to pay them. The mere fact of war can
never extinguish any claim. If, indeed, claims for indemnity be
the professed ground of a war, and peace be afterwards concluded
without obtaining any acknowledgment of the right, such a peace
may be construed to be a relinquishment of the right, on the
ground that the question has been put to the arbitration of the
sword, and decided. But, if a war be waged to enforce a disputed
claim, and it be carried on till the adverse party admit the
claim, and agree to provide for its payment, it would be
strange, indeed, to hold that the claim itself was extinguished
by the very war which had compelled its express recognition.
Now, whatever we call that state of things which existed between
the United States and France from 1798 to 1800, it is evident
that neither party contended or supposed that it had been such
a state of things as had extinguished individual claims for
indemnity for illegal seizures and confiscations.
"The honorable member, sir, to sustain his point, must prove
that the United States went to war to vindicate these claims;
that they waged that war unsuccessfully; and that they were
therefore glad to make peace, without obtaining payment of the
claims, or any admission of their justice. I am happy, sir, to
say that, in my opinion, facts do not authorize any such record
to be made up against the United States. I think it is clear,
sir, that whatever misunderstanding existed between the United
States and France, it did not amount, at any time, to open and
public war. It is certain that the amicable relations of the two
countries were much disturbed; it is certain that the United
States authorized armed resistance to French captures, and the
captures of French vessels of war found hovering on our coast;
but it is certain, also, not only that there was no declaration
of war, on either side, but that the United States, under all
their provocations, did never authorize general reprisals on
French commerce. At the very moment when the gentleman says war
raged between the United States and France, French citizens
came into our courts, in their own names, claimed restitution
for property seized by American cruisers, and obtained decrees
of restitution. They claimed as citizens of France and obtained
restoration, in our courts, as citizens of France. It must have
been a singular war, sir, in which such proceedings could take
place. Upon a fair view of the whole matter, Mr. President, it
will be found, I think, that every thing done by the United
States was defensive. No part of it was ever retaliatory. The
United States do not take justice into their own hands.
"The strongest measure, perhaps, adopted by Congress, was the
act of May 28, 1798. The honorable member from New-York has
referred to this act, and chiefly relies upon it, to prove the
existence, or the commencement, of actual war. But does it prove
either the one or the other?
"It is not an act declaring war; it is not an act authorizing
reprisals; it is not an act which, in any way, acknowledges the
actual existence of war. Its whole implication and import is the
other way. Its title is, 'An act more effectually to protect the
commerce and coasts of the United States.'
"This is its preamble:
"'Whereas 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, in violation of the law of nations,
and treaties between the United States and the French nation:
therefore'--
"And then follows its only section, in these words:
"'SEC. 1. _Be it enacted, &c._, That it shall be lawful for the
President of the United States, and he is hereby authorized,
to instruct and direct the commanders of the armed vessels
belonging to the United States, to seize, take, and bring into
any port of the United States, to be proceeded against according
to the laws of nations, any such armed vessel 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 also retake any
ship or vessel, of any citizen or citizens of the United States,
which may have been captured by any such armed vessel.'
"This act, it is true, authorized the use of force, under
certain circumstances, and for certain objects, against French
vessels. But there may be acts of authorized force, there may be
assaults, there may be battles, there may be captures of ships
and imprisonment of persons, and yet no general war. Cases of
this kind may occur under that practice of retortion which is
justified, when adopted for just cause, by the laws and usages
of nations, and which all the writers distinguish from general
war.
"The first provision in this law is purely preventive and
defensive; and the other hardly goes beyond it. Armed vessels
hovering on our coast, and capturing our vessels, under
authority, or pretence of authority, from a foreign state,
might be captured and brought in, and vessels already seized
by them retaken. The act is limited to armed vessels; but why
was this, if general war existed? Why was not the naval power
of the country let loose at once, if there were war, against
the commerce of the enemy? The cruisers of France were preying
on our commerce; if there was war, why were we restrained from
general reprisals on her commerce? This restraining of the
operation of our naval marine to armed vessels of France, and to
such of them only as should be found hovering on our coast, for
the purpose of committing depredations on our commerce, instead
of proving a state of war, proves, I think, irresistibly, that
a state of general war did not exist. But even if this act of
Congress left the matter doubtful, other acts passed at and
near the same time demonstrate the understanding of Congress
to have been, that although the relations between the two
countries were greatly disturbed, yet that war did not exist. On
the same day (May 28, 1798) in which this act passed, on which
the member from New-York lays so much stress, as proving the
actual existence of war with France, Congress passed another
act, entitled 'An act authorizing the President of the United
States to raise a provisional army;' and the first section
declared that the President should be authorized, '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, to cause to be enlisted,' &c., ten
thousand men.
"On the 16th of July following, Congress passed the law for
augmenting the army, the second section of which authorized the
President to raise twelve additional regiments of infantry, and
six troops of light dragoons, 'to be enlisted for and during
the continuance of the existing differences between the United
States and the French Republic, unless sooner discharged,' &c.
"The following spring, by the act of the 2d of March, 1799,
entitled 'An act giving eventual authority to the President of
the United States to augment the army,' Congress provided that
it should be lawful for the President of the United States,
in case war should break out between the United States and a
foreign European power, &c., to raise twenty-four regiments of
infantry, &c. And in the act for better organizing the army,
passed the next day, Congress repeats the declaration, contained
in a former act, that certain provisions shall not take effect
unless war shall break out between the United States and some
European prince, potentate, or state.
"On the 20th of February, 1800, an act was passed to suspend
the act for augmenting the army; and this last act declared
that further enlistments should be suspended until the further
order of Congress, unless in the recess of Congress and during
the continuance of the existing differences between the United
States and the French Republic, war should break out between the
United States and the French Republic, or imminent danger of
an invasion of their territory by the said Republic should be
discovered.
"On the 14th of May, 1800, four months before the conclusion of
the treaty, Congress passed an act authorizing the suspension
of military appointments, and the discharge of troops under the
provisions of the previous laws. No commentary is necessary,
sir, on the texts of these statutes, to show that Congress never
recognized the existence of war between the United States and
France. They apprehended war might break out; and they made
suitable provision for that exigency, should it occur; but it is
quite impossible to reconcile the express and so often repeated
declarations of these statutes, commencing in 1798, running
through 1799, and ending in 1800, with the actual existence of
war between the two countries at any period within those years.
"The honorable member's second principal source of argument,
to make out the fact of a state of war, is the several
non-intercourse acts. And here again it seems to me an exactly
opposite inference is the true one. In 1798, 1799, and 1800,
acts of Congress were passed suspending the commercial
intercourse between the United States, each for one year. Did
any government ever pass a law of temporary non-intercourse
with a public enemy? Such a law would be little less than an
absurdity. War itself effectually creates non-intercourse.
It renders all trade with the enemy illegal, and, of course,
subjects all vessels found so engaged, with their cargoes, to
capture and condemnation as enemy's property. The first of these
laws was passed June 13, 1798, the last, February 27, 1800.
Will the honorable member from New-York tell us when the war
commenced? When did it break out? When did those 'differences,'
of which the acts of Congress speak, assume a character of
general hostility? Was there a state of war on the 13th of June,
1798, when Congress passed the first non-intercourse act; and
did Congress, in a state of public war, limit non-intercourse
with the enemy to one year? Or was there a state of peace in
June, 1798? and, if so, I ask again, at what time after that
period, and before September, 1800, did the war break out?
Difficulties of no small magnitude surround the gentleman, I
think, whatever course he takes through these statutes, while
he attempts to prove from them a state of war. The truth
is, they prove, incontestably, a state of peace; a state of
endangered, disturbed, agitated peace; but still a state of
peace. Finding themselves in a state of great misunderstanding
and contention with France, and seeing our commerce a daily
prey to the rapacity of her cruisers, the United States
preferred non-intercourse to war. This is the ground of the
non-intercourse acts. Apprehending, nevertheless, that war might
break out, Congress made prudent provision for it by augmenting
the military force of the country. This is the ground of the
laws for raising a provisional army. The entire provisions of
all these laws necessarily suppose an existing state of peace;
but they imply also an apprehension that war might commence. For
a state of actual war they were all unsuited; and some of them
would have been, in such a state, preposterous and absurd. To a
state of present peace, but disturbed, interrupted, and likely
to terminate in open hostilities, they were all perfectly well
adapted. And as many of these acts, in express terms, speak of
war as not actually existing, but as likely or liable to break
out, it is clear, beyond all reasonable question, that Congress
never, at any time, regarded the state of things existing
between the United States and France as being a state of war.
"As little did the executive government so regard it, as must be
apparent from the instructions given to our ministers, when the
mission was sent to France. Those instructions, having recurred
to the numerous acts of wrong committed on the commerce of the
United States, and the refusal of indemnity by the government
of France, proceed to say: '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.'
"It is equally clear, on the other hand, that neither the French
government nor the French ministers acted on the supposition
that war had existed between the two nations. And it was for
this reason that they held the treaties of 1778 still binding.
Within a month or two of the signature of the treaty, the
ministers plenipotentiary of the French Republic write thus to
Messrs. Ellsworth, Davie, and Murray: 'In the first place, they
will insist upon the principle already laid down in their former
note, viz.: that the treaties which united France and the United
States are not broken; that even war could not have broken them;
but that the state of misunderstanding which 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.'
"Finally, sir, the treaty itself, what is it? It is not called
a treaty of peace; it does not provide for putting an end to
hostilities. It says not one word of any preceding war; but it
does say that 'differences' have arisen between the two states,
and that they have, therefore, respectively, appointed their
plenipotentiaries, and given them full powers to treat upon
those 'differences,' and to terminate the same.
"But the second article of the treaty, as negotiated and agreed
on by the ministers of both governments, is, of itself, a
complete refutation of the whole argument which is urged against
this bill, on the ground that the claims had been extinguished
by war, since that article distinctly and expressly acknowledges
the existence of the claims, and contains a solemn pledge that
the two governments, not being able to agree on them at present,
will negotiate further on them, at convenient time thereafter.
Whether we look, then, to the decisions of the American courts,
to the acts of Congress, to the instructions of the American
executive government, to the language of our ministers, to the
declarations of the French government and the French ministers,
or to the unequivocal language of the treaty itself, as
originally agreed to, we meet irresistible proof of the truth of
the declaration, that the state of misunderstanding which had
existed between the two countries was not war.
"If the treaty had remained as the ministers on both sides
agreed upon it, the claimants, though their indemnity was
postponed, would have had no just claim on their own government.
But the treaty did not remain in this state. This second article
was stricken out by the Senate; and, in order to see the obvious
motive of the Senate in thus striking out the second article,
allow me to read the whole article. It is in these words:
"'The ministers plenipotentiary of the two parties not being
able to agree, at present, respecting the treaty of alliance
of the 6th of February, 1778, the treaty of amity and commerce
of the same date, and the convention of the 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.'
"The article thus stipulating to make the claims of France,
under the old treaties, matter of further negotiation, in
order to get rid of such negotiation, and the whole subject,
the Senate struck out the entire article, and ratified the
treaty in this corrected form. France ratified the treaty,
as thus amended, with the further declaration that, by thus
retrenching the second article, the two nations renounce the
respective pretensions which were the object of the article.
In this declaration of the French government, the Senate
afterwards acquiesced; so that the government of France, by this
retrenchment, agreed to renounce her claims under the treaties
of 1778, and the United States, in like manner, renounced the
claims of their citizens for indemnities due to them.
"And this proves, sir, the second proposition which I stated
at the commencement of my remarks, viz.: that these claims
were released, relinquished, or extinguished, by the amendment
of the treaty, and its ratification as amended. It is only
necessary to add, on this point, that these claims for captures
before 1800 would have been good claims under the late treaty
with France, and would have come in for a dividend in the fund
provided by that treaty, if they had not been released by the
treaty of 1800. And they are now excluded from all participation
in the benefit of the late treaty, because of such release or
extinguishment by that of 1800.
"In the third place, sir, it is to be proved, if it be not
proved already, that these claims were surrendered, or
released by the government of the United States, on national
considerations, and for objects in which these claimants had no
more interest than any other citizens.
"Now, sir, I do not feel called on to make out that the claims
and complaints of France against the government of the United
States were well founded. It is certain that she put forth such
claims and complaints, and insisted on them to the end. It is
certain that, by the treaty of alliance of 1778, the United
States did guaranty to France her West India possessions. It is
certain that, by the treaty of commerce of the same date, the
United States stipulated that French vessels of war might bring
their prizes into the ports of the United States, and that the
enemies of France should not enjoy that privilege; and it is
certain that France contended that the United States had plainly
violated this article, as well by their subsequent treaty with
England as by other acts of the government. For the violation
of these treaties she claimed indemnity from the government
of the United States. Without admitting the justice of these
pretensions, the government of the United States found them
extremely embarrassing, and they authorized our ministers in
France to buy them off by money.
"For the purpose of showing the justice of the present bill,
it is not necessary to insist that France was right in these
pretensions. Right or wrong, the United States were anxious to
get rid of the embarrassments which they occasioned. They were
willing to compromise the matter. The existing state of things,
then, was exactly this:
"France admitted that citizens of the United States had just
claims against her; but she insisted that she, on the other
hand, had just claims against the government of the United
States.
"She would not satisfy our citizens, till our government agreed
to satisfy her. Finally, a treaty is ratified, by which the
claims on both sides are renounced.
"The only question is, whether the relinquishment of these
individual claims was the price which the United States paid
for the relinquishment, by France, of her claims against our
government? And who can doubt it? Look to the negotiation;
the claims on both sides were discussed together. Look to the
second article of the treaty, as originally agreed to; the
claims on both sides are there reserved together. And look to
the Senate's amendment, and to the subsequent declaration of
the French government, acquiesced in by the Senate; and there
the claims on both sides are renounced together. What stronger
proof could there be of mutuality of consideration? Sir, allow
me to put this direct question to the honorable member from
New-York. If the United States did not agree to renounce these
claims, in consideration that France would renounce hers, what
was the reason why they surrendered thus the claims of their
own citizens? Did they do it without any consideration at all?
Was the surrender wholly gratuitous? Did they thus solemnly
renounce claims for indemnity, so just, so long insisted on by
themselves, the object of two special missions, the subjects of
so much previous controversy, and at one time so near being the
cause of open war--did the government surrender and renounce
them gratuitously, or for nothing? Had it no reasonable motive
in the relinquishment? Sir, it is impossible to maintain any
such ground.
"And, on the other hand, let me ask, was it for nothing that
France relinquished, what she had so long insisted on, the
obligation of the United States to fulfil the treaties of 1778?
For the extinguishment of this obligation we had already offered
her a large sum of money, which she had declined. Was she now
willing to give it up without any equivalent?
"Sir, the whole history of the negotiation is full of proof that
the individual claims of our citizens, and the government claims
of France against the United States, constituted the respective
demands of the two parties. They were brought forward together,
discussed together, insisted on together. The French ministers
would never consent to disconnect them. While they admitted, in
the fullest manner, the claims on our side, they maintained,
with persevering resolution, the claims on the side of France.
It would fatigue the Senate were I to go through the whole
correspondence, and show, as I could easily do, that, in every
stage of the negotiation, these two subjects were kept together.
I will only refer to some of the more prominent and decisive
parts.
"In the first place, the general instructions which our
ministers received from our own government, when they undertook
the mission, directed them to insist on the claims of
American citizens against France, to propose a joint board of
commissioners to state those claims, and to agree to refer the
claims of France for infringements of the treaty of commerce to
the same board. I will read, sir, so much of the instructions as
comprehend these points:
"'1. At the opening of the negotiation you 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, under color of authority or commissions
from the French Republic or its agents. And all captures and
condemnations are deemed irregular or illegal when contrary
to the law of nations, generally received and acknowledged in
Europe, and to the stipulations in the treaty of amity and
commerce of the 6th of February, 1778, fairly and ingenuously
interpreted, while that treaty remained in force.'
"'2. If these preliminaries should be satisfactorily arranged,
then, for the purpose of examining and adjusting all the
claims of our citizens, it will be necessary to provide for
the appointment of a board of commissioners, similar to that
described in the sixth and seventh articles of the treaty of
amity and commerce between the United States and Great Britain.'
"'As the French government have heretofore complained of
infringements of the treaty of amity and commerce, by the United
States or their citizens, all claims for injuries, thereby
occasioned to France or its citizens, are to be submitted to the
same board; and whatever damages they award will be allowed by
the United States, and deducted from the sums awarded to be paid
by France.'
"Now, sir, suppose this board had been constituted, and suppose
that it had made awards against France, in behalf of citizens
of the United States, and had made awards also in favor of
the government of France against the government of the United
States; and then these last awards had been deducted from the
amount of the former, and the property of citizens thus applied
to discharge the public obligations of the country, would any
body doubt that such citizens would be entitled to indemnity?
And are they less entitled, because, instead of being first
liquidated and ascertained, and then set off, one against the
other, they are finally agreed to be set off against each other,
and mutually relinquished in the lump?
"Acting upon their instructions, it will be seen that the
American ministers made an actual offer to suspend the claim for
indemnities till France should be satisfied as to her political
rights under the treaties. On the 15th of July they made this
proposition to the French negotiators:
"'Indemnities to be ascertained and secured in the manner
proposed in our project of a treaty, but not to be paid until
the United States shall have offered to France an article
stipulating free admission, in the ports of each, for the
privateers and prizes of the other, to the exclusion of their
enemies.'
"This, it will be at once seen, was a direct offer to suspend
the claims of our own citizens till our government should be
willing to renew to France the obligation of the treaty of 1778.
Was not this an offer to make use of private property for public
purposes?
"On the 11th of August, the French plenipotentiaries thus write
to the ministers of the United States:
"'The propositions which the French ministers have the honor
to communicate to the ministers plenipotentiary of the United
States are reduced to this simple alternative:
"'Either the ancient treaties, with the privileges resulting
from priority, and a stipulation of reciprocal indemnities;
"'Or a new treaty, assuring equality without indemnity.'
"In other words, this offer is, 'if you will acknowledge or
renew the obligation of the old treaties, which secure to us
privileges in your ports which our enemies are not to enjoy,
then we will make indemnities for the losses of your citizens;
or, if you will give up all claim for such indemnities, then
we will relinquish our especial privileges under the former
treaties, and agree to a new treaty which shall only put us on a
footing of equality with Great Britain, our enemy.'
"On the 20th of August our ministers propose that the former
treaties, so far as they respect the rights of privateers,
shall be renewed; but that it shall be optional with the United
States, by the payment, within seven years, of three millions
of francs, either in money or in securities issued by the
French government for indemnities to our citizens, to buy off
this obligation, or to buy off all its political obligations,
under both the old treaties, by payment in like manner of five
millions of francs.
"On the 4th of September the French ministers submit these
propositions.
"'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.'
"The American ministers considered these propositions as
inadmissible. They, however, on their part, made an approach
to them, by proposing, in substance, that it should be left
optional with the United States, on the exchange of the
ratification, to relinquish the indemnities, and in that case,
the old treaties not to be obligatory on the United States, so
far as they conferred exclusive privileges on France. This will
be seen in the letter of the American ministers of the 5th of
September.
"On the 18th of September the American ministers say to those of
France;
"'It remains only to consider the expediency of a temporary
arrangement. Should such an arrangement comport with the views
of France, the following principles are offered as the basis of
it:
"'1st. The ministers plenipotentiary of the respective
parties not being able at present to agree respecting the
former treaties and indemnities, the parties will, in due and
convenient time, further treat on those subjects; and, until
they shall have agreed respecting the same, the said treaties
shall have no operation.'
"This, the Senate will see, is substantially the proposition
which was ultimately accepted, and which formed the second
article of the treaty. By that article, these claims, on both
sides, were postponed for the present, and afterwards, by other
acts of the two governments, they were mutually and for ever
renounced and relinquished.
"And now, sir, if any gentleman can look to the treaty, look
to the instructions under which it was concluded, look to the
correspondence which preceded it, and look to the subsequent
agreement of the two governments to renounce claims, on both
sides, and not admit that the property of these private citizens
has been taken to buy off embarrassing claims of France on
the government of the United States, I know not what other or
further evidence could ever force that conviction on his mind.
"I will conclude this part of the case by showing you how
this matter was understood by the American administration
which finally accepted the treaty, with this renouncement of
indemnities. The treaty was negotiated in the administration of
Mr. Adams. It was amended in the Senate, as already stated, and
ratified on the third day of February, 1801, Mr. Adams being
still in office. Being thus ratified, with the amendment, it
was sent back to France, and on the thirty-first day of July,
the first Consul ratified the treaty, as amended by striking
out the second article, but accompanied the ratification with
this declaration, 'provided that, by this retrenchment, the two
states renounce their respective pretensions, which are the
object of the said article.'
"With this declaration appended, the treaty came back to
the United States. Mr. Jefferson had now become President,
and Mr. Madison was Secretary of State. In consequence of
the declaration of the French government, accompanying its
ratification of the treaty and now attached to it, Mr. Jefferson
again referred the treaty to the Senate, and on the 19th of
December, 1801, the Senate resolved that they considered the
treaty as duly ratified. Now, sir, in order to show what Mr.
Jefferson and his administration thought of this treaty, and the
effect of its ratification, in its then existing form, I beg
leave to read an extract of an official letter from Mr. Madison
to Mr. Pinckney, then our minister in Spain. Mr. Pinckney was at
that time negotiating for the adjustment of our claims on Spain;
and, among others, for captures committed within the territories
of Spain, by French subjects. Spain objected to these claims, on
the ground that the United States had claimed redress of such
injuries from France. In writing to Mr. Pinckney (under date of
February 6th, 1804), and commenting on this plea of Spain, Mr.
Madison says:
"'The plea on which it seems the Spanish government now
principally relies, is the erasure of the second article from
our late convention with France, by which France was released
from the indemnities due for spoliations committed under her
immediate responsibility to the United States. This plea did not
appear in the early objections of Spain to our claims. It was an
afterthought, resulting from the insufficiency of every other
plea, and is certainly as little valid as any other.'
"'The injuries for which indemnities are claimed from Spain,
though committed by Frenchmen, took place under Spanish
authority. Spain, therefore, is answerable for them. To her we
have looked, and continue to look for redress. If the injuries
done to us by her resulted in any manner from injuries done to
her by France, she may, if she pleases, resort to France as we
resort to her. But whether her resort to France would be just
or unjust is a question between her and France, not between
either her and us, or us and France. We claim against her, not
against France. In releasing France, therefore, we have not
released her. The claims, again, 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. The claims we make on Spain were
never admitted by France, nor made on France by the United
States; they made, therefore, no part of the bargain with her,
and could not be included in the release.'
"Certainly, sir, words could not have been used which should
more clearly affirm that these individual claims, these private
rights of property, had been applied to public uses. Mr.
Madison here declares, unequivocally, that these claims had
been admitted by France; that they were relinquished by the
government of the United States; that they were relinquished
for a valuable consideration; that that consideration was a
correspondent release of the United States from certain claims
on them; and that the whole transaction was a bargain between
the two governments. This, sir, be it remembered, was little
more than two years after the final promulgation of the treaty;
it was by the Secretary of State under that administration which
gave effect to the treaty in its amended form, and it proves,
beyond mistake and beyond doubt, the clear judgment which that
administration had formed upon the true nature and character of
the whole transaction."