OBJECTIONS.

“Thus the Governmentbarteredthejust claimsof our merchants on France, to obtain a relinquishment of the French claim for a restoration of the old treaties, especially the burdensome Treaty of Alliance, by which we were bound to guaranty the French territories in America. On this view of the case, it would seemthat the merchants have an equitable claim for indemnities from the United States.… It follows, then, that, if the relinquishment had not been made, the present French Government would be responsible. Consequently, the relinquishment by our ownGovernment having been made in consideration that the French Government relinquished its demand for a renewal of the old treaties,then it seems clear, that, as our Government applied the merchants’ property to buy off those old treaties, the sums so applied should be reimbursed.”[207]

Chief Justice Marshall, who was one of the plenipotentiaries that attempted to secure payment from France, and afterward, as Secretary of State, countersigned the proclamation of President Adams first promulgating the Convention of 1800, has borne testimony similar to that of Mr. Pickering. In conversation with Mr. Preston, of South Carolina, he said, that, “having been connected with the events of that period, and conversant with the circumstances under which the claims arose,he was, from his own knowledge, satisfied that there was the strongest obligation on the Government to compensate the sufferers by the French spoliations.”[208]

Hon. B. Watkins Leigh, an ancient Senator from Virginia, relates that the same eminent authority said in his presence, “distinctly and positively, thatthe United States ought to make payment of these claims.” This declaration made a particular impression upon Mr. Leigh, because he had been unfavorable to the claims.

7. The obligation of the United States may be inferred also fromthe declared justiceof the claims which had been renounced. On this point the authority is equally explicit.

Of course, in urging them upon France, earnestly andmost assiduously, by successive plenipotentiaries, there was a plain adoption of them as just. But even after their abandonment they continued to be recognized as just.

Hon. Robert R. Livingston, plenipotentiary at Paris, in his correspondence shortly after the abandonment, shows his discontent. In a note to the Minister of Exterior Relations he speaks compendiously of “the payment for illegal captures, with damages and indemnities on one side, and the renewal of the Treaty of 1778 on the other, as ofequivalent value.”[209]And in a despatch, under date of January 13, 1802, he says he has “always considered the sacrifices we have made of an immense claim asa dead loss.”[210]But this “dead loss” fell upon “individuals,” and not upon the “nation.”

Mr. Madison, as Secretary of State, in a despatch to Hon. Charles Pinckney, our minister at the court of Spain, under date of February 6, 1804, upholds the justice of the claims in significant words:—

“The claims from which France was released wereadmitted by France, and the release was fora valuable considerationin a correspondent release of the United States from certain claims on them.”[211]

Thus, according to official declaration, the claims of American citizens were “admitted by France,” but they were released fora valuable considerationwhich first inured to the benefit of the Government of the United States.Equitably, that valuable consideration must belong to the claimants.

Mr. Clay, as Secretary of State under John Quincy Adams, made a report, which had the sanction of the latter, where he fully affirms the justice of the claims:—

“The pretensions of the United States arose out of the spoliations, under color of French authority, in contravention to law and existing treaties. Those of France sprung from the Treaty of Alliance of the 6th February, 1778, the Treaty of Amity and Commerce of the same date, and the Convention of the 14th of November, 1788. Whatever obligations or indemnities from those sources either party had a right to demand were respectively waived and abandoned,and the consideration which induced one party to renounce his pretensions was that of the renunciation by the other party of his pretensions. What was the value of the obligations and indemnities so reciprocally renounced can only be matter of speculation.”[212]

Mr. Clay concludes by declaring that the Senate, to which his report is addressed, was most competent to determine how far the appropriation of the indemnities due to American citizens was “a public use of private property, within the spirit of the Constitution, and whether equitable considerations do not require some compensation to be made to the claimants.”

There is one other authority, of commanding character, not to be forgotten. It is Hon. Edward Livingston, jurist, statesman, and diplomatist, who, though not engaged in the negotiations, knew them as contemporary, and afterward, as Senator, made a report, accepted ever since as an authentic statement of the whole case, in which he says:—

“The Committee think it is sufficiently shown that the claim for indemnities was surrenderedas an equivalentforthe discharge of the United States from its heavy national obligations, and for the damages that were due for their preceding non-performance of them. If so, can there be a doubt, independent of the constitutional provision, that the sufferers are entitled to indemnity? Under that provisionis not this right converted into one that we are under the most solemn obligation to satisfy?… To lessen the public expenditure is a great legislative duty; to lessen it at the expense of justice, public faith, and constitutional right would be a crime. Conceiving that all these require that relief should be granted to the petitioners, they pray leave to bring in a bill for that purpose.”[213]

This list of authorities may be closed with that of the Emperor Napoleon, who, at St. Helena, dictated to Gourgaud the following testimony:—

“The suppression of this article [2d of the Convention] at once put an end to the privileges which France had possessed by the Treaty of 1778,and annulled the just claims which America might have made for injuries done in time of peace. This was exactly what the First Consul had proposed to himself, in fixing these two pointsas equiponderating each other.”[214]

Thus the head of the French Government at the time of the Convention unites with the statesmen of our own country in attaching value to these claims.

To all this array of argument and authority the Committee see no answer. They follow its teaching, when they adopt the conclusion, in which so many previous committees have already joined, that these individualclaims were originally just, and that the Government of the United States, having appropriated them for a “national” purpose, was substituted for France as debtor.

Assuming the obligation of the United States, the question occurs, What sum should be applied by Congress to its liquidation? But before proceeding to this point, the Committee will glance at what is urged sometimes against this obligation, so far at least as they are aware of opposition.

Objections of a preliminary character have been already considered; but there are others belonging properly to this stage of the inquiry.

Curiously, the two main objections most often adduced answer each other flatly. It is sometimes insisted that the claims were invalid, by reason of the abnormal relations between France and the United States anterior to the Convention of 1800, pronounced to be a state of war; and then, again, it is sometimes insisted that these claims were provided for in the subsequent Convention of 1803 for the purchase of Louisiana. But, if the claims were really invalid, as has been argued, it is absurd to suppose that France would have provided for them; and if they were really provided for, it is equally absurd to suppose that they were invalid. The two objections might be dismissed as equally unreasonable; but, since they have been made to play a conspicuous part, especially in Presidential vetoes, the Committee will occupy a brief moment in considering them.

Other objections, founded on the later Convention of 1831, on the Act of Congress annulling the French treaties, on the early efforts of the United States to procure satisfaction from France, and on the alleged desperate character of the claims, will be considered in their order.

The anomalous relations between France and the United States anterior to the Convention of 1800 did not constitute a state of war so as to annul all pending claims. The contrary assertion is inconsistent with (1.) the facts of the case, (2.) the declarations of the two parties, and (3.) the nature of the Convention.

Before considering these several topics, it may be remarked, that, had there been a state of war, it would not follow that all prior rights otherwise valid were annulled, so at least as not to be revived at the close of the war. On one important occasion, the contrary has been held by our Government in its negotiations with Great Britain. The provision relative to the fisheries which appears in the Treaty of 1783 was not noticed in the Treaty of Ghent; and yet the United States did not hesitate to insist afterwards, that, though interrupted by the War of 1812, it remained in full force after the termination of the war. Doubtless, claims bearing the open cause of war, and failing to be recognized in the treaty of peace, are annulled; for the treaty is the settlement of pending controversies between the two powers. But the claims in question were not the opencause even of the anomalous relations between the United States and France, and they did not fail to have such recognition in the convention terminating those relations as to exclude all idea that they were annulled by war, or any other antecedent facts. It is not necessary to consider the effect of war, for it is easy to establish that war did not exist.

1. The facts of the case are all inconsistent with war. There was no declaration of war on either side; and, still further, throughout the whole duration of the troubles the tribunals of each country were open to citizens of the other, as in times of peace; so that a citizen of the United States was not an “alien enemy” in the courts of France, nor a Frenchman an “alien enemy” in the courts of the United States. This fact, which was presented by Mr. Clayton in his masterly discussion of the question, is most suggestive, if not conclusive.

It is true that diplomatic and commercial intercourse was suspended, that the two powers armed, and that on both sides force was employed. But this painful condition of things, though naturally causing great anxiety, did not constitute war. One power may, in its own discretion, suspend diplomatic and commercial intercourse with another; it may assume all the harness of war, and even use force in retaliation, retortion, or reprisal; but all this falls short of war,especially when public acts and declarations show that war was not intended. Such conduct tends to war, and, if continued, naturally ends in war. But it is not of itself that terrible transformation by which one nation, with all its people, is converted into the enemy of another nation, with all its people, so that every citizen of theone becomes the enemy of every citizen of the other, and all pending rights and contracts between them disappear, at least for a time.

If war be the extinguisher of claims, it is because, in theory, the claimant is supposed to have opportunity for reparation by seizing the property of the enemy, wherever he can find it on the high seas. But no reprisals against France were authorized by the United States; no war on private property was permitted; so that the only principle on which war is the extinguisher of claims fails to apply.

But not even an act of war constitutes war. The two parties determine if war exists. To their public acts and mutual declarations we repair for interpretation of their conduct.

2. On the part of the United Statesthe declarations are explicitthat war did not exist, although it seemed imminent. Congress was convened in May, 1797, to deliberate on the threatening aspect of affairs, and adopt measures of public defence, which were continued in 1798 and 1799; but in all this series of acts there is constant and sedulous negation of the state of war. The Act of May 28, 1798, after reciting that “armed vessels sailing under authority or pretence of authority from the Republic of France have committed depredations on the commerce of the United States, and have recently captured the vessels and property of citizens thereof on and near the coasts,” proceeds to authorize the seizure of any such armed vessel; but nothing is said of war.[215]Another Act, bearing date the same day, authorizes a provisional army,“in the event of a declaration of waragainst the United States, or of actual invasion of their territory by a foreign power, or of imminent danger of such invasion discovered in the opinion of the President to exist,before the next session of Congress.”[216]The Act of June 13, 1798, to continue in force only till the end of the next session, and renewed February 9, 1799, for a limited term, suspended commercial relations between the two countries, under penalties of forfeiture;[217]but such acts, however menacing, are absolutely inconsistent with an existing state of war, which of itself, without any additional act, suspends all commercial relations between the belligerent parties. The Act of June 25, 1798, authorizes our merchant vessels to subdue and capture any French armed vesselfrom which an assault or other hostility shall be first made.[218]The Act of July 6, 1798, respecting alien enemies, begins with the words of limitation, “Whenever there shall be a declared warbetween the United States and any foreign nation.”[219]The Act of July 7, 1798, declares the treaties no longer “legally obligatory”;[220]but if war existed, such an act would have been superfluous. The Act of July 16, 1798, authorizes augmentation of the army “for and during the continuance ofthe existing differencesbetween the United States and the French Republic.”[221]The Act of March 2, 1799, also authorizes augmentation of the army, “in case war shall break out.”[222]Another Act, passed the next day, provides that certain troops authorized by the Act shall not be raised, “unless war shall break outbetween the United States and some European prince, potentate, or state.”[223]And aslate as February 20, 1800, while our envoys were on the way to Paris, another Act was passed, providing that further enlistments should be suspended, “unless, in the recess of Congress, and during the continuance ofthe existing differencesbetween the United States and the French Republic,war shall break outbetween the United States and the French Republic.”[224]All these cumulative measures refer to war, not as actually existing, but only as a future possibility. Meanwhile there were “existing differences” only. Finally, on the 14th of May, 1800, four months before the signature of the Convention, and when the plenipotentiaries on each side were at a dead-lock, another Act was passed, authorizing the abandonment of the military preparations set on foot in contemplation of the contingency of war.[225]Such is a synopsis of testimony from Congressional legislation. And now, when it is considered that Congress alone, under the Constitution, has power to declare war, that it never made any declaration of war against France, and that throughout this whole period of trouble, in its whole series of acts, it expressly negatived the fact of war, is it not impossible to assert, that, according to the understanding of our Government, war actually existed? What Congress did, and what it failed to do, answer in the affirmative.

The declarations of the Executive are as explicit as the declarations of Congress. In the instructions to our plenipotentiaries, under date of October 22, 1799, the Secretary of State, after mentioning the spoliations of France, says:“This conduct of the French Republic would well have justified an immediate declaration of war on the part of the United States; but,desirous of maintaining peace, and still willing to leave open the door of reconciliation with France,the United States contented themselves with preparations for defenceand measures calculated to protect their commerce.”[226]These plenipotentiaries declared to the French, under date of April 11, 1800, that the Acts of Congress, “far from contemplating a coöperation with the enemies of the Republic, did not even authorize reprisals upon her merchantmen, but were restricted solely to the giving of safety to their own, till a moment should arrive when their sufferings could be heard and redressed.”[227]Again, in a despatch to our minister in England, under date of September 20, 1800, the Secretary of State, who was none other than John Marshall, says: “The aggressions sometimes of one and sometimes of another belligerent power have forced usto contemplate and to prepare for war as a probable event”:[228]not as an actual event already arrived, but only as a probable event. In the face of such declarations, who can say that war existed?

On the part of France the declarations are equally explicit. It is true, that, on the 12th September, 1800, in conversation, the French plenipotentiaries let drop fitful words, to the effect, that, “if the question could be determined by an indifferent nation, such a tribunal would say that the present state of things was war on the side of America, and that no indemnities could be claimed.”[229]But the context shows, that, to avoid the payment of these indemnities, they were driven to every possible subterfuge; and the whole suggestion iscontrary to all the admissions of the French Government, both in the executive and legislative branches. Indeed, these very plenipotentiaries of France, in a formal communication to the American plenipotentiaries, under date of August 11, 1800, declared that “the state of misunderstandingwhich has existed for some time between France and the United States, by the act of some agents rather than by the will of the respective Governments,has not been a state of war, at least on the side of France.”[230]We have already seen that it was not on the side of the United States. Then again, under date of December 12, 1801, they contented themselves with characterizing the relations of the two powers at this period as “almost hostile.”[231]At an earlier day, Talleyrand, as Minister of Exterior Relations, had written, under date of August 28, 1798: “France has a double motive, as a nation and as a republic, not to expose to any hazard the present existence of the United States. Therefore it never thought of making war against them; …and every contrary supposition is an insult to common sense.”[232]When the Convention, in its final form, was laid before the Legislative Assembly, one of the French plenipotentiaries charged with its vindication announced in a speech, November 26, 1801, that “it had terminatedthe misunderstandingbetween France and America,” which, he said, had become such “that it was necessary the reconciliation should be hastened, if it was desired that itshould not become very difficult.” A report was also made to the Legislative Assembly by M. Adet, formerly French minister to the UnitedStates, in which it is declared: “There had not been any declaration of war. Commissions granted by the President to attack the armed vessels of France are not to be regarded as a declaration of war. The will of the President does not suffice to put America in a state of war. In order to this a positive declaration of Congress is requisite.None has ever existed.” And these legislative documents, so positive in character, are introduced by the learned editor in words which fitly characterize the international relations to which they refer, when he says that “they will serve to make known the causes whichmomentarily disturbed the harmonyof the two states.”[233]True enough. Unhappily, the harmony of the two states was disturbed, but war did not exist.

3. The terms of the Convention, and the final conditions of ratification, also, exclude the idea of war. Although beginning with a declaration that “there shall be a firm, inviolable, and universal peace,” borrowed, in precise words, from Mr. Jay’s treaty with Great Britain, the Convention of 1800 did not purport to be a treaty of peace; nor, indeed, as first executed, did it pretend to settle the questions between the two powers, except by postponing them to “a convenient time.” A war annulling claims could not be treated in this way. The American Senate admitted as much, when it limited the duration of the Convention to eight years, which, had war previously existed, would have turned the Convention into a truce. The First Consul confessed the same, when he added his far-reaching proviso, for which, of course, there would have been no occasion, if the claims of American citizens had beenannulled by war; and again he testified, in his words at St. Helena, where he speaks of this Convention as having “annulled thejust claimswhich America might have made forinjuries done in time of peace.” Thus falls the objection, so often urged, founded on the alleged existence of war. Strange, that, while so utterly untenable, it should gain a single supporter! There is one remark which belongs to the close of this topic. Even if France had affirmed that war existed, yet the United States constantly denied it at the time, both by legislative and executive acts; so that our Government is obviously estopped against its recognition, even if it fails to feel the indecency of such an excuse for any further denial of justice.

The objection that these claims were provided for in the Convention of 1803, for the purchase of Louisiana, is equally groundless. It is difficult to understand how such a pretext was ever made; but the history of this question shows the strange shifts of opposition, especially when without restraint from knowledge of the subject. The most superficial glance shows that the two Conventions related to two different classes of claims. Those abandoned in 1800 were on account of spoliations, and in the nature of “torts.” Those protected in 1803 were “debts.” When it is considered how steadfastly the French plenipotentiaries in 1800 opposed the recognition of the claim for “torts,” and how the First Consul, by his positive proviso, required their renunciation, it is most unreasonable to assumethat in 1803 they were formally recognized. This assumption becomes still more unreasonable, when it is understood that only at a comparatively recent period was the idea first broached; that it is without support in the documentary history of the Convention, or in any contemporary opinion; that it escaped the attention of the Board of Commissioners appointed under the Convention, as it escaped the attention of successive Secretaries of State, and also of Congressional Committees, reporting on the subject, until thus tardily it was brought forward as a last resort of opposition.

The Convention of 1800, which sacrificed the claim for “torts,” kept alive certain pending claims for “debts.”

“Art. V.Thedebts contractedby one of the two nations with individuals of the other, or by the individuals of one with the individuals of the other,shall be paid, or the payment may be prosecuted, in the same manner as if there had been no misunderstanding between the two states.But this clause shall not extend to indemnities claimed on account of captures or confiscation.”[234]

It will be observed how carefully the claims for spoliation were excluded from the benefit of this provision, which is limited positively to “debts.” Though apparently plain, the French Government found difficulties in its execution. Vexatious delays were interposed, and “debts” were treated little better than “claims,” so that our minister at Paris, Hon. Robert R. Livingston, was constrained to address the French Government, under date of March 25, 1802:“The fifth article of the treaty says, expressly, they shall be paid; but justice and good faith say it, independent of the treaty. Yet they remain unsatisfied; nor is the most distant hope as yet afforded them of when or how they will be paid.”[235]Such was the spirit of other correspondence. At last, by one and the same transaction, Louisiana was purchased, and these “debts” were provided for. The plenipotentiaries of the United States, Mr. Livingston and Mr. Monroe,—the latter for a second time plenipotentiary,—undertook to pay eighty millions of francs for the purchase, of which sixty millions were for France, and the remaining twenty millions for the payment of “debts” secured by the Convention of 1800; and these terms were embodied in a treaty and two associate conventions of the same date.

The treaty contained the terms of cession. One of the conventions regulated the terms of purchase, and the other provided that “the debtsdue by France to citizens of the United States,contracted before the 30th September, 1800, shall be paid” according to certain regulations. It will be observed that these words descriptive of the “debts” are not unlike those employed in the fifth article of the Convention of 30th September, 1800.

The new Convention regulating the payment of “debts” begins with a preamble, setting forth the desire of the President and of the First Consul, “in compliance with the second and fifth articlesof the Convention of the 30th September, 1800, to secure the payment of the sum due by France to the citizens of the United States.” From the association of these two articles some hastily infer a purpose to revivethe “claims” abandoned in the famous second article. But such revival, instead of being “in compliance” with that article, or, according to the corresponding French words of the Convention,en exécutionof that article, would be in direct contradiction of it. The allusion to the second article is obviously to carry into the Louisiana Convention the original exclusion of the spoliation “claims.” If any doubt could arise on this allusion, taken by itself, it would disappear, when we consider that the fifth article is bothinclusiveandexclusive. It includes “debts contracted,” which are to be paid, and it excludes “indemnities claimed on account of captures or confiscations,” which are not to be paid. Thus the language of the preamble is justified, and the Convention isin compliancewith both the second and fifth articles of the original Convention.

If we examine the Louisiana Convention carefully, we find that “debts” alone are provided for. The first article, as we have already seen, declares, “the debtsdue by France to citizens of the United States, contracted before the 30th September, 1800, shall be paid according to the following regulations.” The second article describes “the debtsprovided for by the preceding article” as comprised in a conjectural note. The third article declares how “the said debts shall be discharged by the United States.” The fourth article more specifically definesthe debtsas follows:“It is expressly agreed that the preceding articles shall comprehendno debtsbut such as are due to citizens of the United States who have been and are yet creditors of France, forsupplies, forembargoes, andprizes made at seain which the appeal has been properly lodged within the time mentioned in the said Convention, 30th September, 1800.” The fifth article explains further the prizes intended in the fourth article, as follows: “The preceding articles shall apply only, 1st, to captures of which the Council of Prizes shall have ordered restitution, it being well understood that the claimant cannot have recourse to the United States otherwise than he might have had to the Government of the French Republic, and only in case of insufficiency of the captors; 2d,the debtsmentioned in the said fifth article of the Convention of 1800, the payment of which has been heretofore claimed of the actual Government of France, and for which the creditors have a right to the protection of the United States. The said fifth article does not comprehend prizes whose condemnation has been or shall be confirmed.” Under the first head, the class of captures is here defined. It was those only where the Council of Prizes had ordered restitution, being captures not warranted by the laws of France. Such cases were included among “debts,” because the decree of the Council of Prizes ordering restitution instantly created, on the part of the owner, a claim on the captor for the property or its value; and where the captor was “insufficient,” the Government assumed the debt.And this is the only class of captures provided for in the Louisiana Convention. Under the second head are specified “the debtsmentioned in the fifth article,” with an express declaration that it “does not comprehend prizes whose condemnation has been or shall be confirmed.” Thus in every article and at every stage the spoliation claims are excluded from the benefit of the Louisiana Convention.

Such was the contemporary conclusion of our minister at Paris, Mr. Livingston, who, in his letter to the French Government of April 17, 1802, said: “The fifth article expressly stipulates thatall debtsdue by either Government to the individuals of the other shall be paid. But as this would also have includedthe indemnities for captures and condemnations previously made, and it was the intention of the contracting parties, by the second article, to preclude this payment, as depending on a future negotiation,it was necessary to except from this promise of payment all that made the subject of the second article: … as to the payment of indemnities for embargoes in consequence of the cargoes being put in requisition, or with a view to any other political measure which carried with it nothing hostile to the United States, no controversy ever arose between the plenipotentiaries of the two nations.”[236]

Surely this objection may be dismissed.

Another objection has been started, kindred to the last, also in kindred ignorance. It is said that these claims were embraced in the later Convention of 1831 with France, under Louis Philippe. No mistake can be greater.

That Convention opens with these words:“The French Government,in order to liberate itself completely from all the reclamations preferred against it by citizens of the United Statesfor unlawful seizures, captures, sequestrations, confiscations, or destructions of their vessels, cargoes, or other property, engages to pay a sum of twenty-five millions of francs to the Government of the United States, who shall distribute itamong those entitled, in the manner and according to the rules which it shall determine.”[237]

This provision must be interpreted in the light of preceding treaties, especially of that which had occupied so much attention. They are allin pari materia, and therefore, according to a familiar rule of jurisprudence, must be taken together. But the Convention of 1800, by the proviso of the First Consul at its ratification,liberated France completelyfrom all liability for the claims now in question, so that they ceased to be valid against her. Therefore these claimants could not be “among thoseentitled” under the later Convention. This interpretation is confirmed by the judgment of the French Government, and also by the judgment of our own Commissioners under the Convention. Mr. Rives, our minister at Paris, writing to Mr. Van Buren, the Secretary of State at the time, under date of February 18, 1831, says: “From what I have been able to learn of ——’s report, it is favorable throughout to the principle of our claims. It excludes, however, the claims of American citizens in the nature of debt or of supplies, as being alien to the general scope of the controversy between the two Governments,—and also American claims of every description originating previous to the date of the Louisiana arrangement, in 1803, which has been invariably alleged by this Government to be in full satisfaction of all claims then existing.”[238]

Our own Commissioners, sitting at Washington, reported to the Secretary of State, under date of December 30, 1835, that they had required every person seekingto entitlehimself under the Convention to show that his “claim remained unimpaired and in full force against France at the date of the Convention of 1831.”[239]But the claims in question did not come within this category. Clearly, they were not “unimpaired and in full force against France.”

All this is apparent on the face; but it was demonstrated by the action of the Commissioners. The experiment was made with regard to captures prior to the ratification of the Convention of 1800, and no less than one hundred and four cases were submitted to the board. All but four were rejected. The first rejections, in point of time, were January 11, 1833, in two different cases, when we have the following entries: “Caroline, captured February 10, 1798,—rejected,—the vessel having been captured before the 30th September, 1800”; “Brig Orlando, captured March 1, 1800,—rejected,—the capture having been made anterior to the 30th September, 1800.”[240]The indemnities allowed by the Commissioners were mainly for captures under the decrees of Berlin, Milan, Rambouillet, and Trianon,—that succession of sweeping edicts by which Napoleon at the height of power enforced his Continental system. There were four awards for captures after the signature of the Convention of 1800, and before its ratification. As such cases, occurring during this intermediate period, were plainly saved from the renunciationof the Convention of 1800,[241]and yet were not included in the Convention of 1803, they came naturally within the scope of the Convention of 1831. The claims in question had no such advantage. Renounced in 1800, they were not adopted in 1831. But, ceasing to be claims upon France, they have become claims upon the United States.

Then it is said that the French treaties were annulled by Act of Congress, so as to render the set-off and mutual release a mere form, and nothing else. This objection, also, proceeds in ignorance of the question.

It is true, the United States, by Act of Congress, July 7, 1798, declared the treaties heretofore concluded with Franceno longer obligatory.[242]But the question still remained as to the effect of this Act. Not purporting to be retrospective, all obligations under the treaties at that date were fixed, whether on the part of the United States or on the part of France. Therefore France, besides constant liability under the Law of Nations, was liable also under the treaties for all depredations anterior to this date, and the United States were liable for all non-performance of obligations anterior to this date. Assuming that the treaties were annulled, it is evident that the anterior claims of each were not in any way affected; so that there was still, even under the treaties, occasion for set-off and mutual release.

The depredations upon our commerce were not merely in violation of ancient treaties, but also of the Law of Nations; so that, even if the treaties were annulled, yet the Law of Nations remained with its obligations and remedies. Our plenipotentiaries were instructed to obtain compensation for captures and condemnations contrary to the Law of Nations generally received in Europe, or to stipulations of treaty, so long as the latter “remained in force.” As the treaties “remained in force” until July 7, 1798, we were unquestionably liable to France for indemnities to that day. Before that day the West India islands were lost. Before that day we excluded French privateers and their prizes from our ports. All proper damages for these things must have entered into the French account against us. Therefore the annulling Act of Congress could affect only thequantumof consideration on both sides at the set-off and mutual release, and not the fact of consideration.

But it is more than doubtful if the annulling Act could have the effect attributed to it. Can one of two parties render a contract void by mere declaration to that effect? Between two individuals this cannot be done. Could it be done between two nations? Mr. Jefferson thought not. At least, there is a report from him on another occasion completely covering this case. These are his words:“It is desirable in many instances to exchange mutual advantages by legislative acts rather than by treaty; because the former, though understood to be in consideration of each other, and therefore greatly respected, yet, when they become too inconvenient, can be dropped at the will of either party;whereas stipulations by treaty are forever irrevocable but by joint consent, let a change of circumstances render them ever so burdensome.”[243]Chief Justice Marshall quotes another opinion, where a treaty was declared to be not only the law of the land, but a law of a superior order, “because it not only repeals past laws,but cannot itself be repealed by future ones.”[244]Such authority would seem to settle this question, especially reinforced as it is by the Law of Nations; for it must not be forgotten that the obligation of treaties is determined by International Law rather than by Municipal Law.

Even supposing the Act of Congress had succeeded in annulling the treaties, its effect, as regards France, was not so much to discharge her claims as to make them perfect. In plain terms, it was a final determination on our part not to fulfil the treaties. The circumstances of the time, perhaps, rendered it necessary; but your Committee cannot fail to observe, that, according to all principles of justice and the established usage of nations, this very determination consummated the right of France to indemnities for non-observance of the treaties. On our part there was no longer any pretence to fulfil the treaties; so that this very Act of Congress, which is cited to excuse us, may be cited to condemn us.

Whatever the law of this case, even assuming, that, according to good opinions, the treaties were annulled on the 7th July, 1798, it is perfectly clear that at the negotiation of 1800 they were treated by France as obligatory. On these she founded her counter-claims.The present narrative shows her persistency. As often as our claims were urged, her counter-claims were pressed in reply. And why ask the renunciation of the treaties, if the Act of Congress had already annulled them? Why, further, offer a large sum of money for release from their obligations? Whatever the effect of the annulling Act in the judgment of the American plenipotentiaries, it is clear that they regarded the treaties as a cloud to be removed. And it is equally clear that the French plenipotentiaries to the last maintained the obligations of the treaties. The instructions of the First Consul, before entering upon his Italian campaign, were to make “the acknowledgment of former treaties the basis of negotiation and the condition of compensation.”[245]It was the finality of these instructions which at the time caused the dead-lock already described. Thus, on the part of the United States, the obligation of the treaties was denied subsequently to July 7, 1798, while on the part of France it was affirmed as an indispensable condition down to the negotiation.

Therefore, on the part of the United States, there were claims under the treaties anterior to July 7, 1798, and also under the Law of Nations generally. On the part of France there were counter-claims under the treaties down to the negotiation. Each side was tenacious. Neither would yield. The time for compromise arrived. Then came the set-off and mutual release. The transaction was between two nations, but it was identical in character with transactions often occurring between two individuals.

The persistent efforts of our Government, anterior to the Convention of 1800, are sometimes brought forward as sufficient reason for present indifference. This also is a mistake.

It is true that our Government exerted itself much. Considering its comparative immaturity, it deserves credit for the courage and determination with which it labored. But it must not be forgotten that in all it did, even for the recovery of indemnities, it acted under the duties and instincts of national defence. Our commerce was despoiled, to the detriment of American citizens. But this grievance, which went on assuming larger proportions, proceeded directly from thehostile spiritof France, aroused by alleged infraction of national obligations on our part; so that behind the question of indemnities rose always the question of self-defence. France made reprisals because the United States refused compliance with solemn treaties, and, as is usual in such cases, individual citizens were the sufferers. Defending the interests of its citizens, the country itself was defended. To abandon these interests, especially without securing an abandonment of French pretensions, would have been an abandonment of the country, leaving it the dishonored victim of untold exactions without end. If this be correct,—and your Committee do not see how it can be controverted,—there can be no boast of extraordinary efforts, all of which, whatever form they assumed, were in the performance of a patriotic duty, simple as thefilial devotion of Cordelia, “according to her bond, nor more nor less.”

And now the fidelity of that early day, when duty was done, is the apology for infidelity to-day, when duty is left undone; and those patriotic efforts are vouched as a title to present exemption. Because the Government was zealous for indemnities when France was responsible,argalit may be indifferent now, when the United States are substituted for France. Or has it come to this,—that it is right to be zealous in pressing a foreign Government, but not right to be zealous against ourselves,when substituted for that foreign Government, as in the present case? Beyond the misconception of public duty apparent in this pretence, it forgets the true state of the question. Here, again, we are brought to the Convention of 1800, when both claims and counter-claims were adjusted. If the claims on our side had been deliberately rejected, or if our Government had been compelled to withdraw, as in a case of nonsuit, the case might have been otherwise. There was no rejection, and no nonsuit, but, as has been so fully shown, a set-off and mutual release, by which each party accorded to its adversary just as much as it claimed for itself. So far as the two Governments were concerned, claims and counter-claims were extinguished, and neither could look to the other; but it did not follow that American citizens, whose “individual” claims had been appropriated to extinguish “national” obligations, were cut off from appeal to their own Government. On the contrary, the very zeal for these claimants, while they looked to France, is still due in their behalf, now that, by the action of their own Government, they must look to their country.

It is sometimes said in sarcasm that it is easy to be generous at the expense of another; but in this case, now that the responsibility has been transferred to our own country, it is not a question of generosity, but of debt. The property of these claimants is actually in the hands of our Government, like assets paid over and deposited “for whomsoever it may concern,”—or, to use a more pungent illustration, like certain property to which there can be no valid title against the original owner. Stolen goods may be followed wherever found. But the vessels of these claimants were stolen by France, and at last are found in the hands of our own Government. Will the Government hold them against the real owners? For nearly ten years it denounced the conduct of France. How, then, can it profit by this conduct at the expense of its own citizens? If the receiver is as bad as the original offender, how can the Government expect to escape the indignant condemnation it fastened upon France? Least of all, how can any early persistency to recover this property excuse its detention now?

Kindred to the last objection is the assertion that the claims were intrinsically desperate, so as to be of no value,—an objection as humiliating as false.

It is humiliating, because it assumes that claims solemnly declared just, both by the executive and legislative branches,—the former by successive acts of diplomacy, and the latter by successive Acts of Congress,—were of “no value.” If this were true,then was our Government, when it sued these claims, guilty of nationalbarratry, for which it would deserve to be thrown over the bar of nations. It was a stirrer of false suits. Such an imputation is an impeachment of the national character.

But it is false. The claims were never “desperate,” except so far as they were doomed to meet the counter-claims of France. On the contrary, they were intrinsically just, and their justice was often admitted even by France, who advanced against them her own pretensions under the treaties. And when the set-off and mutual release occurred, their validity was solemnly recognized; nay, more, they were paid to the United States. Such is the inconsistency of objectors, insisting that claims thus recognized and paid were so far “desperate” as to be of “no value,” when they were of sufficient value to form the sole consideration of release from immeasurable national obligations. If you would find a measure of value for the American claims, you must look to the counter-claims of France, not forgetting that all the vehemence with which these were sustained testifies unmistakably to our claims.

If we may judge from our national history, there is no reason to doubt that these claims, if not released by our Government, would have been fully satisfied by France afterwards. It is in the nature of claims on foreign powers to seem desperate. Such was the case, as is well remembered, with the claims on Denmark, on Spain, and on Naples; but all these have been paid.No just claim by the American Government can be desperate.What claims could seem more desperate than those under the arbitrary, wide-spreading edicts of Napoleon Bonaparte in his pride of place? But PresidentJackson, when Louis Philippe had become King, made an appeal, as he expressed it, “to the justice and magnanimity of regenerated France,”[246]and even these claims, accruing under a Government which had ceased to exist, were satisfied. The claims in question had as much intrinsic equity, and were more intimately associated with the national sentiments. Asserting that they would have been paid, the Committee are sustained not only by the reason of the case, but by the judgment of the disinterested historian of our country, who thus concludes his account of the Convention of 1800, and its final ratification with the proviso of the First Consul:—

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