WASHINGTON, _February 17, 1855_.
_To the House of Representatives_:
I have received and carefully considered the bill entitled "An act
to provide for the ascertainment of claims of American citizens for
spoliations committed by the French prior to the 31st of July, 1801,"
and in the discharge of a duty imperatively enjoined on me by the
Constitution I return the same with my objections to the House of
Representatives, in which it originated.
In the organization of the Government of the United States the
legislative and executive functions were separated and placed in
distinct hands. Although the President is required from time to time
to recommend to the consideration of Congress such measures as he shall
judge necessary and expedient, his participation in the formal business
of legislation is limited to the single duty, in a certain contingency,
of demanding for a bill a particular form of vote prescribed by the
Constitution before it can become a law. He is not invested with power
to defeat legislation by an absolute veto, but only to restrain it, and
is charged with the duty, in case he disapproves a measure, of invoking
a second and a more deliberate and solemn consideration of it on the
part of Congress. It is not incumbent on the President to sign a bill
as a matter of course, and thus merely to authenticate the action of
Congress, for he must exercise intelligent judgment or be faithless to
the trust reposed in him. If he approve a bill, he shall sign it, but
if not he shall return it with his objections to that House in which
it shall have originated for such further action as the Constitution
demands, which is its enactment, if at all, not by a bare numerical
majority, as in the first instance, but by a constitutional majority
of two-thirds of both Houses.
While the Constitution thus confers on the legislative bodies the
complete power of legislation in all cases, it proceeds, in the spirit
of justice, to provide for the protection of the responsibility of the
President. It does not compel him to affix the signature of approval to
any bill unless it actually have his approbation; for while it requires
him to sign if he approve, it, in my judgment, imposes upon him the duty
of withholding his signature if he do not approve. In the execution of
his official duty in this respect he is not to perform a mere mechanical
part, but is to decide and act according to conscientious convictions of
the rightfulness or wrongfulness of the proposed law. In a matter as to
which he is doubtful in his own mind he may well defer to the majority
of the two Houses. Individual members of the respective Houses, owing to
the nature, variety, and amount of business pending, must necessarily
rely for their guidance in many, perhaps most, cases, when the matters
involved are not of popular interest, upon the investigation of
appropriate committees, or, it may be, that of a single member, whose
attention has been particularly directed to the subject. For similar
reasons, but even to a greater extent, from the number and variety of
subjects daily urged upon his attention, the President naturally relies
much upon the investigation had and the results arrived at by the two
Houses, and hence those results, in large classes of cases, constitute
the basis upon which his approval rests. The President's responsibility
is to the whole people of the United States, as that of a Senator is to
the people of a particular State, that of a Representative to the people
of a State or district; and it may be safely assumed that he will not
resort to the clearly defined and limited power of arresting legislation
and calling for reconsideration of any measure except in obedience
to requirements of duty. When, however, he entertains a decisive and
fixed conclusion, not merely of the unconstitutionality, but of the
impropriety, or injustice in other respects, of any measure, if he
declare that he approves it he is false to his oath, and he deliberately
disregards his constitutional obligations.
I cheerfully recognize the weight of authority which attaches to the
action of a majority of the two Houses. But in this case, as in some
others, the framers of our Constitution, for wise considerations of
public good, provided that nothing less than a two-thirds vote of one
or both of the Houses of Congress shall become effective to bind the
coordinate departments of the Government, the people, and the several
States. If there be anything of seeming invidiousness in the official
right thus conferred on the President, it is in appearance only, for the
same right of approving or disapproving a bill, according to each one's
own judgment, is conferred on every member of the Senate and of the
House of Representatives.
It is apparent, therefore, that the circumstances must be extraordinary
which would induce the President to withhold approval from a bill
involving no violation of the Constitution. The amount of the claims
proposed to be discharged by the bill before me, the nature of the
transactions in which those claims are alleged to have originated,
the length of time during which they have occupied the attention of
Congress and the country, present such an exigency. Their history
renders it impossible that a President who has participated to any
considerable degree in public affairs could have failed to form
respecting them a decided opinion upon what he would deem satisfactory
grounds. Nevertheless, instead of resting on former opinions, it has
seemed to me proper to review and more carefully examine the whole
subject, so as satisfactorily to determine the nature and extent of my
obligations in the premises.
I feel called upon at the threshold to notice an assertion, often
repeated, that the refusal of the United States to satisfy these claims
in the manner provided by the present bill rests as a stain on the
justice of our country. If it be so, the imputation on the public honor
is aggravated by the consideration that the claims are coeval with the
present century, and it has been a persistent wrong during that whole
period of time. The allegation is that private property has been taken
for public use without just compensation, in violation of express
provision of the Constitution, and that reparation has been withheld
and justice denied until the injured parties have for the most part
descended to the grave. But it is not to be forgotten or overlooked that
those who represented the people in different capacities at the time
when the alleged obligations were incurred, and to whom the charge of
injustice attaches in the first instance, have also passed away and
borne with them the special information which controlled their decision
and, it may be well presumed, constituted the justification of their
acts.
If, however, the charge in question be well founded, although its
admission would inscribe on our history a page which we might desire
most of all to obliterate, and although, if true, it must painfully
disturb our confidence in the justice and the high sense of moral and
political responsibility of those whose memories we have been taught
to cherish with so much reverence and respect, still we have only one
course of action left to us, and that is to make the most prompt and
ample reparation in our power and consign the wrong as far as may be
to forgetfulness.
But no such heavy sentence of condemnation should be lightly passed upon
the sagacious and patriotic men who participated in the transactions out
of which these claims are supposed to have arisen, and who, from their
ample means of knowledge of the general subject in its minute details
and from their official position, are peculiarly responsible for
whatever there is of wrong or injustice in the decisions of the
Government.
Their justification consists in that which constitutes the objection to
the present bill, namely, the absence of any indebtedness on the part
of the United States. The charge of denial of justice in this case, and
consequent stain upon our national character, has not yet been indorsed
by the American people. But if it were otherwise, this bill, so far from
relieving the past, would only stamp on the present a more deep and
indelible stigma. It admits the justice of the claims, concedes that
payment has been wrongfully withheld for fifty years, and then proposes
not to pay them, but to compound with the public creditors by providing
that, whether the claims shall be presented or not, whether the sum
appropriated shall pay much or little of what shall be found due, the
law itself shall constitute a perpetual bar to all future demands. This
is not, in my judgment, the way to atone for wrongs if they exist, nor
to meet subsisting obligations.
If new facts, not known or not accessible during the Administration of
Mr. Jefferson, Mr. Madison, or Mr. Monroe, had since been brought to
light, or new sources of information discovered, this would greatly
relieve the subject of embarrassment. But nothing of this nature has
occurred.
That those eminent statesmen had the best means of arriving at a correct
conclusion no one will deny. That they never recognized the alleged
obligation on the part of the Government is shown by the history of
their respective Administrations. Indeed, it stands not as a matter of
controlling authority, but as a fact of history, that these claims have
never since our existence as a nation been deemed by any President
worthy of recommendation to Congress.
Claims to payment can rest only on the plea of indebtedness on the part
of the Government. This requires that it should be shown that the United
States have incurred liability to the claimants, either by such acts as
deprived them of their property or by having actually taken it for
public use without making just compensation for it.
The first branch of the proposition--that on which an equitable claim
to be indemnified by the United States for losses sustained might
rest--requires at least a cursory examination of the history of the
transactions on which the claims depend. The first link which in the
chain of events arrests attention is the treaties of alliance and of
amity and commerce between the United States and France negotiated in
1778. By those treaties peculiar privileges were secured to the armed
vessels of each of the contracting parties in the ports of the other,
the freedom of trade was greatly enlarged, and mutual obligations were
incurred by each to guarantee to the other their territorial possessions
in America.
In 1792-93, when war broke out between France and Great Britain, the
former claimed privileges in American ports which our Government did
not admit as deducible from the treaties of 1778, and which it was held
were in conflict with obligations to the other belligerent powers. The
liberal principle of one of the treaties referred to--that free ships
make free goods, and that subsistence and supplies were not contraband
of war unless destined to a blockaded port--was found, in a commercial
view, to operate disadvantageously to France as compared with her enemy,
Great Britain, the latter asserting, under the law of nations, the right
to capture as contraband supplies when bound for an enemy's port.
Induced mainly, it is believed, by these considerations, the Government
of France decreed on the 9th of May, 1793, the first year of the war,
that "the French people are no longer permitted to fulfill toward the
neutral powers in general the vows they have so often manifested, and
which they constantly make for the full and entire liberty of commerce
and navigation," and, as a counter measure to the course of Great
Britain, authorized the seizure of neutral vessels bound to an enemy's
port in like manner as that was done by her great maritime rival.
This decree was made to act retrospectively, and to continue until the
enemies of France should desist from depredations on the neutral vessels
bound to the ports of France. Then followed the embargo, by which our
vessels were detained in Bordeaux; the seizure of British goods on
board of our ships, and of the property of American citizens under the
pretense that it belonged to English subjects, and the imprisonment of
American citizens captured on the high seas.
Against these infractions of existing treaties and violations of our
rights as a neutral power we complained and remonstrated. For the
property of our injured citizens we demanded that due compensation
should be made, and from 1793 to 1797 used every means, ordinary and
extraordinary, to obtain redress by negotiation. In the last-mentioned
year these efforts were met by a refusal to receive a minister sent
by our Government with special instructions to represent the amicable
disposition of the Government and people of the United States and their
desire to remove jealousies and to restore confidence by showing that
the complaints against them were groundless. Failing in this, another
attempt to adjust all differences between the two Republics was made in
the form of an extraordinary mission, composed of three distinguished
citizens, but the refusal to receive was offensively repeated, and thus
terminated this last effort to preserve peace and restore kind relations
with our early friend and ally, to whom a debt of gratitude was due
which the American people have never been willing to depreciate or to
forget. Years of negotiation had not only failed to secure indemnity
for our citizens and exemption from further depredation, but these
long-continued efforts had brought upon the Government the suspension
of diplomatic intercourse with France and such indignities as to induce
President Adams, in his message of May 16, 1797, to Congress, convened
in special session, to present it as the particular matter for their
consideration and to speak of it in terms of the highest indignation.
Thenceforward the action of our Government assumed a character which
clearly indicates that hope was no longer entertained from the amicable
feeling or justice of the Government of France, and hence the subsequent
measures were those of force.
On the 28th of May, 1798, an act was passed for the employment of the
Navy of the United States against "armed vessels of the Republic of
France," and authorized their capture if "found hovering on the coast
of the United States for the purpose of committing depredations on the
vessels belonging to the citizens thereof;" on the 18th of June, 1798,
an act was passed prohibiting commercial intercourse with France under
the penalty of the forfeiture of the vessels so employed; on the 25th
of June, the same year, an act to arm the merchant marine to oppose
searches, capture aggressors, and recapture American vessels taken by
the French; on the 28th of June, same year, an act for the condemnation
and sale of French vessels captured by authority of the act of 28th of
May preceding; on the 27th of July, same year, an act abrogating the
treaties and the convention which had been concluded between the United
States and France, and declaring "that the same shall not henceforth
be regarded as legally obligatory on the Government or citizens of the
United States;" on the 9th of the same month an act was passed which
enlarged the limits of the hostilities then existing by authorizing our
public vessels to capture armed vessels of France wherever found upon
the high seas, and conferred power on the President to issue commissions
to private armed vessels to engage in like service.
These acts, though short of a declaration of war, which would put ail
the citizens of each country in hostility with those of the other, were,
nevertheless, actual war, partial in its application, maritime in its
character, but which required the expenditure of much of our public
treasure and much of the blood of our patriotic citizens, who, in
vessels but little suited to the purposes of war, went forth to battle
on the high seas for the rights and security of their fellow-citizens
and to repel indignities offered to the national honor.
It is not, then, because of any failure to use all available means,
diplomatic and military, to obtain reparation that liability for private
claims can have been incurred by the United States, and if there is any
pretense for such liability it must flow from the action, not from the
neglect, of the United States. The first complaint on the part of France
was against the proclamation of President Washington of April 22, 1793.
At that early period in the war which involved Austria, Prussia,
Sardinia, the United Netherlands, and Great Britain on the one part and
France on the other, the great and wise man who was the Chief Executive,
as he was and had been the guardian of our then infant Republic,
proclaimed that "the duty and interest of the United States require that
they should with sincerity and good faith adopt and pursue a conduct
friendly and impartial toward the belligerent powers." This attitude of
neutrality, it was pretended, was in disregard of the obligations of
alliance between the United States and France. And this, together with
the often-renewed complaint that the stipulations of the treaties of
1778 had not been observed and executed by the United States, formed the
pretext for the series of outrages upon our Government and its citizens
which finally drove us to seek redress and safety by an appeal to force.
The treaties of 1778, so long the subject of French complaints, are now
understood to be the foundation upon which are laid these claims of
indemnity from the United States for spoliations committed by the French
prior to 1800. The act of our Government which abrogated not only the
treaties of 1778, but also the subsequent consular convention of 1788,
has already been referred to, and it may be well here to inquire what
the course of France was in relation thereto. By the decrees of 9th of
May, 1793, 7th of July, 1796, and 2d of March, 1797, the stipulations
which were then and subsequently most important to the United States
were rendered wholly inoperative. The highly injurious effects which
these decrees are known to have produced show how vital were the
provisions of treaty which they violated, and make manifest the
incontrovertible right of the United States to declare, as the
consequence of these acts of the other contracting party, the treaties
at an end.
The next step in this inquiry is whether the act declaring the treaties
null and void was ever repealed, or whether by any other means the
treaties were ever revived so as to be either the subject or the source
of national obligation. The war which has been described was terminated
by the treaty of Paris of 1800, and to that instrument it is necessary
to turn to find how much of preexisting obligations between the two
Governments outlived the hostilities in which they had been engaged.
By the second article of the treaty of 1800 it was declared that the
ministers plenipotentiary of the two parties not being able to agree
respecting the treaties of alliance, amity, and commerce of 1778 and the
convention of 1788, nor upon the indemnities mutually due or claimed,
the parties will negotiate further on these subjects at a convenient
time; and until they shall have agreed upon these points the said
treaties and convention shall have no operation.
When the treaty was submitted to the Senate of the United States, the
second article was disagreed to and the treaty amended by striking it
out and inserting a provision that the convention then made should
continue in force eight years from the date of ratification, which
convention, thus amended, was accepted by the First Consul of France,
with the addition of a note explanatory of his construction of the
convention, to the effect that by the retrenchment of the second article
the two States renounce the respective pretensions which were the object
of the said article.
It will be perceived by the language of the second article, as
originally framed by the negotiators, that they had found themselves
unable to adjust the controversies on which years of diplomacy and of
hostilities had been expended, and that they were at last compelled to
postpone the discussion of those questions to that most indefinite
period, a "convenient time." All, then, of these subjects which was
revived by the convention was the right to renew, when it should be
convenient to the parties, a discussion which had already exhausted
negotiation, involved the two countries in a maritime war, and on which
the parties had approached no nearer to concurrence than they were when
the controversy began.
The obligations of the treaties of 1778 and the convention of 1788 were
mutual, and estimated to be equal. But however onerous they may have
been to the United States, they had been abrogated, and were not revived
by the convention of 1800, but expressly spoken of as suspended until an
event which could only occur by the pleasure of the United States. It
seems clear, then, that the United States were relieved of no obligation
to France by the retrenchment of the second article of the convention,
and if thereby France was relieved of any valid claims against her the
United States received no consideration in return, and that if private
property was taken by the United States from their own citizens it was
not for public use. But it is here proper to inquire whether the United
States did relieve France from valid claims against her on the part of
citizens of the United States, and did thus deprive them of their
property.
The complaints and counter complaints of the two Governments had been
that treaties were violated and that both public and individual rights
and interests had been sacrificed. The correspondence of our ministers
engaged in negotiations, both before and after the convention of 1800,
sufficiently proves how hopeless was the effort to obtain full indemnity
from France for injuries inflicted on our commerce from 1793 to 1800,
unless it should be by an account in which the rival pretensions of the
two Governments should each be acknowledged and the balance struck
between them.
It is supposable, and may be inferred from the contemporaneous history
as probable, that had the United States agreed in 1800 to revive the
treaties of 1778 and 1788 with the construction which France had placed
upon them, that the latter Government would, on the other hand, have
agreed to make indemnity for those spoliations which were committed
under the pretext that the United States were faithless to the
obligations of the alliance between the two countries.
Hence the conclusion that the United States did not sacrifice private
rights or property to get rid of public obligations, but only refused to
reassume public obligations for the purpose of obtaining the recognition
of the claims of American citizens on the part of France.
All those claims which the French Government was willing to admit were
carefully provided for elsewhere in the convention, and the declaration
of the First Consul, which was appended in his additional note, had no
other application than to the claims which had been mutually made by the
Governments, but on which they had never approximated to an adjustment.
In confirmation of the fact that our Government did not intend to cease
from the prosecution of the just claims of our citizens against France,
reference is here made to the annual message of President Jefferson of
December 8, 1801, which opens with expressions of his gratification at
the restoration of peace among sister nations; and, after speaking of
the assurances received from all nations with whom we had principal
relations and of the confidence thus inspired that our peace with them
would not have been disturbed if they had continued at war with each
other, he proceeds to say:
But a cessation of irregularities which had affected the commerce of
neutral nations, and of the irritations and injuries produced by them,
can not but add to this confidence, and strengthens at the same time the
hope that wrongs committed on unoffending friends under a pressure of
circumstances will now be reviewed with candor, and will be considered
as founding just claims of retribution for the past and new assurance
for the future.
The zeal and diligence with which the claims of our citizens against
France were prosecuted appear in the diplomatic correspondence of the
three years next succeeding the convention of 1800, and the effect of
these efforts is made manifest in the convention of 1803, in which
provision was made for payment of a class of cases the consideration of
which France had at all previous periods refused to entertain, and which
are of that very class which it has been often assumed were released by
striking out the second article of the convention of 1800. This is shown
by reference to the preamble and to the fourth and fifth articles of the
convention of 1803, by which were admitted among the debts due by France
to citizens of the United States the amounts chargeable for "prizes made
at sea in which the appeal has been properly lodged within the time
mentioned in the said convention of the 30th of September, 1800;" and
this class was further defined to be only "captures of which the council
of prizes shall have ordered restitution, it being well understood that
the claimant can not have recourse to the United States otherwise than
he might have had to the French Republic, and only in case of the
insufficiency of the captors."
If, as was affirmed on all hands, the convention of 1803 was intended
to close all questions between the Governments of France and the United
States, and 20,000,000 francs were set apart as a sum which might
exceed, but could not fall short of, the debts due by France to the
citizens of the United States, how are we to reconcile the claim now
presented with the estimates made by those who were of the time and
immediately connected with the events, and whose intelligence and
integrity have in no small degree contributed to the character and
prosperity of the country in which we live? Is it rational to assume
that the claimants who now present themselves for indemnity by the
United States represent debts which would have been admitted and paid by
France but for the intervention of the United States? And is it possible
to escape from the effect of the voluminous evidence tending to
establish the fact that France resisted all these claims; that it was
only after long and skillful negotiation that the agents of the United
States obtained the recognition of such of the claims as were provided
for in the conventions of 1800 and 1803? And is it not conclusive
against any pretensions of possible success on the part of the
claimants, if left unaided to make their applications to France, that
the only debts due to American citizens which have been paid by France
are those which were assumed by the United States as part of the
consideration in the purchase of Louisiana?
There is little which is creditable either to the judgment or patriotism
of those of our fellow-citizens who at this day arraign the justice,
the fidelity, or love of country of the men who founded the Republic in
representing them as having bartered away the property of individuals to
escape from public obligations, and then to have withheld from them just
compensation. It has been gratifying to me in tracing the history of
these claims to find that ample evidence exists to refute an accusation
which would impeach the purity, the justice, and the magnanimity of the
illustrious men who guided and controlled the early destinies of the
Republic.
I pass from this review of the history of the subject, and, omitting
many substantial objections to these claims, proceed to examine somewhat
more closely the only grounds upon which they can by possibility be
maintained.
Before entering on this it may be proper to state distinctly certain
propositions which it is admitted on all hands are essential to prove
the obligations of the Government.
First. That at the date of the treaty of September 30, 1800, these
claims were valid and subsisting as against France.
Second. That they were released or extinguished by the United States in
that treaty and by the manner of its ratification.
Third. That they were so released or extinguished for a consideration
valuable to the Government, but in which the claimants had no more
interest than any other citizens.
The convention between the French Republic and the United States of
America signed at Paris on the 30th day of September, 1800, purports
in the preamble to be founded on the equal desire of the First Consul
(Napoleon Bonaparte) and the President of the United States to terminate
the differences which have arisen between the two States. It declares,
in the first place, that there shall be firm, inviolable, and universal
peace and a true and sincere friendship between the French Republic and
the United States. Next it proceeds, in the second, third, fourth, and
fifth articles, to make provision in sundry respects, having reference
to past differences and the transition from the state of war between the
two countries to that of general and permanent peace. Finally, in the
residue of the twenty-seventh article, it stipulates anew the conditions
of amity and intercourse, commercial and political, thereafter to exist,
and, of course, to be substituted in place of the previous conditions of
the treaties of alliance and of commerce and the consular convention,
which are thus tacitly but unequivocally recognized as no longer in
force, but in effect abrogated, either by the state of war or by the
political action of the two Republics.
Except in so far as the whole convention goes to establish the fact that
the previous treaties were admitted on both sides to be at an end, none
of the articles are directly material to the present question save the
following:
ART. II. The ministers plenipotentiary of the two parties not being able
to agree at present respecting the treaty of alliance of 6th February,
1778, the treaty of amity and commerce of the same date, and the
convention of 14th of November, 1788, nor upon the indemnities mutually
due or claimed, the parties will negotiate further on these subjects at
a convenient time; and until they may have agreed upon these points the
said treaties and convention shall have no operation, and the relations
of the two countries shall be regulated as follows:
* * * * *
ART. V. The debts contracted by one of the two nations with individuals
of the other, or by the individuals of one with the individuals of the
other, shall be paid, or the payment may be prosecuted, in the same
manner as if there had been no misunderstanding between the two States.
But this clause shall not extend to indemnities claimed on account of
captures or confiscations.
On this convention being submitted to the Senate of the United States,
they consented and advised to its ratification with the following
proviso:
_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 ratifications.
The spirit and purpose of this change are apparent and unmistakable.
The convention as signed by the respective plenipotentiaries did not
adjust all the points of controversy. Both nations, however, desired the
restoration of peace. Accordingly, as to those matters in the relations
of the two countries concerning which they could agree, they did agree
for the time being; and as to the rest, concerning which they could not
agree, they suspended and postponed further negotiation.
They abandoned no pretensions, they relinquished no right on either
side, but simply adjourned the question until "a convenient time."
Meanwhile, and until the arrival of such convenient time, the relations
of the two countries were to be regulated by the stipulations of the
convention.
Of course the convention was on its face a temporary and provisional
one, but in the worst possible form of prospective termination. It was
to cease at a convenient time. But how should that convenient time be
ascertained? It is plain that such a stipulation, while professedly not
disposing of the present controversy, had within itself the germ of a
fresh one, for the two Governments might at any moment fall into dispute
on the question whether that convenient time had or had not arrived.
The Senate of the United States anticipated and prevented this question
by the only possible expedient; that is, the designation of a precise
date. This being done, the remaining parts of the second article became
superfluous and useless, for as all the provisions of the convention
would expire in eight years, it would necessarily follow that
negotiations must be renewed within that period, more especially as the
operation of the amendment which covered the whole convention was that
even the stipulation of peace in the first article became temporary and
expired in eight years, whereas that article, and that article alone,
was permanent according to the original tenor of the convention.
The convention thus amended, being submitted to the First Consul, was
ratified by him, his act of acceptance being accompanied with the
following declaratory note:
The Government of the United States having added in 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 convention, as thus ratified by the First Consul, having been again
submitted to the Senate of the United States, that body resolved that
"they considered the convention as fully ratified," and returned the
same to the President for promulgation, and it was accordingly
promulgated in the usual form by President Jefferson.
Now it is clear that in simply resolving that "they considered the
convention as fully ratified" the Senate did in fact abstain from any
express declaration of dissent or assent to the construction put by the
First Consul on the retrenchment of the second article. If any inference
beyond this can be drawn from their resolution, it is that they regarded
the proviso annexed by the First Consul to his declaration of acceptance
as foreign to the subject, as nugatory, or as without consequence or
effect. Notwithstanding this proviso, they considered the ratification
as full. If the new proviso made any change in the previous import of
the convention, then it was not full; and in considering it a full
ratification they in substance deny that the proviso did in any respect
change the tenor of the convention.
By the second article, as it originally stood, neither Republic had
relinquished its existing rights or pretensions, either as to other
previous treaties or the indemnities mutually due or claimed, but
only deferred the consideration of them to a convenient time. By the
amendment of the Senate of the United States that convenient time,
instead of being left indefinite, was fixed at eight years; but no
right or pretension of either party was surrendered or abandoned.
If the Senate erred in assuming that the proviso added by the First
Consul did not affect the question, then the transaction would amount
to nothing more than to have raised a new question, to be disposed of
on resuming the negotiations, namely, the question whether the proviso
of the First Consul did or not modify or impair the effect of the
convention as it had been ratified by the Senate.
That such, and such only, was the true meaning and effect of the
transaction; that it was not, and was not intended to be, a
relinquishment by the United States of any existing claim on France, and
especially that it was not an abandonment of any claims of individual
citizens, nor the set off of these against any conceded national
obligations to France, is shown by the fact that President Jefferson did
at once resume and prosecute to successful conclusion negotiations to
obtain from France indemnification for the claims of citizens of the
United States existing at the date of that convention; for on the 30th
of April, 1803, three treaties were concluded at Paris between the
United States of America and the French Republic, one of which embraced
the cession of Louisiana; another stipulated for the payment of
60,000,000 francs by the United States to France; and a third provided
that, for the satisfaction of sums due by France to citizens of the
United States at the conclusion of the convention of September 30, 1800,
and in express compliance with the second and fifth articles thereof,
a further sum of 20,000,000 francs should be appropriated and paid by
the United States. In the preamble to the first of these treaties, which
ceded Louisiana, it is set forth that--
The President of the United States of America and the First Consul of
the French Republic, in the name of the French people, desiring to
remove all source of misunderstanding relative to objects of discussion
mentioned in the second and fifth articles of the convention of the 8th
Vendémiaire, an 9 (30th September, 1800), relative to the rights claimed
by the United States in virtue of the treaty concluded at Madrid the
27th of October, 1795, between His Catholic Majesty and the said United
States, and willing to strengthen the union and friendship which at the
time of the said convention was happily reestablished between the two
nations, have respectively named their plenipotentiaries, ... who ...
have agreed to the following articles.
Here is the most distinct and categorical declaration of the two
Governments that the matters of claim in the second article of the
convention of 1800 had not been ceded away, relinquished, or set off,
but they were still subsisting subjects of demand against France. The
same declaration appears in equally emphatic language in the third of
these treaties, bearing the same date, the preamble of which recites
that--
The President of the United States of America and the First Consul of
the French Republic, in the name of the French people, having by a
treaty of this date terminated all difficulties relative to Louisiana
and established on a solid foundation the friendship which unites the
two nations, and being desirous, in compliance with the second and fifth
articles of the convention of the 8th Vendémiaire, ninth year of the
French Republic (30th September, 1800), to secure the payment of the
sums due by France to the citizens of the United States, have appointed
plenipotentiaries--
who agreed to the following among other articles:
ART. I. The debts due by France to citizens of the United States,
contracted before the 8th of Vendémiaire, ninth year of the French
Republic (30th September, 1800), shall be paid according to the
following regulations, with interest at 6 per cent, to commence from
the periods when the accounts and vouchers were presented to the
French Government.
ART. II. 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, can not exceed the sum of
20,000,000 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. IV. 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, 8th
Vendémiaire, ninth year (30th September, 1800).
ART. V. The preceding articles shall apply only, first, to captures of
which the council of prizes shall have ordered restitution, it being
well understood that the claimant can not have recourse to the United
States otherwise than he might have had to the Government of the French
Republic, and only in case of insufficiency of the captors; second, the
debts mentioned in the said fifth article of the convention, contracted
before the 8th Vendémiaire, an 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.
* * * * *
ART. XII. In case of claims for debts contracted by the Government of
France with citizens of the United States since the 8th Vendémiaire,
ninth year (30th September, 1800), not being comprised in this
convention, may be pursued, and the payment demanded in the same manner
as if it had not been made.
Other articles of the treaty provide for the appointment of agents to
liquidate the claims intended to be secured, and for the payment of them
as allowed at the Treasury of the United States. The following is the
concluding clause of the tenth article:
The rejection of any claim shall have no other effect than to exempt
the United States from the payment of it, the French Government
reserving to itself the right to decide definitively on such claim so
far as it concerns itself.
Now, from the provisions of the treaties thus collated the following
deductions undeniably follow, namely:
First. Neither the second article of the convention of 1800, as it
originally stood, nor the retrenchment of that article, nor the proviso
in the ratification by the First Consul, nor the action of the Senate of
the United States thereon, was regarded by either France or the United
States as the renouncement of any claims of American citizens against
France.
Second. On the contrary, in the treaties of 1803 the two Governments
took up the question precisely where it was left on the day of the
signature of that of 1800, without suggestion on the part of France that
the claims of our citizens were excluded by the retrenchment of the
second article or the note of the First Consul, and proceeded to make
ample provision for such as France could be induced to admit were justly
due, and they were accordingly discharged in full, with interest, by the
United States in the stead and behalf of France.
Third. The United States, not having admitted in the convention of
1800 that they were under any obligations to France by reason of the
abrogation of the treaties of 1778 and 1788, persevered in this view of
the question by the tenor of the treaties of 1803, and therefore had no
such national obligation to discharge, and did not, either in purpose
or in fact, at any time undertake to discharge themselves from any such
obligation at the expense and with the property of individual citizens
of the United States.
Fourth. By the treaties of 1803 the United States obtained from France
the acknowledgment and payment, as part of the indemnity for the cession
of Louisiana, of claims of citizens of the United States for spoliations,
so far as France would admit her liability in the premises; but even then
the United States did not relinquish any claim of American citizens not
provided for by those treaties; so far from it, to the honor of France be
it remembered, she expressly reserved to herself the right to reconsider
any rejected claims of citizens of the United States.
Fifth. As to claims of citizens of the United States against France,
which had been the subject of controversy between the two countries
prior to the signature of the convention of 1800, and the further
consideration of which was reserved for a more convenient time by the
second article of that convention, for these claims, and these only,
provision was made in the treaties of 1803, all other claims being
expressly excluded by them from their scope and purview.
It is not to be overlooked, though not necessary to the conclusion,
that by the convention between France and the United States of the
4th of July, 1831, complete provision was made for the liquidation,
discharge, and payment on both sides of all claims of citizens of either
against the other for unlawful seizures, captures, sequestrations, or
destructions of the vessels, cargoes, or other property, without any
limitation of time, so as in terms to run back to the date of the
last preceding settlement, at least to that of 1803, if not to the
commencement of our national relations with France.
This review of the successive treaties between France and the United
States has brought my mind to the undoubting conviction that while
the United States have in the most ample and the completest manner
discharged their duty toward such of their citizens as may have been at
any time aggrieved by acts of the French Government, so also France has
honorably discharged herself of all obligations in the premises toward
the United States. To concede what this bill assumes would be to impute
undeserved reproach both to France and to the United States.
I am, of course, aware that the bill proposes only to provide
indemnification for such valid claims of citizens of the United States
against France as shall not have been stipulated for and embraced in
any of the treaties enumerated. But in excluding all such claims it
excludes all, in fact, for which, during the negotiations, France could
be persuaded to agree that she was in any wise liable to the United
States or our citizens. What remains? And for what is five millions
appropriated? In view of what has been said there would seem to be no
ground on which to raise a liability of the United States, unless it be
the assumption that the United States are to be considered the insurer
and the guarantor of all claims, of whatever nature, which any
individual citizen may have against a foreign nation.