Chapter 4

“The two parties guaranty,mutually, from the present timeand forever, against all other powers, to wit: The United States to His Most Christian Majesty,the present possessions of the crown of France in America, as well as those which it may acquire by the future treaty of peace; and His Most Christian Majesty guaranties, on his part, to the United States,their liberty,sovereignty,and independence, absolute and unlimited, as well in matters of government as commerce, and also their possessions, and the additions or conquests that their Confederation may obtain during the war from any of the dominions now or heretofore possessed by Great Britain in North America.”[148]

To fix more precisely the sense of this article, it was further stipulated, that,—

“In case of a rupturebetween France and England, the reciprocal guaranty shall have its full force and effect the moment such war shall break out; and if such rupture shall not take place, the mutual obligations of the said guaranty shall not commence until the moment of the cessation of the present war between the United States and England shall have ascertained their possessions.”[149]

The possessions of France in America at this date were the islands of San Domingo, Martinique, Guadeloupe, St. Lucia, St. Bartholomew, Deseada, Mariegalante, St. Pierre, Miquelon, and, on the main-land, Cayenne,—each and all of which the United States guarantied to Franceforever, being acontinuing guaranty, so far as this term of law is applicable to an international transaction, which, beginning “in case of a rupture between France and England,” was operative after “the cessation of the present war between the United States and England,” and was to continue “forever.”

The terms of the “guaranty” are general, and it was “forever.” Even if limited todefensivewar, it would be difficult to say that France was not engaged in such a war, with the added incident that it was a war by a combination of kings to overcome a republic. France was alone, with the royalties of Europe embattled against her. Only after the execution of the King England joined this array, lending to it invincible navies. But, according to official avowals, it was what King George called “the atrocious act recently perpetrated at Paris”[150]that finally prompted the part she undertook, and her real object, in the language of Mr. Fox, was no other than“the destruction of the internal Government of France.”[151]The case was unprecedented; but it is difficult to say that it did not come under the “guaranty.” Thecasus fœderishad occurred. If France did not exact performance, that is no reason why our obligations should be disowned, when, at the present moment, we are trying to arrive at some appreciation of their extent. A careful examination of the treaty shows that the “guaranty” became primarily obligatory on the occurrence ofa rupture between France and England. Nothing is said or suggested as to the character of the war, whether offensive or defensive. It is enough that there was “a rupture.” In such a case, the “guaranty,” according to the illustration of Cicero, was,tanquam gladius in vagina, at the disposal of France. Our Secretary of State, even while seeking to limit its application, seems to have seen it prospectively in this light, when, in his instructions of July 15, 1797, to our plenipotentiaries, Messrs. Pinckney, Marshall, and Gerry, he said, “Our guaranty of the possessions of France in America will perpetually expose us to the risk and expense of war, or to disputes and questions concerning our national faith.”[152]

2. The Treaty of Amity and Commerce contained a succession of mutual stipulations, by which the United States undertook,—first, to protect and defend by their ships of war, or convoy, any or all vessels belonging to French subjects, so long as they hold the same course, “against all attacks, force, and violence, in the same manner as they ought to protect and defend” the vessels of citizens of the United States;[153]secondly, to opentheir ports to French ships of war and privateers with their prizes, and to close them against those of any power at war with France, except when driven by stress of weather, and then “all proper means shall be vigorously used that they go out and retire from thence as soon as possible”;[154]thirdly, according to French construction, to allow French privateers “to fit their ships, to sell what they have taken, or in any other manner whatsoever to exchange their ships, merchandise, or any other lading,” while privateers in enmity with France are forbidden even to victual in ports of the United States.[155]As if to round and complete these engagements, it was further stipulated on the part of the United States, in a Consular Convention, which, after many perplexities of diplomacy baffling the tried skill of Franklin, was finally signed by Mr. Jefferson, in 1788, as a postscript to the earlier treaties, that French consuls and vice-consuls in the United States should have power and jurisdiction on board French vessels in civil matters, with the entire inspection over such vessels, their crews, and the changes and substitutions there to be made.[156]

Such, briefly recited, were the solemn engagements of the United States, sanctioned by treaties, as the price of independence. So long as France remained at peace with all the world, especially with Great Britain, these engagements slept unnoticed, but ready, at the first blast of war, to spring into life. At length the blast was heard, perhaps as never before in human history, echoing from capital to capital, and sounding a crusade of monarchicalEurope against republican France. Of all the foreign ministers at Paris, the minister of the United States alone remained: the rest had fled.

The minister of the United States saw the danger lowering upon his own country. In a letter to the Secretary of State, dated December 21, 1792, after presenting a rapid sketch of the rising of Europe against France, he adds: “The circumstance of a war with Britain becomes important to us in more cases than one”; and he then alludes to “the question respecting theguarantyof American possessions, especially if France should attempt to defend her islands.”[157]Notoriously, Gouverneur Morris sympathized little with the French Republic, but, against all arguments for non-compliance with our original engagements, because the Government with which they were made had ceased to exist, his sensitive nature broke forth in the “wish that all our treaties, however onerous, may be strictly fulfilled according to their true intent and meaning,” which he followed in language foreign to the phrases of diplomacy, by picturing “the honest nation as that which, like the honest man,

‘Hath to its plighted faith and vow forever firmly stood;And though it promised to its loss, yet makes that promise good.’”[158]

‘Hath to its plighted faith and vow forever firmly stood;

And though it promised to its loss, yet makes that promise good.’”[158]

In harmony with this exclamation of the plenipotentiary are the words of Vattel, an authority much quoted at the time: “To refuse an ally the succors we owe him, without any good ground of dispensation, is doing him an injury, … and there being a natural obligation to repair the damage caused by our fault, and especially by our injustice, we are bound to indemnify an allyfor all the losses he may have sustained from our unjust refusal.”[159]

Since the signature of the treaties times had changed, and men had changed with them. There was no bad faith on either side, in the ordinary sense of the term, but intervening events and exigencies of self-defence had driven each into unexpected inconsistencies of conduct. If on one side there was neglect of original engagements, there was on the other equal neglect of international duties. The tornado in mad career uprooted old landmarks, and each was striving to find new lines of reciprocal relations. Franklin, signing the “guaranty,” did not expect so soon to call down upon his country the lightnings of an embattled world; nor did France, while formally conceding neutral rights on the ocean and assuring our national independence, expect so soon to become the plunderer of our commerce. But the great tragedy would have been less complete, if its domineering Nemesis had suffered the two republics to dwell in harmony together. They were whirled, on each side, into those questionable acts out of which have sprung the claims and counter-claims now under consideration.

A new French minister was at hand, accredited to President Washington, with fresh instructions. Differences on the obligations of the guaranty appeared in the Cabinet,—some holding that no necessity for decision existed, as France had made no demand,—and others, that, the Treaty of Alliance being plainly defensive, the guaranty did not apply to a war begun by France. After ample discussion, the Proclamation of Neutrality was adopted, April 22, 1793, destined to become a turning-pointin our history. Chief Justice Marshall, whose opportunities of information were unquestionable, lets us know that the Proclamation “was intended to prevent the French minister from demandingthe performance of the guaranty contained in the Treaty of Alliance.”[160]But before the Proclamation reached France, orders were issued there for the capture and confiscation of enemy goods on board neutral vessels; whereas it was stipulated with the United States that free ships should make free goods; so that, even if the denial of the guaranty was wrong, and the Proclamation, according to French accusation, “insidious,” the United States were not the first to offend.

On the day of the Proclamation came news by the journals that Genet, the new French minister, had landed in South Carolina, where, amid the darkest days of the Revolution, Lafayette had also first landed. Full of conviction that France had only to make herself heard in order to be sustained, Genet exalted himself conspicuously above the Government. By instructions from the Executive Council of the French Republic, dated 17th of January, 1793, he was enjoined “to penetrate profoundly the sense of the treaties of 1778, and to watch over the articles favorable to the commerce and navigation of the United States, and to make the Americans consider engagements which might appear onerousas the just price of the independence which the French nation had secured to them.” Not content with existing safeguards, the new minister was to negotiate a supplementary treaty, to fix more surely “thereciprocal guarantyof the possessions of the two powers.”[161]In this spirit he commenced aturbulent career, charging offensively that the President, before knowing what the minister had to communicate from the French Republic, was in a hurry “to proclaim sentiments on which decency and friendship should at least have drawn a veil,”—that he “took on himself to give to our treaties arbitrary interpretations absolutely contrary to their true sense,” and that “he left no other indemnification to France for the blood she spilt, for the treasure she dissipated, in fighting for the independence of the United States, but the illusory advantage of bringing into their ports the prizes made on their enemies without being able to sell them,”—and that the Secretary of War, on his communication of the wish of the Windward Islands “to receive promptly some fire-arms and some cannon, which might put into a state of defencepossessions guarantied by the United States, had the front to answer, with an ironical carelessness, that the principles established by the President did not permit him to lend so much as a pistol.”[162]In another letter, the French minister, under date of June 8, 1793, requires that “the Federal Government should observe the public engagements contracted, and give to the world the example of a true neutrality, which does not consist in the cowardly abandonment of friends at the moment when danger menaces.”[163]And in still another letter, dated June 22, 1793, he declares that“it is in the conventional compacts, collectively, that we ought to seek contracts of alliance and of commerce simultaneously made, if we wish to take their sense and interpret faithfully the intentions of the people who cemented them, and of the men of genius who dictated them.”[164]All of which was followed by another letter, dated November 14, 1793, in which the minister says categorically: “I beg you to lay before the President of the United States, as soon as possible, the decree and the inclosed note, and to obtain from him the earliest decision,either as to the guaranty I have claimed the fulfilment of for our colonies, or upon the mode of negotiation of the new treaty I was charged to propose to the United States, and which would make of the two nations but one family.”[165]At last Genet was recalled, but the question of our engagements with France could not be dismissed. It was more menacing than any minister. Without it all the turbulence of Genet would have been as the idle wind.

And yet, for a while, each party seems to have practised a certain reserve. Genet stormed, but the Government at home was tranquil. The “guaranty” was suspended, even in discussion. France forbore to press it, and the United States were happy to avoid the over-shadowing question. The Secretary of State, in instructions to Mr. Monroe, dated June 10, 1794, while “insisting upon compensation for the captures and spoliations of our property and injuries to the persons of our citizens by French cruisers,” was careful to add: “If the execution of theguarantyof the French islands by force of arms should be propounded, you will refer the Republic of France to this side of the water.”[166]Mr. Monroe, in his correspondence, under date of September 15, 1794, says:“This Republic had declined calling on us to execute the guaranty, from a spirit of magnanimity, and strong attachment to our welfare”; but he reveals his anxiety lest an attempt to press our case “might give birth to sentiments of a different kind, andcreate a disposition to call on us to execute that of the Treaty of Alliance.”[167]In another letter, dated November 7, 1794, describing an interview with the very able Diplomatic Committee, our plenipotentiary confesses the embarrassment he encountered, when M. Merlin three times asked, “Do you insist uponourexecuting the treaty?” and he gives his reply, that he “was not instructed by the President to insist on it, nor did he insist on it”; and he avows that in his opinion such insistence would have been impolitic, as “exciting a disposition to press us on other points,upon which it were better to avoid any discussion.”[168]There is other testimony of this nature, unnecessary to produce. Suffice it to say, that for some time there was a lull, soon to be followed by a storm.

French forbearance is more remarkable, when it is considered that the occasion for the “guaranty” had begun to be urgent. Even before Howe’s great victory of June, over the French fleet, the British navy swept the sea, rendering all French possessions insecure. Martinique, San Domingo, St. Lucia, and Guadeloupe were lost to the Republic in the spring of 1794, so that the British historian has written: “Thus, in little more than a month, the French were entirely dispossessed of their West India possessions, with hardly any loss to the victorious nation.”[169]But the “guaranty” was invoked by the impatient colonists, who, without waiting the slower movement of the French Republic, appealeddirectly to our Congress for “divers necessary succors, of provision, ammunition, and even men,” and in impassioned language pictured “England come to take possession of the French colonies in the name of a king without dominions, and North America, witness to that political perfidy, not able to lend a helping hand against an unworthy treachery.”[170]The French Government at home did not share the fury of the colonists. According to Mr. Monroe, in his letter of December 2, 1794, whatever may have been their desires at a previous stage, they did not now wish us to “embark with them in the war,” but “would rather we would not, from an idea it might diminish their supplies from America,” and “if the point depended on them, they would leave us to act in that respect according to our own wishes”; at the same time they looked to us for “aid in the article of money.”[171]This moderation, although a temporary waiver, was in no respect a renunciation of rights. According to Mr. Jefferson, in a letter written some months after his retirement from the Cabinet, and addressed to Mr. Madison, under date of April 3, 1794, the “guaranty” was still obligatory. “As to the guaranty of the French islands,” he wrote, “whatever doubts may be entertained of the moment at which we ought to interpose, yetI have no doubt but that we ought to interpose at a proper time, and declare both to England and France that these islands are to rest with France, and that we will makea common causewith the latter for that object.”[172]Such was American testimony.

The West India islands were lost without causing an apparent smart at home; but it was different, when the news came of Mr. Jay’s negotiation in England. The Republic was stung to the quick, and, when the treaty became known, did not conceal its indignant anger. In a formal note, dated March 9, 1796, it set forth its complaints, dwelling especially upon the “inexecution of the treaties,” and upon the formation of the recent treaty with Great Britain, in which the United States “knowingly and evidently sacrificed their connections with the Republic.”[173]In conversation with Mr. Monroe, the French minister said “that France had much cause of complaint against us, independently of our treaty with England, but that by this treaty ours with them was annihilated.”[174]The year closed with the recall of Mr. Monroe, and with a notice from the French Government “that it will no longer recognize nor receive a Minister Plenipotentiary from the United States,until after a reparation of the grievances demanded of the American Government, and which the French Republic has a right to expect”; and then, adding ingratitude to the list of our offences, it declared an equal expectation “that the successors of Columbus, Raleigh, and Penn, always proud of their liberty, will never forget thatthey owe it to France.”[175]Meanwhile, M. Adet, the French plenipotentiary in Philadelphia, was addressing our Government in similar strain, calling for the discharge of our engagements, and heaping reproaches:“The undersigned, Minister Plenipotentiary of the French Republic, now fulfils to the Secretary of State of the United States a painful, but sacred duty.He claims, in the name of American honor, in the name of the faith of treaties, the execution of that contract which assured to the United States their existence, and which France regarded as the pledge of the most sacred union between two people the freest upon earth.” And he charges the Government of the United States with “sacrificing France to her enemies,” “forgetting the services that she had rendered it,” and “throwing aside the duty of gratitude, as if ingratitude was a Governmental duty.”[176]From this time forward the claims of the United States never failed to encounter the counter-claims of France.

The mutual coquetry which characterized the two Governments during the mission of Mr. Monroe gave way to mutual recrimination and repulsion, where France took the lead. M. Adet was recalled from Philadelphia. Mr. Pinckney was sent away from Paris. Besides the earlier decree, announcing that the Republic would treat all neutrals in the same manner as they suffered the English to treat them, other fatal blows were now dealt at our commerce, letting loose a new brood of spoliations destined to swell the catalogue of our claims, by a decree pronouncing the stipulations of the treaty of 1778 which concerned the neutrality of the flags altered and suspended in their most essential points by the treaty with England, greatly enlarging the list of contraband, declaring Americans in the service of England pirates, and authorizing the seizure of all American vessels without arôle d’équipage, which, notoriously, no American vessel ever carried, so that practicallyour flag was delivered over to the depredations of every French cruiser.[177]

Then came that plenipotentiary triumvirate, Messrs. Pinckney, Marshall, and Gerry, who were particularly instructed by our Government, while urging the multiplied claims of our citizens, already valued at “more than twenty millions of dollars,” to propose “a substitute for the reciprocal guaranty,” or, “if France insists on the mutual guaranty, to aim at some modification of it,”—“instead of troops or ships of war, to stipulate for a moderate sum of money or quantity of provisions, at the option of France: the provisions to be delivered at our own ports, in any futuredefensivewars; the sum of money, or its value in provisions, not to exceed two hundred thousand dollars a year, during any such wars.”[178]Here was recognition of the “guaranty,” and a sum offered for release from its requirements. But the French Republic, drunk with triumph and maddened with anger, was in no mood for negotiation. It met our plenipotentiaries with an intrigue already mentioned as unparalleled in diplomacy, and, after tolerating their presence for a while at Paris, without conceding an official reception, sent them away, disappointed and dishonored. Even in the informal relations which were permitted, Talleyrand, in the name of the Republic, advanced and vindicated the counter-claims of France. Without dwelling at length on his argument, it is enough to quote certain words in a letter to Mr. Gerry, of June 10, 1798:“The French Republic desires to be restored to the rights which its treaties with your Republic confer upon it, and through those means it desires to assure yours. You claim indemnities; it equally demands them; and this disposition, being as sincere on the part of the Government of the United States as it is on its part, will speedily remove all the difficulties.”[179]Thus plainly was the case stated. It was not denied that indemnities were due to the United States, but it was insisted that they were also due to France.

The two countries, once allies, were now in the most painful relations. Washington was no longer President; but his Farewell Address, in some of its most important parts, was evidently inspired by the counter-claims of France, especially when he warned his fellow-countrymen “to steer clear ofpermanent allianceswith any portion of the foreign world,so far as we are now at liberty to do it,”—“to have with foreign nations as littlepoliticalconnection as possible,”—“to be constantly awake against the insidious wiles of foreign influence,”—and then asked in well-known words, “Why quit our own, to stand upon foreign ground? Why, byinterweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor, or caprice?”[180]In these remarkable words, where the same tone, if not the same lesson, recurs, we discern the undissembled anxieties of the hour. By the guaranty and other stipulations of 1778, our peace and prosperity had been entangled, even if our destiny had not been interwoven, in distant toils. France was urgent and brutal. War seemed impending. At last another triumvirate of plenipotentiaries, Messrs. Ellsworth, Davie, and Murray, was commissioned to attempt again the adjustment of complicationsthat had thus far baffled the wisdom of Washington; but compensation for the “individual” claims of American citizens was required as an indispensable condition.

Such are the counter-claims of France in origin and history. And now again we are brought to the very point where the Committee had arrived in exhibiting the claims of our citizens. The plenipotentiaries on each side have met to negotiate, while the First Consul has gone to Marengo. On each side they are equally tenacious. There is a dead-lock. How this was overcome belongs to the next chapter.

The rules of duty and of conduct between individuals are applicable also to nations, and the proceedings on this occasion illustrate this principle. The two parties could not agree. Clearly, then, for the sake of harmony, it was essential to postpone both claims and counter-claims, for some future negotiation, or, if this were not done, to treat them as a set-off to each other. Such, unquestionably, would have been the action between individuals. But the history of this negotiation shows the adoption of these two modes successively. Postponement was first tried, but it gave way at last toset-off, by virtue of which theinternationalcontroversy was closed. This conclusion was reached slowly and by stages, as is seen in a simple narrative of the negotiation.

The plenipotentiaries on each side evinced a disposition to provide for reciprocal claims; but the claims specified by the American plenipotentiaries were those of “citizensof either nation,” while those specified by the French plenipotentiaries were those which “either nation may make foritselfor for any of its citizens.”[181]In this difference of specification was the germ of the antagonism soon developed, especially when the American plenipotentiaries proposed to recognize the treaties and Consular Convention as existing only to July 7, 1798,[182]the date of the statute by which Congress undertook to annul them. This distinction seems to have been unnecessary, for the French spoliations were clearly as much in contravention of the Law of Nations as of the treaties. But it furnished the French plenipotentiaries opportunity of declaring, under date of May 6, 1800, that “the mission of the Ministers Plenipotentiary of the French Republic has pointed out to them the Treaties of Alliance, Friendship, and Commerce, and the Consular Convention,as the only foundations of their negotiations”; that “upon these acts has arisen the misunderstanding, and it seems proper that upon these acts union and friendship should be established.”[183]Thus were the treaties put forward by France; and our plenipotentiaries, writing to their own Government, May 17, 1800, represent her as persistent: “Our success is yet doubtful. The French think it hard to indemnify for violating engagements,unless they can thereby be restored to the benefits of them.”[184]But on this point our Government was inexorable.

The return of the First Consul from Italy was signalized by fresh instructions to the French plenipotentiaries, who proceeded to declare, under date of August 11, 1800, that “the treaties which united France and the United States are not broken,” and that their first proposition is “to stipulate a full and entire recognition of the treaties, and the reciprocal engagement of compensation for damages resulting on both sides from their infraction.” Here, again, the “individual” claims of citizens of the United States were doomed to encounter the “national” claims of France. And this communication concluded with a formal proposition in these words: “Either the ancient treaties, with the privileges resulting from priority and the stipulation of reciprocal indemnities, or a new treaty, assuring equality without indemnity.”[185]Thus it stood: Claims and Counter-Claims.

The American plenipotentiaries were driven to choose between abandonment of the negotiations and abandonment of their instructions. It was clear, from French persistency, that the treaties, with all the counter-claims, must be recognized, or the indemnities, with all the claims, must be sacrificed. The American plenipotentiaries then took the extraordinary responsibility of a proposition which discloses not only their earnest desire for a settlement, but also their sense of pressure from France. It was nothing less than a price, in money, for release from certain stipulations; but this was to be accomplished by “a reciprocal stipulation forindemnities limited to the claims of individuals.”[186]The French plenipotentiaries, in reply, insisted upon recognition ofthe treaties in general terms, and also the rights of their privateers in our ports; yet they offered to commute the guaranty for a sum of money.[187]The American plenipotentiaries, hampered by the recent treaty with Great Britain, were obliged to reject this proposition; but, after requiring the satisfaction of “individual” claims, they offered, in general terms, that “the former treaties be renewed and confirmed, and have the same effect as if no misunderstanding between the two powers had intervened”; and further, that,in consideration of eight millions of francs, the United States should be released from the guaranty, and also from those other articles relating to prizes which had caused so much embarrassment.[188]Then the French plenipotentiaries assumed a new position in the following reply, September 4, 1800.

“To the Ministers Plenipotentiary of the United States at Paris:—“We shall have the right to take our prizes into the ports of America.“A commission shall regulate the indemnities which either of the two nations may owe to the citizens of the other.“The indemnities which shall be due by France to the citizens of the United States shall be paid for by the United States. And in return for which, France yields the exclusive privilege resulting from the 17th and 22d articles of the Treaty of Commerce, and from the rights of guaranty of the 11th article of the Treaty of Alliance.“Bonaparte.“C. P. Claret-Fleurieu.“Roederer.”[189]

“To the Ministers Plenipotentiary of the United States at Paris:—

“We shall have the right to take our prizes into the ports of America.

“A commission shall regulate the indemnities which either of the two nations may owe to the citizens of the other.

“The indemnities which shall be due by France to the citizens of the United States shall be paid for by the United States. And in return for which, France yields the exclusive privilege resulting from the 17th and 22d articles of the Treaty of Commerce, and from the rights of guaranty of the 11th article of the Treaty of Alliance.

“Bonaparte.“C. P. Claret-Fleurieu.“Roederer.”[189]

Here was the first proposition ofset-off. On the one side were “indemnities due by France to citizens of the United States,” and on the other side were “privileges and rights” under the treaties; but it will not fail to be remarked thatthe indemnities due by France were to be paid by the United States. This proposition proceeded on the idea that the counter-claims of France were at least equal in value to the claims of the United States, and that the release of the former was a sufficient consideration for the assumption of the latter. But this was entirely beyond the powers of the American plenipotentiaries, who, in their reply, pronounced it “inadmissible.”[190]It revealed the desire of France to escape any payment of money, as only a few days later was openly avowed by the French plenipotentiaries, “giving as one reason the utter inability of France to pay, in the situation in which she would be left by the present war.”[191]This declared inability served to explain the difficulties encountered by the American plenipotentiaries. Evidently there was a “foregone conclusion” against any payment by France. The counter-claims furnished the neededsubstitute. But, as these were “national,” while the claims of the United States were “individual,” there could be no justset-offbetween them, unless the American Government assured to its citizens the payment of what was due from France, according to the proposition of the French plenipotentiaries.

The American plenipotentiaries were disheartened. Nothing in their instructions enabled them to meet the new and unexpected turn of affairs. The treatythey had striven for seemed to elude their grasp. In their journal, under date of September 13, 1800, is the record, that, “being now convinced that the door was perfectly closed against all hope of obtaining indemnities with any modifications of the treaties, it only remained to be determined whether, under all circumstances, it would not be expedient to attempta temporary arrangement.”[192]The French plenipotentiaries did not consider this proposition, without insisting, “first, that a stipulation of indemnities carries with it the full and entire admission of the treaties, and, secondly, that the relinquishment of the advantages and privileges stipulated by the treaties, by means of the reciprocal relinquishment of indemnities, would prove to be the most advantageous arrangement, and also the most honorable to the two nations.”[193]Here, again, was a proposition ofset-off, which was repeated in other different forms.

The dead-lock which clogged the negotiation, even at the beginning, was now complete. The American plenipotentiaries announced at home that they were driven to quit France, or to find some other terms of adjustment.[194]The latter alternative prevailed, and the negotiation was renewed, with the understanding that the parties put off to another time the discussion of indemnities and the treaties.[195]The other questions furnished no ground of serious controversy; and the conferences proceeded tranquilly, from day to day, till September 30, 1800, resulting in what was entitled a“ProvisionalTreaty.” The title revealing its temporary character was subsequently changed, at the request of the French plenipotentiaries, to that of “Convention,” which it now bears in the statute-book.

The Convention, after declaring in its first article that “there shall be a firm, inviolable, and universal peace, and a true and sincere friendship, between the French Republic and the United States of America,” proceeds to stipulate as follows.

“Art. II.The Ministers Plenipotentiary of the two parties not being able to agree at present respecting the Treaty of Alliance of 6th February, 1778, the Treaty of Amity and Commerce of the same date, and the Convention of 14th of November, 1788, nor upon the indemnities mutually due or claimed, the parties will negotiate further on these subjects at a convenient time; and until they may have agreed upon these points, the said treaties and convention shall have no operation, and the relations of the two countries shall be regulated as follows.”[196]

Here the disagreement with regard to the early treaties and the indemnities mutually due or claimed is specifically declared, and it is then provided that “the partieswill negotiate further on these subjects at a convenient time,”—meaning, of course, that hereafter, at a more auspicious moment, and with other plenipotentiaries, “the parties” will attempt to reconcile this disagreement. The whole subject, with its seven years of controversy and heart-burning, was postponed. Claims and counter-claims were left to sleep, while the spirit of peace descended upon the two countries.

The Convention was signed at Morfontaine, the elegant country home of Joseph Bonaparte, and the occasion was turned into a festival,—illustrated afterwards by the engraving of Piranesi,—where nothing was wanting that hospitality could supply. The First Consul was there, with his associates in power; also Lafayette, rescued from his Austrian dungeon and restored to France; and there also were the plenipotentiaries of both sides, with American citizens then in France, all gathered in brilliant company to celebrate the establishment of concord between the two republics.[197]The First Consul proposed as a toast, “To the manes of the French and the Americans who died on the field of battle for the independence of the New World”; so that even at this generous festival, to grace a reconciliation founded on the postponement of claims and counter-claims, the youthful chief, whose star was beginning to fill the heavens, proclaimed the undying obligations of the United States to France. This strain has been adopted by M. Thiers, who, after referring to this convention as the first concluded by the Consular Government, says: “It was natural that the reconciliation of France with the different powers of the globe should begin withthat republic to which she had in a measure given birth.” The great historian, while thus recording our obligations to France, shows how claims and counter-claims had been postponed. “The First Consul,” he says, “had allowed the difficulties relative to the Treaty of Alliance of the 6th of February, 1778, to be adjourned; but, on the other hand, he had required the adjournment of the claims of the Americans relative to captured vessels.”[198]In this summary the stipulations at the signature of the Convention are accurately stated. Though imperfect, it was the first in that procession of peace, embracing Lunéville, Amiens, and the Concordat, which for a moment closed the Temple of Janus, whose gates had been left open by the Revolution in France.

The ratification by the First Consul followed the celebration at Morfontaine, so that the Convention, with its postponement of mutual claims, was definitely accepted by France. It was otherwise in the United States, where the result did not find favor. The postponement of a controversy is not a settlement, and here was nothing but postponement, leaving the old cloud hanging over the country, ready to burst at the motion of England or France. It was important that the early treaties, with their entangling engagements, should cease, even as a subject of future negotiation. In this spirit, the Senate, on the submission of the Convention for ratification, expunged the second article, providing that “the parties will negotiate further on these subjects,” and limited the Convention to eight years. On the 18th of February, 1801, President Adams, by proclamation countersigned by John Marshall, as Secretary of State, published the Convention as duly ratified, “saving and excepting the second article,” which was declared “to be expunged, and of no force or validity.”[199]The precise effect of this proceeding was not explained, and it remained to see how it would be regarded in France.

Were the claims on France abandoned? This was the question which occupied the attention of our minister, Mr. Murray, when charged to exchange with Francethe ratifications of the Convention as amended by the Senate. Reporting to the Government at home his conference with the French plenipotentiaries, he said, “I fear that they will press an article of formal abandonment on our part,which I shall evade.”[200]He hoped, to keep still another chance for indemnities. On the other hand, the French plenipotentiaries feared that an unconditional suppression of the second article would leave them exposed to the claims of the United States without chance for their counter-claims; but they did not object to a mutual abandonment of indemnities, which Mr. Murray admitted would “always beset offagainst each other.”[201]At last the conclusion was reached, and on the 31st of July, 1801, the Convention was ratified by the First Consul, with the limitation to eight years, and with the retrenchment of the second article, according to the amendment by the Senate, the whole with a proviso by the First Consul “That by this retrenchment the two states renounce the respective pretensions which are the object of the said article.”[202]Such were the important words of final settlement. What had been left to inference in the amendment of the Senate was placed beyond question by this French proviso. Claims and counter-claims were not merely suspended; they were formally abandoned. The Convention, with this decisive modification, was submitted to the Senate by President Jefferson, and again ratified by a vote of twenty-two yeas to four nays. On the 21st of December, 1801, it was promulgated by the President in the usual form, with itssupplementary proviso, and all persons were enjoined to observe and fulfil the same, “and every clause and article thereof.”[203]

One aspect of this result cannot fail to arrest attention. Here was a release of all outstanding obligations of the United States under those famous treaties which assured National Independence. The joy with which those heralds of triumph were first welcomed in camp and Congress has been portrayed; and now a kindred joy prevailed, when the country, anxious and sorely tried, was at last set free from their obligations, and American commerce, venturing forth again from its banishment, brought back its treasures to pour them into the lap of the people. Strange fate! There was joy at the birth of these treaties, and joy also at their death. But it was because their death had become to us, like their birth, a source of national strength and security.

Thus closed a protracted controversy, where each power was persistent to the last. Nothing could be more simple than the adjustment, and nothing more equitable,if we regard the two Governments only. The claims of each were treated as aset-offto the claims of the other, andmutual releaseswere interchanged, so that each, while losing what it claimed, triumphed over its adversary. But the triumph of the United States was at the expense of American citizens. Nothing is without price; and new duties, originating in this triumph, sprang into being.

Then came the assumption by our Government of the original obligations of France, and its completesubstitutionfor Franceas the responsible debtor. This liability was distinctly foreseen by the American plenipotentiaries, Messrs. Pinckney, Marshall, and Gerry, as appears in their words, under date of October 22, 1797: “We observed to M. Bellamy, that none of our vessels had what the French termed arôle d’équipage, and that, if we were to surrender all the property which had been taken from our citizens in cases where their vessels were not furnished with such a rôle,the Government would be responsible to its citizens for the property so surrendered, since it would be impossible to undertake to assert that there was any plausibility in the allegation that our treaty required arôle d’équipage.”[204]This admission, so important in this discussion, was so clearly in conformity with correct principles, that it was naturally made, even without special instructions.

Had the claims been “national” on each side, no subsequent question could have occurred, for each would have extinguished the other in all respects forever. It was the peculiarity of this case, that on one side the claims were “national,” and on the other side “individual.” But aset-offof “individual” claims against “national” claims must, of course, leave that Government responsible which has appropriated the“individual” claims to this purpose. The set-off and mutual release are between nation and nation; but if the claims on one side are only “individual,” and not “national,” the nation which by virtue of this consideration is released from “national” obligations must besubstitutedfor the other nation as debtor, so that every “individual” with claims thus appropriated may confidently turn to it for satisfaction. On this point there can be no doubt, whether we regard it in the light of common sense, reason, duty, Constitution, or authority.

1. According tocommon sense, any “individual” interest appropriated to a “national” purpose must create a debt on the part of the nation, still further enhanced, if, through this appropriation, the nation is relieved from outstanding engagements already the occasion of infinite embarrassment, and hanging like a drawn sword over the future.

2. According toreason, any person intrusted with the guardianship of particular interests becomes personally responsible with regard to them, especially if he undertakes to barter them against other interests for which he is personally responsible. Thus, an attorney, sacrificing the claims of his clients for the release of his own personal obligations, becomes personally liable; and so also the trustee, appropriating the trust fund for any personal interest, becomes personally liable. All this is too plain for argument; but it is applicable to a nation as to an individual. In the case now before your Committee, our Government was attorney to prosecute “individual” claims of citizens, and also trustee for their benefit, to watch and protect their interests; so that it was bound to all the responsibilities of attorneyand trustee, absolutely incapacitated from any act of personal advantage, and compelled to regard all that it obtained, whatever form of value it might assume, whether money or release, as a trust fund for the original claimants.

3.Duty, also, in harmony with reason, enjoins upon Government the protection of citizens against foreign spoliations and the prosecution of their claims to judgment. Such are powerless as “individuals.” Their claims are effective only when adopted by the nation. This duty, so obvious on general principles, was reinforced in the present case by the special undertaking of Mr. Jefferson, already adduced, when he announced that he had it “in charge from the President to assure the merchants of the United States concerned in foreign commerce or navigation, that due attention will be paid to any injuries they may suffer on the high seas or in foreign countries.”[205]Such a duty, thus founded, and thus openly assumed, could not be abandoned, on any inducement proceeding from France, without a corresponding responsibility toward those citizens whose interests were allowed to suffer. A waiver of national duty, especially where made for the national benefit, must entail national obligation.

4. TheConstitutionalso plainly requires what seems so obvious to common sense, reason, and duty, when it declares that “private property shall not be taken for public usewithout just compensation.” Here “private property,” to a vast amount, was taken for “public use,” involving the peace and welfare of the whole country; and down to this day the sufferers are petitioning Congressfor that “just compensation” solemnly promised by the Constitution.

5.Public lawis also in harmony with the Constitution. According to Vattel, the sovereign may, in the exercise of his right of eminent domain, dispose of the property, and even the person, of a subject, by treaty with a foreign power; “but,” says this eminent authority, “as it is for the public advantage that he thus disposes of them, the state is bound to indemnify the citizens who are sufferers by the transaction.”[206]Words more applicable to the present case could not be employed.

6. The authority of great names confirms this liability. Among those who took part in the negotiations with France, none but Mr. Pickering and Chief Justice Marshall still lingered on the stage when the subject was finally pressed upon Congress. Mr. Pickering was Secretary of State under Washington and Adams, and drew the instructions. His testimony is explicit. Without giving his statement at length, it will be enough to quote these words, in a letter dated November 19, 1824:—

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