"Mr. Wright understood the friends of this bill to put its merits upon the single and distinct ground that the government of the United States had released France from the payment of the claims for a consideration, passing directly to the benefit of our government, and fully equal in value to the claims themselves. Mr. W. said he should argue the several questions presented, upon the supposition that this was the extent to which the friends of the bill had gone, or were disposed to go, in claiming a liability on the part of the United States to pay the claimants; and, thus understood, he was ready to proceed to an examination of the strength of this position."His first duty, then, was to examine the relations existing between France and the United States prior to the commencement of the disturbances out of which these claims have arisen; and the discharge of this duty would compel a dry and uninteresting reference to the several treaties which, at that period, governed those relations."The seventeenth article of the treaty of amity and commerce of the 6th February, 1778, was the first of these references, and that article was in the following words:"'Art. 17.It shall be lawful for the ships of war of either party, and privateers, freely to carry whithersoever they please the ships and goods taken from their enemies, without being obliged to pay any duty to the officers of the admiralty or any other judges; nor shall such prizes be arrested or seized when they come to or enter the ports of either party; nor shall the searchers or other officers of those places search the same, or make examination concerning the lawfulness of such prizes; but they may hoist sail at any time and depart and carry their prizes to the places expressed in their commissions, which the commanders of such ships of war shall be obliged to show; on the contrary, no shelter or refuge shall be given in their ports to such as shall have made prize of the subjects, people, or property of either of the parties; but if such shall come in, being forced by stress ofweather, or the danger of the sea, all proper means shall be vigorously used, that they go out and retire from thence as soon as possible.'"This article, Mr. W. said, would be found to be one of the most material of all the stipulations between the two nations, in an examination of the diplomatic correspondence during the whole period of the disturbances, from the breaking out of the war between France and England, in 1793, until the treaty of the 30th September, 1800. The privileges claimed by France, and the exclusions she insisted on as applicable to the other belligerent Powers, were fruitful sources of complaint on both sides, and constituted many material points of disagreement between the two nations through this entire interval. What these claims were on the part of France, and how far they were admitted by the United States, and how far controverted, will, Mr. W. said, be more properly considered in another part of the argument. As connected, however, with this branch of the relations, he thought it necessary to refer to the twenty-second article of the same treaty, which was in the following words:"'Art. 22.It shall not be lawful for any foreign privateers, not belonging to subjects of the Most Christian King, nor citizens of the said United States, who have commissions from any other prince or State in enmity with either nation, to fit their ships in the ports of either the one or the other of the aforesaid parties, to sell what they have taken, or in any other manner whatsoever to exchange their ships, merchandises, or any other lading; neither shall they be allowed even to purchase victuals, except such as shall be necessary for their going to the next port of that prince or State from which they have commissions.'"Mr. W. said he now passed to a different branch of the relations between the two countries, as established by this treaty of amity and commerce, which was the reciprocal right of either to carry on a free trade with the enemies of the other, restricted only by the stipulations of the same treaty in relation to articles to be considered contraband of war. This reciprocal right is defined in the twenty-third article of the treaty, which is in the words following:"'Art. 23.It shall be lawful for all and singular the subjects of the Most Christian King, and the citizens, people, and inhabitants of the said United States, to sail with their ships with all manner of liberty and security, no distinction being made who are the proprietors of the merchandises laden thereon, from any port to the places of those who now are or hereafter shall be at enmity with the Most Christian King, or the United States. It shall likewise be lawful for the subjects and inhabitants aforesaid to sail with the ships and merchandises aforementioned, and to trade with the same liberty and security from the places, ports, and havens of those who are enemies of both or either party, without any opposition or disturbance whatsoever, not only directly from the places of the enemy aforementioned to neutral places, but also from one place belonging to an enemy to another place belonging to an enemy, whether they be under the jurisdiction of the same prince, or under several. And it is hereby stipulated that free ships shall also give a freedom to goods, and that every thing shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading, or any part thereof, should appertain to the enemies of either, contraband goods being always excepted. It is also agreed, in like manner, that the same liberty be extended to persons who are on board a free ship, with this effect, that although they be enemies to both or either party, they are not to be taken out of that free ship, unless they are soldiers and in actual service of the enemies.'"The restrictions as to articles to be held between the two nations as contraband of war, Mr. W. said, were to be found in the twenty-fourth article of this same treaty of amity and commerce, and were as follows:"'Art.24. This liberty of navigation and commerce shall extend to all kinds of merchandises, excepting those only which are distinguished by the name of contraband, and under this name of contraband, or prohibited goods, shall be comprehended arms, great guns, bombs, with fuses and other things belonging to them, cannon ball, gunpowder, match, pikes, swords, lances, spears, halberds, mortars, petards, grenades, saltpetre, muskets, musket ball, helmets, breastplates, coats of mail, and the like kinds of arms proper for arming soldiers, musket rests, belts, horses with their furniture, and all other warlike instruments whatever. These merchandises which follow shall not be reckoned among contraband or prohibited goods; that is to say, all sorts of cloths, and all other manufactures woven of any wool, flax, silk, cotton, or any other material whatever; all kinds of wearing apparel, together with the species whereof they are used to be made; gold and silver, as well coined as uncoined: tin, iron, latten, copper, brass, coals; as also wheat and barley, and any other kind of corn and pulse: tobacco, and likewise all manner of spices; salted and smoked flesh, salted fish, cheese, and butter, beer, oils, wines, sugars, and all sorts of salts; and, in general, all provisions which serve for the nourishment of mankind, and the sustenance of life; furthermore, all kinds of cotton, hemp, flax, tar, pitch, ropes, cables, sails, sail cloths, anchors, and any part of anchors, also ships' masts, planks, boards, and beams, of what trees soever; and all other things proper either for building or repairing ships, and all other goods whatever which have not been worked into the form of any instrument or thing prepared for war by land or by sea, shall not be reputed contraband, much less such as have been already wrought and made up for any other use; all which shall be wholly reckoned among free goods; as likewise all other merchandises andthings which are not comprehended and particularly mentioned in the foregoing enumeration of contraband goods, so that they may be transported and carried in the freest manner by the subjects of both confederates, even to the places belonging to an enemy, such towns or places being only excepted as are at that time besieged, blocked up, or invested.'"Mr. W. said this closed his references to this treaty, with the remark, which he wished carefully borne in mind, that the accepted public law was greatly departed from in this last article. Provisions, in their broadest sense, materials for ships, rigging for ships, and indeed almost all the articles of trade mentioned in the long exception in the article of the treaty, were articles contraband of war by the law of nations. This article, therefore, placed our commerce with France upon a footing widely different, in case of a war between France and any third power, from the rules which would regulate that commerce with the other belligerent, with whom we might not have a similar commercial treaty. Such was its effect as compared with our relations with England, with which power we had no commercial treaty whatever, but depended upon the law of nations as our commercial rule and standard of intercourse."Mr. W. said he now passed to the treaty of alliance between France and the United States, of the same date with the treaty of amity and commerce before referred to, and his first reference was to the 11th article of this latter treaty. It was in the following words:"'Art.11. The two parties guarantee mutually from the present time, and for ever, against all other powers, to wit: The United States to His Most Christian Majesty the present possessions of the Crown of France in America, as well as those which it may acquire by the future treaty of peace: And His Most Christian Majesty guarantees on his part to the United States, their liberty, sovereignty, and independence, absolute and unlimited, as well in matters of government as commerce, and also their possessions, and the additions or conquests that their confederation may obtain during the war, from any of the dominions now or heretofore possessed by Great Britain in North America, conformable to the fifth and sixth articles above written, the whole as their possessions shall be fixed and assured to the said States at the moment of the cessation of their present war with England.'"This article, Mr. W. said, was the most important reference he had made, or could make, so far as the claims provided for by this bill were concerned, because he understood the friends of the bill to derive the principal consideration to the United States, which created their liability to pay the claims, from the guaranty on the part of the United States contained in it. The Senate would see that the article was a mutual and reciprocal guaranty, 1st. On the part of the United States to France, of her possessions in America; and 2d. On the part of France to the United States, of their 'liberty, sovereignity, and independence, absolute and unlimited, as well in matters of government as commerce, and also their possessions,' &c.; and that the respective guarantees were 'for ever.' It would by-and-by appear in what manner this guaranty on the part of our government was claimed to be the foundation for this pecuniary responsibility for millions, but at present he must complete his references to the treaties which formed the law between the two nations, and the rule of their relations to and with each other. He had but one more article to read, and that was important only as it went to define the one last cited. This was the 12th article of the treaty of alliance, and was as follows:"'Art.12. In order to fix more precisely the sense and application of the preceding article, the contracting parties declare that, in case of a rupture between France and England, the reciprocal guaranty declared in the said article shall have its full force and effect the moment such war shall break out; and if such rupture shall not take place, the mutual obligations of the said guaranty shall not commence until the moment of the cessation of the present war between the United States and England shall have ascertained their possessions.'"These, said Mr. W., are the treaty stipulations between France and the United States, existing at the time of the commencement of the disturbances between the two countries, which gave rise to the claims now the subject of consideration, and which seem to bear most materially upon the points in issue. There were other provisions in the treaties between the two governments more or less applicable to the present discussion, but, in the course he had marked out for himself, a reference to them was not indispensable, and he was not disposed to occupy the time or weary the patience of the Senate with more of these dry documentary quotations than he found absolutely essential to a full and clear understanding of the points he proposed to examine."Mr. W. said he was now ready to present the origin of the claims which formed the subject of the bill. The war between France and England broke out, according to his recollection, late in the year 1792, or early in the year 1793, and the United States resolved upon preserving the same neutral position between those belligerents, which they had assumed at the commencement of the war between France and certain other European powers. This neutrality on the part of the United States seemed to be acceptable to the then French Republic, and her minister in the United States and her diplomatic agents at home were free and distinct in their expressions to this effect."Still that Republic made broad claims under the 17th article of the treaty of amity and commerce before quoted, and her minister here assumed the right to purchase ships, arm them as privateers in our ports, commission officers for them, enlist our own citizens to man themand, thus prepared, to send them from our ports to cruise against English vessels upon our coast. Many prizes were made, which were brought into our ports, submitted to the admiralty jurisdiction conferred by the French Republic upon her consuls in the United States, condemned, and the captured vessels and cargoes exposed for sale in our markets. These practices were immediately and earnestly complained of by the British government as violations of the neutrality which our government had declared, and which we assumed to maintain in regard to all the belligerents, as favors granted to one of the belligerents, not demandable of right under our treaties with France, and as wholly inconsistent, according to the rules of international law, with our continuance as a neutral power. Our government so far yielded to these complaints as to prohibit the French from fitting out, arming, equipping, or commissioning privateers in our ports, and from enlisting our citizens to bear arms under the French flag."This decision of the rights of France, under the treaty of amity and commerce, produced warm remonstrances from her minister in the United States, but was finally ostensibly acquiesced in by the Republic, although constant complaints of evasions and violations of the rule continued to harass our government, and to occupy the attention of the respective diplomatists."The exclusive privilege of our ports for her armed vessels, privateers, and their prizes, granted to France by the treaty of amity and commerce, as has before been seen, excited the jealousy of England, and she was not slow in sending a portion of her vast navy to line our coast and block up our ports and harbors. The insolence of power induced some of her armed vessels to enter our ports, and to remain, in violation of our treaty with France, though not by the consent of our government, or when we had the power to enforce the treaty by their ejection. These incidents, however, did not fail to form the subject of new charges from the French ministers, of bad faith on our part, of partiality to England to the prejudice of our old and faithful ally, of permitted violations of the treaties, and of an inefficiency and want of zeal in the performance of our duties as neutrals. To give point to these complaints, some few instances occurred in which British vessels brought their prizes into our ports, whether in all cases under those casualties of stress of weather, or the dangers of the sea, which rendered the act in conformity with the treaties and the law of nations or not, is not perhaps very certain or very material, inasmuch as the spirit of complaint seems to have taken possession of the French negotiators, and these acts gave colorable ground to their remonstrances."Contemporaneously with these grounds of misunderstanding and these collisions of interest between the belligerents, and between the interests of either of them and the preservation of our neutrality, the French began to discover the disadvantages to them, and the great advantages to the British, of the different rules which governed the commerce between the two nations and the United States. The rule between us and France was the commercial treaty of which the articles above quoted form a part, and the rule between us and Great Britain, was that laid down by the law of nations. Mr. W. said he would detain the Senate to point out but two of the differences between these rules of commerce and intercourse, because upon these two principally depended the difficulties which followed. The first was, that, by the treaty between us and France, 'free ships shall also give a freedom to the goods; and every thing shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading, or any part thereof, should appertain to the enemy of either, contraband goods being always excepted;' while the law of nations, which was the rule between us and England, made the goods of an enemy a lawful prize, though found in the vessel of a friend. Hence it followed that French property on board of an American vessel was subject to capture by British cruisers without indignity to our flag, or a violation to international law, while British property on board of an American vessel could not be captured by a French vessel without an insult to the flag of the United States, and a direct violation of the twenty-third article of the treaty of amity and commerce between us and France, before referred to."Mr. W. said the second instance of disadvantage to France which he proposed to mention, was the great difference between the articles made contraband of war by the twenty-fourth article of the treaty of amity and commerce, before read to the Senate, and by the law of nations. By the treaty, provisions of all kinds, ship timber, ship tackle (guns only excepted), and a large list of other articles of trade and commerce, were declared not to be contraband of war, while the same articles are expressly made contraband by the law of nations. Hence an American vessel, clearing for a French port with a cargo of provisions or ship stores, was lawful prize to a British cruiser, as, by the law of nations, carrying articles contraband of war to an enemy, while the same vessel, clearing for a British port, with the same cargo, could not be captured by a French vessel, because the treaty declared that the articles composing the cargo should not be contraband as between the United States and France. Mr. W. said the Senate would see, at a single glance, how eminently these two advantages on the part of Great Britain were calculated to turn our commerce to her ports, where, if the treaty between us and France was observed, our vessels could go in perfect safety, while, laden with provisions, our only considerable export, and destined for a French port, they were liable to capture, as carrying to an enemy contraband articles. Upontheir return, too, they were equally out of danger from French cruisers, as, by the treaty, free ships made free the goods on board; while, if they cleared from a port in France with a French cargo, they were lawful prize to the British, upon the principle of the law of nations, that the goods of an enemy are lawful prize, even when found in the vessel of a friend."Both nations were in constant and urgent want of provisions from the United States; and this double advantage to England of having her ports open and free to our vessels, and of possessing the right to capture those bound to French ports, exasperated the French Republic beyond endurance. Her ministers remonstrated with our government, controverted our construction of British rights, again renewed the accusations of partiality, and finally threw off the obligations of the treaty; and, by a solemn decree of their authorities at home, established the rule which governed the practice of the British cruisers. France, assuming to believe that the United States permitted the neutrality of her flag to be violated by the British, without resistance, declared that she would treat the flag of all neutral vessels as that flag should permit itself to be treated by the other belligerents. This opened our commerce to the almost indiscriminate plunder and depredation of all the powers at war, and but for the want of the provisions of the United States, which was too strongly felt both in England and France not to govern, in a great degree, the policy of the two nations, it would seem probable, from the documentary history of the period, that it must have been swept from the ocean. Impelled by this want, however, the British adopted the rule, at an early day, that the provisions captured, although in a strict legal sense forfeited, as being by the law of nations contraband, should not be confiscated, but carried into English ports, and paid for, at the market price of the same provisions, at the port of their destination. The same want compelled the French, when they came to the conclusion to lay aside the obligations of the treaty, and to govern themselves, not by solemn compacts with friendly powers, but by the standards of wrong adopted by their enemies, to adopt also the same rule, and instead of confiscating the cargo as contraband of war, if provisions, to decree a compensation graduated by the market value at the port of destination."Such, said Mr. W., is a succinct view of the disturbances between France and the United States, and between France and Great Britain, out of which grew what are now called the French claims for spoliations upon our commerce, prior to the 30th of September, 1800. Other subjects of difference might have had a remote influence; but, Mr. W. said, he believed it would be admitted by all, that those he had named were the principal, and might be assumed as having given rise to the commercial irregularities in which the claims commenced. This state of things, without material change, continued until the year 1798, when our government adopted a course of measures intended to suspend our intercourse with France, until she should be brought to respect our rights. These measures were persevered in by the United States, up to September, 1800, and were terminated by the treaty between the two nations of the 30th of that month. Here, too, terminated claims which now occupy the attention of the Senate."As it was the object of the claimants to show a liability, on the part of our government, to pay their claims, and the bill under discussion assumed that liability, and provided, in part at least, for the payment, Mr. W. said it became his duty to inquire what the government had done to obtain indemnity for these claimants from France, and to see whether negligence on its part had furnished equitable or legal ground for the institution of this large claim upon the national treasury. The period of time covered by the claims, as he understood the subject, was from the breaking out of the war between France and England, in 1793, to the signing of the treaty between France and the United States, in September, 1800; and he would consider the efforts the government had made to obtain indemnity:"1st. From 1793 to 1798."2d. From 1798 to the treaty of the 30th September, 1800."During the first period, Mr. W. said, these efforts were confined to negotiation, and he felt safe in the assertion that, during no equal period in the history of our government, could there be found such untiring and unremitted exertions to obtain justice for citizens who had been injured in their properties by the unlawful acts of a foreign power. Any one who would read the mass of diplomatic correspondence between this government and France, from 1793 to 1798, and who would mark the frequent and extraordinary missions, bearing constantly in mind that the recovery of these claims was the only ground upon our part for the whole negotiation, would find it difficult to say where negligence towards the rights and interests of its citizens is imputable to the government of the United States, during this period. He was not aware that such an imputation had been or would be made; but sure he was that it could not be made with justice, or sustained by the facts upon the record. No liability, therefore, equitable or legal, had been incurred, up to the year 1798."And if, said Mr. W., negligence is not imputable, prior to 1798, and no liability had then been incurred, how is it for the second period, from 1798 to 1800? The efforts of the former period were negotiation—constant, earnest, extraordinary negotiation. What were they for the latter period? His answer was, war; actual, open war; and he believed the statute book of the United States would justify him in the position. He was well aware that this point wouldbe strenuously controverted, because the friends of the bill would admit that, if a state of war between the two countries did exist, it put an end to claims existing prior to the war, and not provided for in the treaty of peace, as well as to all pretence for claims to indemnity for injuries to our commerce, committed by our enemy in time of war. Mr. W. said he had found the evidences so numerous, to establish his position that a state of actual war did exist, that he had been quite at a loss from what portion of the testimony of record to make his selections, so as to establish the fact beyond reasonable dispute, and at the same time not to weary the Senate by tedious references to laws and documents. He had finally concluded to confine himself exclusively to the statute book, as the highest possible evidence, as in his judgment entirely conclusive, and as being susceptible of an arrangement and condensation which would convey to the Senate the whole material evidence, in a satisfactory manner, and in less compass than the proofs to be drawn from any other source. He had, therefore, made a very brief abstract of a few statutes, which he would read in his place:"By an act of the 28th May, 1798, Congress authorized the capture of all armed vessels of France which had committed depredations upon our commerce, or which should be found hovering upon our coast for the purpose of committing such depredations."By an act of the 13th June, 1798, only sixteen days after the passage of the former act, Congress prohibited all vessels of the United States from visiting any of the ports of France or her dependencies, under the penalty of forfeiture of vessel and cargo; required every vessel clearing for a foreign port to give bonds (the owner, or factor and master) in the amount of the vessel and cargo, and good sureties in half that amount, conditioned that the vessel to which the clearance was to be granted, would not, voluntarily, visit any port of France or her dependencies; and prohibited all vessels of France, armed or unarmed, or owned, fitted, hired, or employed, by any person resident within the territory of the French Republic, or its dependencies, or sailing or coming therefrom, from entering or remaining in any port of the United States, unless permitted by the President, by special passport, to be granted by him in each case."By an act of the 25th June, 1798, only twelve days after the passage of the last-mentioned act, Congress authorized the merchant vessels of the United States to arm, and to defend themselves against any search, restraint, or seizure, by vessels sailing under French colors, to repel force by force to capture any French vessel attempting a search, restraint, or seizure, and to recapture any American merchant vessel which had been captured by the French."Here, Mr. W. said, he felt constrained to make a remark upon the character of these several acts of Congress, and to call the attention of the Senate to their peculiar adaptation to the measures which speedily followed in future acts of the national legislature. The first, authorizing the capture of French armed vessels, was peculiarly calculated to put in martial preparation all the navy which the United States then possessed, and to spread it upon our coast. The second, establishing a perfect non-intercourse with France, was sure to call home our merchant vessels from that country and her dependencies, to confine within our own ports those vessels intended for commerce with France, and thus to withdraw from the reach of the French cruisers a large portion of the ships and property of our citizens. The third, authorizing our merchantmen to arm, was the greatest inducement the government could give to its citizens to arm our whole commercial marine, and was sure to put in warlike preparation as great a portion of our merchant vessels as a desire of self-defence, patriotism, or cupidity, would arm. Could measures more eminently calculated to prepare the country for a state of war have been devised or adopted? Was this the intention of those measures, on the part of the government, and was that intention carried out into action? Mr. W. said he would let the subsequent acts of the Congress of the United States answer; and for that purpose, he would proceed to read from his abstract of those acts:"By an act of the 28th June, 1798, three days after the passage of the act last referred to, Congress authorized the forfeiture and condemnation of all French vessels captured in pursuance of the acts before mentioned, and provided for the distribution of the prize money, and for the confinement and support, at the expense of the United States, of prisoners taken in the captured vessels."By an act of the 7th July, 1798, nine days after the passage of the last-recited act, Congress declared 'that the United States are of right freed and exonerated from the stipulations of the treaties and of the consular convention heretofore concluded between the United States and France; and that the same shall not henceforth be regarded as legally obligatory on the government or citizens of the United States.'"By an act of the 9th July, 1798, two days after the passage of the act declaring void the treaties, Congress authorized the capture, by the public armed vessels of the United States, of all armed French vessels, whether within the jurisdictional limits of the United States or upon the high seas, their condemnation as prizes, their sale, and the distribution of the prize money; empowered the President to grant commissions to private armed vessels to make the same captures, and with the same rights and powers, as public armed vessels; and provided for the safe keeping and support of the prisoners taken, at the expense of the United States."By an act of the 9th February, 1799, Congress continued the non-intercourse between theUnited States and France for one year, from the 3d of March, 1799."By an act of the 28th February, 1799, Congress provided for an exchange of prisoners with France, or authorized the President, at his discretion, to send to the dominions of France, without an exchange, such prisoners as might remain in the power of the United States."By an act of the 3d March, 1799, Congress directed the President, in case any citizens of the United States, taken on board vessels belonging to any of the powers at war with France, by French vessels, should be put to death, corporally punished, or unreasonably imprisoned, to retaliate promptly and fully upon any French prisoners in the power of the United States."By an act of the 27th February, 1800, Congress again continued the non-intercourse between us and France, for one year, from the 3d of March, 1800."Mr. W. said he had now closed the references he proposed to make to the laws of Congress, to prove that war—actual war—existed between the United States and France, from July, 1798, until that war was terminated by the treaty of the 30th of September, 1800. He had, he hoped, before shown that the measures of Congress, up to the passage of the act of Congress of the 25th of June, 1798, and including that act, were appropriate measures preparatory to a state of war; and he had now shown a total suspension of the peaceable relations between the two governments, by the declaration of Congress that the treaties should no longer be considered binding and obligatory upon our government or its citizens. What, then, but war could be inferred from an indiscriminate direction to our public armed vessels, put in a state of preparation, by preparatory acts, to capture all armed French vessels upon the high seas, and from granting commissions to our whole commercial marine, also armed by the operation of previous acts of Congress, authorizing them to make the same captures, with regulations applicable to both, for the condemnation of the prizes, the distribution of the prize money, and the detention, support, and exchange of the prisoners taken in the captured vessels? Will any man, said Mr. W., call this a state of peace?"[Here Mr. Webster, chairman of the select committee which reported the bill, answered, 'Certainly.']"Mr. W. proceeded. He said he was not deeply read in the treatises upon national law, and he should never dispute with that learned gentleman upon the technical definitions of peace and war, as given in the books; but his appeal was to the plain sense of every senator and every citizen of the country. Would either call that state of things which he had described, and which he had shown to exist from the highest of all evidence, the laws of Congress alone, peace? It was a state of open and undisguised hostility, of force opposed to force, of war upon the ocean, as far as our government were in command of the means to carry on a maritime war. If it was peace, he should like to be informed, by the friends of the bill, what would be war. This was violence and bloodshed, the power of the one nation against the power of the other, reciprocally exhibited by physical force."Couple with this the withdrawal by France of her minister from this government, and her refusal to receive the American commission, consisting of Messrs. Marshall, Pinckney, and Gerry, and the consequent suspension of negotiations between the two governments, during the period referred to; and Mr. W. said, if the facts and the national records did not show a state of war, he was at a loss to know what state of things between nations should be called war."If, however, the Senate should think him wrong in this conclusion, and that the claims were not utterly barred by war, he trusted the facts disclosed in this part of his argument would be considered sufficient at least to protect the faith of the government in the discharge of its whole duty to its citizens; and that after it had carried on these two years of war, or, if not war, of actual force and actual fighting, in which the blood of its citizens had been shed, and their lives sacrificed to an unknown extent, for the single and sole purpose of enforcing these claims of individuals, the imputation of negligence, and hence of liability to pay the claims, would not be urged as growing out of this portion of the conduct of the government."Mr. W. said he now came to consider the treaty of the 30th September, 1800, and the reasons which appeared plainly to his mind to have induced the American negotiators to place that negotiation upon the basis, not of an existing war, but of a continued peace. That such was assumed to be the basis of the negotiation, he believed to be true, and this fact, and this fact only, so far as he had heard the arguments of the friends of the bill, was depended upon to prove that there had been no war. He had attempted to show that war in fact had existed, and been carried on for two years; and if he could now show that the inducement, on the part of the American ministers, to place the negotiation which was to put an end to the existing hostilities upon a peace basis, arose from no considerations of a national or political character, and from no ideas of consistency with the existing state of facts, but solely from a desire still to save, as far as might be in their power, the interests of these claimants, he should submit with great confidence that it did not lay in the mouths of the same claimants to turn round and claim this implied admission of an absence of war, thus made by the agents of the government out of kindness to them, and an excess of regard for their interests, as the basis of a liability to pay the damages which they had sustained, and which this diplomatic untruth, like all the previous steps of the government, failed to recover for them. What, then, Mr.President, said Mr. W., was the subject on our part, of the constant and laborious negotiations carried on between the two governments from 1793 to 1798? The claims. What, on our part, was the object of the disturbances from 1798 to 1800—of the non-intercourse—of the sending into service our navy, and arming our merchant vessels—of our raising troops and providing armies on the land—of the expenditure of the millions taken from the treasury and added to our public debt, to equip and sustain these fleets and armies? The claims. Why were our citizens sent to capture the French, to spill their blood, and lay down their lives upon the high seas? To recover the claims. These were the whole matter. We had no other demand upon France, and, upon our part, no other cause of difference with her."What public, or national, or political object had we in the negotiation of 1800, which led to the treaty of the 30th September of that year? None, but to put an end to the existing hostilities, and to restore relations of peace and friendship. These could have been as well secured by negotiating upon a war as a peace basis. Indeed, as there were in our former treaties stipulations which we did not want to revive, a negotiation upon the basis of existing war was preferable, so far as the interests of the government were concerned, because that would put all questions, growing out of former treaties between the parties, for ever at rest. Still our negotiators consented to put the negotiation upon the basis of continued peace, and why? Because the adoption of a basis of existing war would have barred effectually and for ever all classes of the claims. This, Mr. W. said, was the only possible assignable reason for the course pursued by the American negotiators; it was the only reason growing out of the existing facts, or out of the interests, public or private, involved in the difficulties between the two nations. He therefore felt himself fully warranted in the conclusion, that the American ministers preferred and adopted a peace basis for the negotiation which resulted in the treaty of the 30th of September, 1800, solely from a wish, as far as they might be able, to save the interests of our citizens holding claims against France."Did they, Mr. President, said Mr. W., succeed by this artifice in benefiting the citizens who had sustained injuries? He would let the treaty speak for itself. The following are extracts from the 4th and 5th articles:"'Art.4. Property captured, and not yet definitively condemned, or which may be captured before the exchange of ratifications (contraband goods destined to an enemy's port excepted), shall be mutually restored on the following proof of ownership.'"[Here follows the form of proof, when the article proceeds:]"'This article shall take effect from the date of the signature of the present convention. And if, from the date of the said signature, any property shall be condemned contrary to the intent of the said convention, before the knowledge of this stipulation shall be obtained, the property so condemned shall, without delay, be restored or paid for.'"'Art.5. The debts contracted for by one of the two nations with individuals of the other, or by individuals of the one with individuals of the other, shall be paid, or the payment may be prosecuted in the same manner as if there had been no misunderstanding between the two States. But this clause shall not extend to indemnities claimed on account of captures or confiscations.'"Here, Mr. W. said, was evidence from the treaty itself, that, by assuming a peace basis for the negotiation, the property of our merchants captured and not condemned was saved to them, and that certain classes of claimants against the French government were provided for, and their rights expressly reserved. So much, therefore, was gained by our negotiators by a departure from the facts, and negotiating to put an end to existing hostilities upon the basis of a continued peace. Was it, then, generous or just to permit these merchants, because our ministers did not succeed in saving all they claimed, to set up this implied admission of continued peace as the foundation of a liability against their own government to pay what was not recovered from France? He could not so consider it, and he felt sure the country never would consent to so responsible an implication from an act of excessive kindness. Mr. W. said he must not be understood as admitting that all was not, by the effect of this treaty, recovered from France, which she ever recognized to be due, or ever intended to pay. On the contrary, his best impression was, from what he had been able to learn of the claims, that the treaty of Louisiana provided for the payment of all the claims which France ever admitted, ever intended to pay, or which there was the most remote hope of recovering in any way whatever. He should, in a subsequent part of his remarks, have occasion to examine that treaty, the claims which were paid under it, and to compare the claims paid with those urged before the treaty of September, 1800."Mr. W. said he now came to the consideration of the liability of the United States to these claimants, in case it shall be determined by the Senate that a war between France and the United States had not existed to bar all ground of claim either against France or the United States. He understood the claimants to put this liability upon the assertion that the government of the United States had released their claims against France by the treaty of the 30th of September, 1800, and that the release was made for a full and valuable consideration passing to the United States, which in law and equity made it their duty to pay the claims. The consideration passing to the United States is alleged to be their release from the onerous obligations imposedupon them by the treaties of amity and commerce and alliance of 1778, and the consular convention of 1778, and especially and principally by the seventeenth article of the treaty of amity and commerce, in relation to armed vessels, privateers, and prizes, and by the eleventh article of the treaty of alliance containing the mutual guarantees."The release, Mr. W. said, was claimed to have been made in the striking out, by the Senate of the United States, of the second article of the treaty of 30th September, 1800, as that article was originally inserted and agreed upon by the respective negotiators of the two powers, as it stood at the time the treaty was signed. To cause this point to be clearly understood, it would be necessary for him to trouble the Senate with a history of the ratification of this treaty. The second article, as inserted by the negotiators, and as standing at the time of the signing of the treaty, was in the following words:"'Art.2. The ministers plenipotentiary of the two powers not being able to agree, at present, respecting the treaty of alliance of 6th February, 1778, the treaty of amity and commerce of the same date, and the convention of 14th of November, 1788, nor upon the indemnities mutually due or claimed, the parties will negotiate further upon these subjects at a convenient time; and, until they may have agreed upon these points, the said treaties and convention shall have no operation, and the relations of the two countries shall be regulated as follows:'"The residue of the treaty, Mr. W. said, was a substantial copy of the former treaties of amity and commerce, and alliance between the two nations, with such modifications as were desirable to both, and as experience under the former treaties had shown to be for the mutual interests of both."This second article was submitted to the Senate by the President as a part of the treaty, as by the constitution of the United States the President was bound to do, to the end that the treaty might be properly ratified on the part of the United States, the French government having previously adopted and ratified it as it was signed by the respective negotiators, the second article being then in the form given above. The Senate refused to advise and consent to this article, and expunged it from the treaty, inserting in its place the following:"'It is agreed that the present convention shall be in force for the term of eight years from the time of the exchange of the ratifications.'"In this shape, and with this modification the treaty was duly ratified by the President of the United States, and returned to the French government for its dissent or concurrence. Bonaparte, then First Consul, concurred in the modification made by the Senate, in the following language, and upon the condition therein expressed:"'The government of the United States having added to its ratification that the convention should be in force for the space of eight years, and having omitted the second article, the government of the French Republic consents to accept, ratify, and confirm the above convention, with the addition, purporting that the convention shall be in force for the space of eight years, and with the retrenchment of the second article:Provided, That, by this retrenchment, the two States renounce the respective pretensions which are the object of the said article.'"This ratification by the French Republic, thus qualified, was returned to the United States, and the treaty, with the respective conditional ratifications, was again submitted by the President of the United States to the Senate. That body 'resolved that they considered the said convention as fully ratified, and returned the same to the President for the usual promulgation;' whereupon he completed the ratification in the usual forms and by the usual publication."This, Mr. W. said, was the documentary history of this treaty and of its ratification, and here was the release of their claims relied upon by the claimants under the bill before the Senate. They contend that this second article of the treaty, as originally inserted by the negotiators, reserved their claims for future negotiation, and also reserved the subjects of disagreement under the treaties of amity and commerce, and of alliance, of 1778, and the consular convention of 1788; that the seventeenth article of the treaty of amity and commerce, and the eleventh article of the treaty of alliance, were particularly onerous upon the United States; that, to discharge the government from the onerous obligations imposed upon it in these two articles of the respective treaties, the Senate was induced to expunge the second article of the treaty of the 30th September above referred to, and, by consequence, to expunge the reservation of their claims as subjects of future negotiation between the two nations; that, in thus obtaining a discharge from the onerous obligations of these treaties, and especially of the two articles above designated, the United States was benefited to an amount beyond the whole value of the claims discharged, and that this benefit was the inducement to the expunging of the second article of the treaty, with a full knowledge that the act did discharge the claims, and create a legal and equitable obligation on the part of the government to pay them."These, Mr. W. said, he understood to be the assumptions of the claimants, and this their course of reasoning to arrive at the conclusion that the United States were liable to them for the amount of their claims. He must here raise a preliminary question, which he had satisfied himself would show which assumptions of the claimants to be wholly without foundation, so far as the idea of benefit to the United States was supposed to be derived from expunging this second article of the treaty of 1800. What, hemust be permitted to ask, would have been the liability of the United States under the 'onerous obligations' referred to, in case the Senate had ratified the treaty, retaining this second article? The binding force of the treaties of amity and commerce, and of alliance, and of the consular convention, was released, and the treaties and convention were themselves suspended by the very article in question; and the subjects of disagreement growing out of them were merely made matters of future negotiation 'at a convenient time.' What was the value or the burden of such an obligation upon the United States? for this was the only obligation from which our government was released by striking out the article. The value, Mr. W. said, was the value of the privilege, being at perfect liberty, in the premises, of assenting to or dissenting from a bad bargain, in a matter of negotiation between ourselves and a foreign power. This was the consideration passing to the United States, and, so far as he was able to view the subject, this was all the consideration the government had received, if it be granted (which he must by no means be understood to admit), that the striking out of the article was a release of the claims, and that such release was intended as a consideration for the benefits to accrue to the government from the act."Mr. W. said he felt bound to dwell, for a moment, upon this point. What was the value of an obligation to negotiate 'at a convenient time?' Was it any thing to be valued? The 'convenient time' might never arrive, or if it did arrive, and negotiations were opened, were not the government as much at liberty as in any other case of negotiation, to refuse propositions which were deemed disadvantageous to itself? The treaties were suspended, and could not be revived without the consent of the United States; and, of consequence, the 'onerous obligations' comprised in certain articles of these treaties were also suspended until the same consent should revive them. Could he, then, be mistaken in the conclusion that, if the treaty of 1800 had been ratified with the second article forming a part of it, as originally agreed by the negotiators, the United States would have been as effectually released from the onerous obligations of the former treaties, until those obligations should again be put in force by their consent, as they were released when that article was stricken out, and the treaty ratified without it? In short, could he be mistaken in the position that all the inducement, of a national character, to expunge that article from the treaty, was to get rid of an obligation to negotiate 'at a convenient time?' And could it be possible that such an inducement would have led the Senate of the United States, understanding this consequence, to impose upon the government a liability to the amount of $5,000,000? He could not adopt so absurd a supposition; and he felt himself compelled to say that this view of the action of the government in the ratification of the treaty of 1800, in his mind, put an end to the pretence that the striking out of this article relieved the United States from obligations so onerous as to form a valuable consideration for the payments provided for in this bill. He could not view the obligation released—a mere obligation to negotiate—as onerous at all, or as forming any consideration whatever for a pecuniary liability, much less for a liability for millions."Mr. W. said he now proposed to consider whether the effect of expunging the second article of the treaty of 1800 was to release any claim of value—any claim which France had ever acknowledged, or ever intended to pay. He had before shown, by extracts from the fourth and fifth articles of the treaty of 1800, that certain classes of claims were saved by that treaty, as it was ratified. The claims so reserved and provided for were paid in pursuance of provisions contained in the treaty between France and the United States, of the 30th of April, 1803; and to determine what claims were thus paid, a reference to some of the articles of that treaty was necessary. The purchase of Louisiana was made by the United States for the sum of 80,000,000 of francs, 60,000,000 of which were to be paid into the French treasury, and the remaining 20,000,000 were to be applied to the payment of these claims. Three separate treaties were made between the parties, bearing all the same date, the first providing for the cession of the territory, the second for the payment of the 60,000,000 of francs to the French treasury, and the third for the adjustment and payment of the claims."Mr. W. said the references proposed were to the last-named treaty, and were the following:"'Art.1. The debts due by France to citizens of the United States, contracted before the 8th of Vendemiaire, ninth year of the French Republic (30th September, 1800), shall be paid according to the following regulations, with interest at six per cent., to commence from the period when the accounts and vouchers were presented to the French government.'"'Art.2. The debts provided for by the preceding article are those whose result is comprised in the conjectural note annexed to the present convention, and which, with the interest, cannot exceed the sum of twenty millions of francs. The claims comprised in the said note, which fall within the exceptions of the following articles, shall not be admitted to the benefit of this provision.'"'Art.4. It is expressly agreed that the preceding articles shall comprehend no debts but such as are due to citizens of the United States, who have been and are yet creditors of France, for supplies, for embargoes, and prizes made at sea, in which the appeal has been properly lodged within the time mentioned in the said convention of the 8th Vendemiaire, ninth year (30th September, 1800).'"'Art.5. The preceding articles shall apply only, 1st, to captures of which the council ofprizes shall have ordered restitution, it being well understood that the claimant cannot have recourse to the United States otherwise than he might have had to the government of the French Republic, and only in case of the insufficiency of the captors; 2d, the debts mentioned in the said fifth article of the convention, contracted before the 8th Vendemiaire, and 9 (30th September, 1800), the payment of which has been heretofore claimed of the actual government of France, and for which the creditors have a right to the protection of the United States; the said fifth article does not comprehend prizes whose condemnation has been or shall be confirmed; it is the express intention of the contracting parties not to extend the benefit of the present convention to reclamations of American citizens, who shall have established houses of commerce in France, England, or other countries than the United States, in partnership with foreigners, and who by that reason and the nature of their commerce, ought to be regarded as domiciliated in the places where such houses exist. All agreements and bargains concerning merchandise, which shall not be the property of American citizens, are equally excepted from the benefit of the said convention, saving, however, to such persons their claims in like manner as if this treaty had not been made."From these provisions of the treaty, Mr. W. said, it would appear that the claims to be paid were of three descriptions, to wit:"1. Claims for supplies."2. Claims for embargoes."3. Claims for captures made at sea, of a description defined in the last clause of the 4th and the first clause of the 5th article."How far these claims embraced all which France ever acknowledged, or ever intended to pay, Mr. W. said he was unable to say, as the time allowed him to examine the case had not permitted him to look sufficiently into the documents to make up his mind with precision upon this point. He had found, in a report made to the Senate on the 14th of January, 1831, in favor of this bill, by the honorable Mr. Livingston, then a Senator from the State of Louisiana, the following Classification of the French claims, as insisted on at a period before the making of the treaty of 1800, to wit:"'1. From the capture and detention of about fifty vessels."'2. The detention, for a year, of eighty other vessels, under the Bordeaux embargo."'3. The non-payment of supplies to the West India islands, and to continental France."'4. For depredations committed on our commerce in the West Indies."Mr. W. said the comparison of the two classifications of claims would show, at a single view, that Nos. 2 and 3 in Mr. Livingston's list were provided for by the treaty of 1803, from which he had read. Whether any, and if any, what portions of Nos. 1 and 4 in Mr. Livingston's list were embraced in No 3 of the provisions of the treaty, as he had numbered them he was unable to say; but this much he could say, that he had found nothing to satisfy his mind that parts of both those classes of claims were not so included, and therefore provided for and paid under the treaty; nor had he been able to find any thing to show that this treaty of 1803 did not provide for and pay all the claims which France ever acknowledged or ever intended to pay. He was, therefore, unprepared to admit, and did not admit, that any thing of value to any class of individual claimants was released by expunging the second original article from the treaty of the 30th September, 1800. On the contrary, he was strongly impressed with the belief that the adjustment of claims provided for in the treaty of 1803 had gone to the whole extent to which the French government had, at any period of the negotiations, intended to go."Mr. W. said this impression was greatly strengthened by the circumstance that the claims under the Bordeaux embargo were expressly provided for in this treaty, while he could see nothing in the treaty of 1800 which seemed to him to authorize the supposition that this class of claims was more clearly embraced within the reservations in that treaty than any class which had been admitted by the French government."Another fact, Mr. W. said, was material to this subject, and should be borne carefully in mind by every senator. It was, that not a cent was paid by France, even upon the claims reserved and admitted by the treaty of 1800, until the sale of Louisiana to the United States, for a sum greater by thirty millions of francs than that for which the French minister was instructed to sell it. Yes, Mr. President, said Mr. W., the only payment yet made upon any portion of these claims has been virtually made by the United States; for it has been made out of the consideration money paid for Louisiana, after paying into the French treasury ten millions of francs beyond the price France herself placed upon the territory. It is a singular fact that the French negotiator was instructed to make the sale for fifty millions, if he could get no more; and when he found that, by yielding twenty millions to pay the claims, he could get eighty millions for the territory, and thus put ten millions more into the treasury of his nation than she had instructed him to ask for the whole, he yielded to the claims and closed the treaty. It was safe to say that, but for this speculation in the sale of Louisiana, not one dollar would have been paid upon the claims to this day. All our subsequent negotiations with France of a similar character, and our present relations with that country, growing out of private claims, justify this position. What, then, would have been the value of claims, if such fairly existed, which were not acknowledged and provided for by the treaty of 1800, but were left for future negotiation 'at a convenienttime?' Would they have been worth the five millions of dollars you propose to appropriate by this bill? Would they have been worth further negotiation? He thought they would not."Mr. W. said he would avail himself of this occasion, when speaking of the treaty of Louisiana and of its connection with these claims, to explain a mistake into which he had fallen, and which he found from conversation with several gentlemen, who had been for some years members of Congress, had been common to them and to himself. The mistake to which he alluded was, the supposition that the claimants under this bill put their case upon the assumption that their claims had constituted part of the consideration for which Louisiana had been ceded to the United States; and that the consideration they contended the government had received, and upon which its liability rested, was the cession of that territory for a less sum, in money, than was considered to be its value, on account of the release of the French government from those private claims. He had rested under this misapprehension until the opening of the present debate, and until he commenced an examination of the case. He then found that it was an entire misapprehension; that the United States had paid, in money, for Louisiana, thirty millions of francs beyond the price which France had set upon it; that the claimants under this bill did not rest their claims at all upon this basis, and that the friends of the bill in the Senate did not pretend to derive the liability of the government from this source. Mr. W. said he was induced to make this explanation in justice to himself, and because there might be some person within the hearing of his voice who might still be under the same misapprehension."He had now, Mr. W. said, attempted to establish the following propositions, viz.:"1. That a state of actual war, by which he meant a state of actual hostilities and of force, and an interruption of all diplomatic or friendly intercourse between the United States and France, had existed from the time of the passage of the acts of the 7th and 9th of July, 1798, before referred to, until the sending of the negotiators, Ellsworth, Davie, and Murray, in 1800, to make a treaty which put an end to the hostilities existing, upon the best terms that could be obtained; and that the treaty of the 30th of September, 1800, concluded by these negotiators, was, in fact, and so far as private claims were concerned, to be considered as a treaty of peace, and to conclude all such claims, not reserved by it, as finally ratified by the two powers."2. That the treaty of amity and commerce, and the treaty of alliance of 1778, as well as the consular convention of 1788, were suspended by the 2d article of the treaty of 1800, and from that time became mere matters for negotiation between the parties at a convenient time; that, therefore, the desire to get rid of these treaties, and of any 'onerous obligations' contained in them, was only the desire to get rid of an obligation to negotiate 'at a convenient time;' and that such a consideration could not have induced the Senate of the United States to expunge that article from the treaty, if thereby that body had supposed it was imposing upon the country a liability to pay to its citizens the sum of five millions of dollars—a sum much larger than France had asked, in money, for a full discharge from the 'onerous obligations' relied upon."3. That the treaty of 1800 reserved and provided for certain portions of the claims; that payment, according to such reservations, was made under the treaty of 1803; and that it is at least doubtful whether the payment thus made did not cover all the claims ever admitted, or ever intended to be paid by France; for which reason the expunging of the second article of the treaty of 1800, by the Senate of the United States, in all probability, released nothing which ever had, or which was ever likely to have value."Mr. W. said, if he had been successful in establishing either of these positions, there was an end of the claims, and, by consequence, a defeat of the bill."The advocates of the bill conceded that two positions must be established, on their part, to sustain it, to wit:"1. That the claims were valid claims against France, and had never been paid. And"2. That they were released by the government of the United States for a full and valuable consideration passing to its benefit by means of the release."If, then, a state of war had existed, it would not be contended that any claims of this character, not reserved or provided for in the treaty of peace, were valid claims after the ratification of such a treaty. His first proposition, therefore, if sustained, would defeat the bill, by establishing the fact that the claims, if not reserved in the treaty of 1800, were not valid claims."The second proposition, if sustained, would establish the fact that, inasmuch as the valuable consideration passing to the United States was alleged to grow out of the 'onerous obligations' in the treaty of amity and commerce, the treaty of alliance, and the consular convention; and inasmuch as these treaties, and all obligations, past, present, or future, 'onerous' or otherwise, growing out of them, were suspended and made inoperative by the second article of the treaty of the 30th of September, 1800, until further negotiation, by the common consent of both powers, should revive them, the Senate of the United States could not have expected, when they expunged this article from the treaty, that, by thus discharging the government from an obligation to negotiate 'at a convenient time,' they were incurring against it aliability of millions; in other words, the discharge of the government from an obligation to negotiate upon any subject 'at a convenient time,' could not have been considered by the Senate of the United States as a good and valuable consideration for the payment of private claims to the amount of five millions of dollars."The third proposition, if sustained, would prove that all the claims ever acknowledged, or ever intended to be paid by France, were paid under the treaty of 1803, and that, therefore, as claims never admitted or recognized by France would scarcely be urged as valid claims against her, no valid claims remained; and, consequently, the expunging of the second article of the treaty of the 30th of September, 1800, released nothing which was valid, and nothing remained to be paid by the United States as a liability incurred by that modification of that treaty. Here Mr. W. said he would rest his reasoning as to these three propositions."But if the Senate should determine that he had been wrong in them all, and had failed to sustain either, he had still another proposition, which he considered conclusive and unanswerable, as to any valuable consideration for the release of these claims having passed to the United States in consequence of their discharge from the 'onerous obligations' said to have been contained in the former treaties. These 'onerous obligations,' and the only ones of which he had heard any thing in the course of the debate, or of which he had found any thing in the documents, arose under the 17th article of the treaty of amity and commerce, and the 11th article of the treaty of alliance; and, in relation to both, he laid down this broad proposition, which would be fully sustained by the treaties themselves, and by every act and every expression on the part of the American negotiators, and the government of the United States, viz.:"'The obligations, liabilities, and responsibilities, imposed upon the government of the United States and upon France by the 17th article of the treaty of amity and commerce of 1778, and by the 11th article of the treaty of alliance of 1778, where mutual, reciprocal, and equal: each formed the consideration, and the only consideration, for the other; and, therefore, any release which discharged both powers from those liabilities, responsibilities, and obligations, must have been mutual, reciprocal, and equal; and the release of either must have formed a full and valuable consideration for the release of the other.'"Mr. W. said he would not trouble the Senate by again reading the articles from the respective treaties. They would be recollected, and no one would controvert the fact that, when the treaties were made, these articles were intended to contain mutual, reciprocal, and equal obligations. By the first we gave to France the liberty of our ports for her armed vessels, privateers, and prizes, and prohibited all other powers from the enjoyment of the same privilege; and France gave to us the liberty of her ports for our armed vessels, privateers, and prizes, and guarded the privilege by the same prohibition to other powers; and by the second we guaranteed to France, for ever, her possessions in America, and France guaranteed to us, for ever, 'our liberty, sovereignty, and independence, absolute and unlimited, as well in matters of government as commerce.' Such were the obligations in their original inception. Will it be contended that they were not mutual, reciprocal, and equal, and that, in each instance, the one did not form the consideration for the other? Surely no one will take this ground."If, then, said Mr. W., the obligations imposed upon each government by these articles of the respective treaties were mutual, reciprocal, and equal, when undertaken, they must have remained equal until abrogated by war, or changed by treaty stipulation. No treaty, subsequent to those which contain the obligations, had affected them in any manner whatever. If, as he had attempted to show, war had existed from July, 1778, to 1800, that would not have rendered the obligations unequal, but would have abrogated them altogether. If, as the friends of the bill contend, there had been no war, and the treaties were in full force up to the signing of the convention of the 30th of September, 1800, what was the effect of that treaty, as originally signed by the negotiators, upon these mutual, reciprocal, and equal obligations? The second original article of that treaty will answer. It did not attempt to disturb their mutuality, reciprocity, or equality, but suspended them as they were, past, present, or future, and made all the subject of future negotiation 'at a convenient time.'"But, Mr. W. said, the Senate of the United States expunged this article of the treaty of 1800, and refused to advise and consent to ratify it as a part of the treaty; and hence it was contended the United States had discharged themselves from the 'onerous obligations' of these articles in the respective treaties, and had, by that act, incurred, to the claimants under this bill, the heavy liability which it recognizes. If the expunging of that article discharged the United States from obligations thus onerous, did it not discharge France from the fellow obligations? Was not the discharge, made in that manner, as mutual, reciprocal, and equal, as the obligations in their inception, and in all their subsequent stages up to that act? How, then, could it be contended that the discharge of the one was not a full and adequate consideration for the discharge of the other? Nothing upon the face of the treaties authorized the introduction of this inequality at this step in the official proceedings. Nothing in the record of the proceedings of the Senate, when acting upon the article, indicates that they intended to pay five millions of dollars to render this mutual release equal between the two powers. The obligations and responsibilities were reserved as subjects offuture negotiation, upon terms of equality, and the striking out of that reservation was but a mutual and reciprocal and equal release from the obligation further to negotiate. This much for the reciprocity of these obligations as derived from the action of the sovereign powers themselves."What was to be learned from the action of their respective negotiators? He did not doubt but that attempts had been made on the part of France to exhibit an inequality in the obligations under the treaty, and to set up that inequality against the claims of our citizens; but had our negotiators ever admitted the inequality to exist, or ever attempted to compromise the rights of the claimants under this bill for such a consideration? He could not find that they had. He did not hear it contended that they had: and, from the evidence of their acts, remaining upon record, as a part of the diplomatic correspondence of the period, he could not suppose they had ever entertained the idea. He had said that the American negotiators had always treated these obligations as mutual, reciprocal, and equal; and he now proposed to read to the Senate a part of a letter from Messrs. Ellsworth, Davie, and Murray, addressed to the French negotiators, and containing the project of a treaty, to justify his assertion. The letter was dated 20th August, 1800, and it would be recollected that its authors were the negotiators, on the part of the United States, of the treaty of the 30th of September, 1800. The extract is as follows:"'1. Let it be declared that the former treaties are renewed and confirmed, and shall have the same effect as if no misunderstanding between the two powers had intervened, except so far as they are derogated from by the present treaty."'2. It shall be optional with either party to pay to the other, within seven years, three millions of francs, in money or securities which may be issued for indemnities, and thereby to reduce the rights of the other as to privateers and prizes, to those of the most favored nation, And during the said term allowed for option, the right of both parties shall be limited by the line of the most favored nation."'3. The mutual guaranty in the treaty of alliance shall be so specified and limited, that its future obligation shall be, on the part of France, when the United States shall be attacked, to furnish and deliver at her own ports military stores to the amount of one million of francs; and, on the part of the United States, when the French possessions in America, in any future war, shall be attacked, to furnish and deliver at their own ports a like amount in provisions. It shall, moreover, be optional for either party to exonerate itself wholly of its obligation, by paying to the other, within seven years, a gross sum of five millions of francs, in money or such securities as may be issued for indemnities.'"Mr. W. asked if he needed further proofs that not only the American government, but the American negotiators, treated these obligations under the treaty as, in all respects, mutual, reciprocal, and equal; and if the fallacy of the argument that the United States had obtained to itself a valuable consideration for the release of these private claims in the release of itself from these obligations, was not utterly and entirely disproved by these facts? Was not the release of the obligations on the one side the release of them on the other? And was not the one release the necessary consideration for the other? How, then, could it be said, with any justice, that we sought our release at the expense of the claimants? There was no reasonable ground for such an allegation, either from the acts of our government or of our negotiators. When the latter fixed a value upon our obligations as to the privateers and prizes, and as to the guaranty, in the same article they fixed the same price, to a franc, upon the reciprocal obligations of France; and when the former discharged our liability, by expunging the second article of the treaty of 1800, the same act discharged the corresponding liability of the French government."Here, then, Mr. W. said, must end all pretence of a valuable consideration for these claims passing to the United States from this source. The onerous obligations were mutual, reciprocal, and equal, and the respective releases were mutual, reciprocal, and equal, and simultaneous, and nothing could be fairly drawn from the act which operated these mutual releases to benefit these claimants."Mr. W. said he was, then, necessarily brought back to the proposition with which he started in the commencement of his argument, that, if the United States were liable to pay these claimants, that liability must rest upon the broad ground of a failure by the government, after ordinary, and, in this instance, extraordinary efforts to collect the money. The idea of a release of the claims for a valuable consideration passing to the government had been exploded, and, if a liability was to be claimed on account of a failure to collect the money, upon what ground did it rest? What had the government done to protect the rights of these claimants? It had negotiated from 1793 to 1798, with a vigilance and zeal and talent almost unprecedented in the history of diplomacy. It had sent to France minister after minister, and, upon several occasions, extraordinary missions composed of several individuals. Between 1798 and 1800, it had equipped fleets and armies, expended millions in warlike preparation, and finally sent forth its citizens to battle and death, to force the payment of the claims. Were we now to be told, that our failure in these efforts had created a liability against us to pay the money? That the same citizens who had been taxed to pay the expenses of these long negotiations, and of this war for the claims, were to be further taxed to pay such of the claims as we had failed to collect?He could never consent to such a deduction from such premises."But, Mr. President, said Mr. W., there is another view of this subject, placed upon this basis, which renders this bill of trifling importance in the comparison. If the failure to collect these claims has created the liability to pay them, that liability goes to the extent of the claims proved, and the interest upon them, not to a partial, and perhaps trifling, dividend. Who, then, would undertake to say what amount of claims might not be proved during the state of things he had described, from the breaking out of the war between France and England, in 1793, to the execution of the treaty, in 1800? For a great portion of the period, the municipal regulations of France required the captured cargoes to be not confiscated, but paid for at the market value at the port to which the vessel was destined. Still the capture would be proved, the value of the cargo ascertained, before the commission which the bill proposes to establish; and who would adduce the proof that the same cargo was paid for by the French government?"This principle, however, Mr. W. said, went much further than the whole subject of the old French claims. It extended to all claims for spoliations upon our commerce, since the existence of the government, which we had failed to collect. Who could say where the liability would end? In how many cases had claims of this character been settled by treaty, what had been collected in each case, and what amount remained unpaid, after the release of the foreign government? He had made an unsuccessful effort to answer these inquiries, so far as the files of the state department would furnish the information, as he had found that it could only be collected by an examination of each individual claim; and this would impose a labor upon the department of an unreasonable character, and would occupy more time than remained to furnish the information for his use upon the present occasion. He had, however, been favored by the Secretary of State with the amounts allowed by the commissioners, the amounts paid, and the rate of pay upon the principal, in two recent cases, the Florida treaty, and the treaty with Denmark. In the former instance, the payment was ninety-one and two thirds per centum upon the principal, while in the latter it was but thirty-one and one eighth per centum. Assume that these two cases are the maximum and minimum of all the cases where releases have been given for partial payments; and he begged the Senate to reflect upon the amounts unpaid which might be called from the national treasury, if the principle were once admitted that a failure to collect creates a liability to pay."That in his assumption that a liability of this sort must go to the whole amount of the claims, he only took the ground contended for by the friends of this bill, he would trouble the Senate with another extract from the report of Mr. Livingston, from which he had before read. In speaking of the amount which should be appropriated, Mr. Livingston says:"'The only remaining inquiry is the amount; and on this point the committee have had some difficulty. Two modes of measuring the compensation suggested themselves:"'1. The actual loss sustained by the petitioners."'2. The value of the advantages received, as the consideration, by the United States."'The first is the one demanded by strict justice; and is the only one that satisfies the word used by the constitution, which requires just compensation, which cannot be said to have been made when any thing less than the full value is given. But there were difficulties which appeared insurmountable, to the adoption of this rule at the present day, arising from the multiplicity of the claims, the nature of the depredations which occasioned them, the loss of documents, either by the lapse of time, or the wilful destruction of them by the depredators. The committee, therefore, could not undertake to provide a specific relief for each of the petitioners. But they have recommended the institution of a board, to enter into the investigation, and apportion a sum which the committee have recommended to be appropriated,pro rata, among the several claimants.'"'The committee could not believe that the amount of compensation to the sufferers should be calculated by the advantages secured to the United States, because it was not, according to their ideas, the true measure. If the property of an individual be taken for public use, and the government miscalculate, and find that the object to which they have applied it has been injurious rather than beneficial, the value of the property is still due to the owner, who ought not to suffer for the false speculations which have been made. A turnpike or canal may be very unproductive; but the owner of the land which has been taken for its construction is not the less entitled to its value. On the other hand, he can have no manner of right to more than the value of his property, be the object to which it has been applied ever so beneficial.'"Here, Mr. W. said, were two proposed grounds of estimating the extent of the liability of the government to the claimants; and that which graduated it by the value received by the government was distinctly rejected, while that making the amount of the claims the measure of liability, was as distinctly asserted to be the true and just standard. He hoped he had shown, to the satisfaction of the Senate, that the former rule of value received by the government would allow the claimants nothing at all, while he was compelled to say that, upon the broad principle that a failure to collect creates a liability to pay, he could not controvert the correctness of the conclusion that the liability must be commensurate with the claim. He could controvert, hethought, successfully, the principle, but he could not the measure of damages when the principle was conceded. He would here conclude his remarks upon the points he had noticed, by the earnest declaration that he believed the passage of this bill would open more widely the doors of the public treasury than any legislation of which he had any knowledge, or to which Congress had ever yielded its assent."Mr. W. said he had a few observations to offer relative to the mode of legislation proposed, and to the details of the bill, and he would trouble the Senate no further."His first objection, under this head, was to the mode of legislation. If the government be liable to pay these claims, the claimants are citizens of the country, and Congress is as accessible to them as to other claimants who have demands against the treasury. Why were they not permitted, individually, to apply to Congress to establish their respective claims, as other claimants were bound to do, and to receive such relief, in each case, as Congress, in its wisdom, should see fit to grant? Why were these claims, more than others, grouped together, and attempted to be made a matter of national importance? Why was a commission to be established to ascertain their validity, a duty in ordinary cases discharged by Congress itself? Were the Senate sure that much of the importance given to those claims had not proceeded from this association, and from the formidable amount thus presented at one view? Would any gentleman be able to convince himself that, acting upon a single claim in this immense mass, he should have given it his favorable consideration? For his part, he considered the mode of legislation unusual and objectionable. His principal objections to the details were, that the second section of the bill prescribed the rules which should govern the commission in deciding upon the claims, among which 'the former treaties between the United States and France' were enumerated; and that the bill contained no declaration that the payments made under it were in full of the claims, or that the respective claimants should execute a release, as a condition of receiving their dividends."The first objection was predicated upon the fact that the bill covered the whole period from the making of the treaties of 1778, to that of the 30th September, 1800, and made the former treaties the rule of adjudication, when Congress on the 7th July, 1798, by a deliberate legislative act, declared those treaties void, and no longer binding upon the United States or their citizens. It is a fact abundantly proved by the documents, that a large portion of the claims now to be paid, arose within the period last alluded to; and that treaties declared to be void should be made the law in determining what were and what were not illegal captures, during the time that they were held to have no force, and when our citizens were authorized by law to go upon the high seas, regardless of their provisions, Mr. W. said, would seem to him to be an absurdity which the Senate would not legalize. He was fully aware that the first section of the bill purported to provide for 'valid claims to indemnity upon the French government, arising out of illegal captures, detentions, forcible seizures, illegal condemnations, and confiscations;' but it could not be overlooked that illegal captures, condemnations, and confiscations, must relate entirely to the law which was to govern the adjudication; and if that law was a void treaty which the claimants were not bound to observe, and did not observe, was it not more than possible that a capture, condemnation, or confiscation, might, by compulsion, be adjudged illegal under the rule fixed by the bill, while that same capture, condemnation, or confiscation, was strictly legal under the laws which governed the commerce of the claimant when the capture was made? He must say that it appeared clear to his mind that the rule of adjudication upon the validity of claims of this description, should, in all cases, be the same rule which governed the commerce out of which the claims have arisen."His second objection, Mr. W. said, was made more as a wish that a record of the intentions of the present Congress should be preserved upon the face of the bill, than from any idea that the provision suggested would afford the least protection to the public treasury. Every day's legislation showed the futility of the insertion in an act of Congress of a declaration that the appropriation made should be in full of a claim; and in this, as in other like cases, should this bill pass, he did not expect that it would be, in practice, any thing more than an instalment upon the claims which would be sustained before the commission. The files of the state department would contain the record evidence of the balance, with the admission of the government, in the passage of this bill, that an equal liability remained to pay that balance, whatever it might be. Even a release from the respective claimants he should consider as likely to have no other effect than to change their future applications from a demand of legal right, which they now assume to have, to one of equity and favor; and he was yet to see that the latter would not be as successful as the former. He must give his vote against the bill, whether modified in that particular or not, and he should do so under the most full and clear conviction, that it was a proposition fraught with greater dangers to the public treasury, than any law which had ever yet received the assent of Congress."
"Mr. Wright understood the friends of this bill to put its merits upon the single and distinct ground that the government of the United States had released France from the payment of the claims for a consideration, passing directly to the benefit of our government, and fully equal in value to the claims themselves. Mr. W. said he should argue the several questions presented, upon the supposition that this was the extent to which the friends of the bill had gone, or were disposed to go, in claiming a liability on the part of the United States to pay the claimants; and, thus understood, he was ready to proceed to an examination of the strength of this position.
"His first duty, then, was to examine the relations existing between France and the United States prior to the commencement of the disturbances out of which these claims have arisen; and the discharge of this duty would compel a dry and uninteresting reference to the several treaties which, at that period, governed those relations.
"The seventeenth article of the treaty of amity and commerce of the 6th February, 1778, was the first of these references, and that article was in the following words:
"'Art. 17.It shall be lawful for the ships of war of either party, and privateers, freely to carry whithersoever they please the ships and goods taken from their enemies, without being obliged to pay any duty to the officers of the admiralty or any other judges; nor shall such prizes be arrested or seized when they come to or enter the ports of either party; nor shall the searchers or other officers of those places search the same, or make examination concerning the lawfulness of such prizes; but they may hoist sail at any time and depart and carry their prizes to the places expressed in their commissions, which the commanders of such ships of war shall be obliged to show; on the contrary, no shelter or refuge shall be given in their ports to such as shall have made prize of the subjects, people, or property of either of the parties; but if such shall come in, being forced by stress ofweather, or the danger of the sea, all proper means shall be vigorously used, that they go out and retire from thence as soon as possible.'
"This article, Mr. W. said, would be found to be one of the most material of all the stipulations between the two nations, in an examination of the diplomatic correspondence during the whole period of the disturbances, from the breaking out of the war between France and England, in 1793, until the treaty of the 30th September, 1800. The privileges claimed by France, and the exclusions she insisted on as applicable to the other belligerent Powers, were fruitful sources of complaint on both sides, and constituted many material points of disagreement between the two nations through this entire interval. What these claims were on the part of France, and how far they were admitted by the United States, and how far controverted, will, Mr. W. said, be more properly considered in another part of the argument. As connected, however, with this branch of the relations, he thought it necessary to refer to the twenty-second article of the same treaty, which was in the following words:
"'Art. 22.It shall not be lawful for any foreign privateers, not belonging to subjects of the Most Christian King, nor citizens of the said United States, who have commissions from any other prince or State in enmity with either nation, to fit their ships in the ports of either the one or the other of the aforesaid parties, to sell what they have taken, or in any other manner whatsoever to exchange their ships, merchandises, or any other lading; neither shall they be allowed even to purchase victuals, except such as shall be necessary for their going to the next port of that prince or State from which they have commissions.'
"Mr. W. said he now passed to a different branch of the relations between the two countries, as established by this treaty of amity and commerce, which was the reciprocal right of either to carry on a free trade with the enemies of the other, restricted only by the stipulations of the same treaty in relation to articles to be considered contraband of war. This reciprocal right is defined in the twenty-third article of the treaty, which is in the words following:
"'Art. 23.It shall be lawful for all and singular the subjects of the Most Christian King, and the citizens, people, and inhabitants of the said United States, to sail with their ships with all manner of liberty and security, no distinction being made who are the proprietors of the merchandises laden thereon, from any port to the places of those who now are or hereafter shall be at enmity with the Most Christian King, or the United States. It shall likewise be lawful for the subjects and inhabitants aforesaid to sail with the ships and merchandises aforementioned, and to trade with the same liberty and security from the places, ports, and havens of those who are enemies of both or either party, without any opposition or disturbance whatsoever, not only directly from the places of the enemy aforementioned to neutral places, but also from one place belonging to an enemy to another place belonging to an enemy, whether they be under the jurisdiction of the same prince, or under several. And it is hereby stipulated that free ships shall also give a freedom to goods, and that every thing shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading, or any part thereof, should appertain to the enemies of either, contraband goods being always excepted. It is also agreed, in like manner, that the same liberty be extended to persons who are on board a free ship, with this effect, that although they be enemies to both or either party, they are not to be taken out of that free ship, unless they are soldiers and in actual service of the enemies.'
"The restrictions as to articles to be held between the two nations as contraband of war, Mr. W. said, were to be found in the twenty-fourth article of this same treaty of amity and commerce, and were as follows:
"'Art.24. This liberty of navigation and commerce shall extend to all kinds of merchandises, excepting those only which are distinguished by the name of contraband, and under this name of contraband, or prohibited goods, shall be comprehended arms, great guns, bombs, with fuses and other things belonging to them, cannon ball, gunpowder, match, pikes, swords, lances, spears, halberds, mortars, petards, grenades, saltpetre, muskets, musket ball, helmets, breastplates, coats of mail, and the like kinds of arms proper for arming soldiers, musket rests, belts, horses with their furniture, and all other warlike instruments whatever. These merchandises which follow shall not be reckoned among contraband or prohibited goods; that is to say, all sorts of cloths, and all other manufactures woven of any wool, flax, silk, cotton, or any other material whatever; all kinds of wearing apparel, together with the species whereof they are used to be made; gold and silver, as well coined as uncoined: tin, iron, latten, copper, brass, coals; as also wheat and barley, and any other kind of corn and pulse: tobacco, and likewise all manner of spices; salted and smoked flesh, salted fish, cheese, and butter, beer, oils, wines, sugars, and all sorts of salts; and, in general, all provisions which serve for the nourishment of mankind, and the sustenance of life; furthermore, all kinds of cotton, hemp, flax, tar, pitch, ropes, cables, sails, sail cloths, anchors, and any part of anchors, also ships' masts, planks, boards, and beams, of what trees soever; and all other things proper either for building or repairing ships, and all other goods whatever which have not been worked into the form of any instrument or thing prepared for war by land or by sea, shall not be reputed contraband, much less such as have been already wrought and made up for any other use; all which shall be wholly reckoned among free goods; as likewise all other merchandises andthings which are not comprehended and particularly mentioned in the foregoing enumeration of contraband goods, so that they may be transported and carried in the freest manner by the subjects of both confederates, even to the places belonging to an enemy, such towns or places being only excepted as are at that time besieged, blocked up, or invested.'
"Mr. W. said this closed his references to this treaty, with the remark, which he wished carefully borne in mind, that the accepted public law was greatly departed from in this last article. Provisions, in their broadest sense, materials for ships, rigging for ships, and indeed almost all the articles of trade mentioned in the long exception in the article of the treaty, were articles contraband of war by the law of nations. This article, therefore, placed our commerce with France upon a footing widely different, in case of a war between France and any third power, from the rules which would regulate that commerce with the other belligerent, with whom we might not have a similar commercial treaty. Such was its effect as compared with our relations with England, with which power we had no commercial treaty whatever, but depended upon the law of nations as our commercial rule and standard of intercourse.
"Mr. W. said he now passed to the treaty of alliance between France and the United States, of the same date with the treaty of amity and commerce before referred to, and his first reference was to the 11th article of this latter treaty. It was in the following words:
"'Art.11. The two parties guarantee mutually from the present time, and for ever, against all other powers, to wit: The United States to His Most Christian Majesty the present possessions of the Crown of France in America, as well as those which it may acquire by the future treaty of peace: And His Most Christian Majesty guarantees on his part to the United States, their liberty, sovereignty, and independence, absolute and unlimited, as well in matters of government as commerce, and also their possessions, and the additions or conquests that their confederation may obtain during the war, from any of the dominions now or heretofore possessed by Great Britain in North America, conformable to the fifth and sixth articles above written, the whole as their possessions shall be fixed and assured to the said States at the moment of the cessation of their present war with England.'
"This article, Mr. W. said, was the most important reference he had made, or could make, so far as the claims provided for by this bill were concerned, because he understood the friends of the bill to derive the principal consideration to the United States, which created their liability to pay the claims, from the guaranty on the part of the United States contained in it. The Senate would see that the article was a mutual and reciprocal guaranty, 1st. On the part of the United States to France, of her possessions in America; and 2d. On the part of France to the United States, of their 'liberty, sovereignity, and independence, absolute and unlimited, as well in matters of government as commerce, and also their possessions,' &c.; and that the respective guarantees were 'for ever.' It would by-and-by appear in what manner this guaranty on the part of our government was claimed to be the foundation for this pecuniary responsibility for millions, but at present he must complete his references to the treaties which formed the law between the two nations, and the rule of their relations to and with each other. He had but one more article to read, and that was important only as it went to define the one last cited. This was the 12th article of the treaty of alliance, and was as follows:
"'Art.12. In order to fix more precisely the sense and application of the preceding article, the contracting parties declare that, in case of a rupture between France and England, the reciprocal guaranty declared in the said article shall have its full force and effect the moment such war shall break out; and if such rupture shall not take place, the mutual obligations of the said guaranty shall not commence until the moment of the cessation of the present war between the United States and England shall have ascertained their possessions.'
"These, said Mr. W., are the treaty stipulations between France and the United States, existing at the time of the commencement of the disturbances between the two countries, which gave rise to the claims now the subject of consideration, and which seem to bear most materially upon the points in issue. There were other provisions in the treaties between the two governments more or less applicable to the present discussion, but, in the course he had marked out for himself, a reference to them was not indispensable, and he was not disposed to occupy the time or weary the patience of the Senate with more of these dry documentary quotations than he found absolutely essential to a full and clear understanding of the points he proposed to examine.
"Mr. W. said he was now ready to present the origin of the claims which formed the subject of the bill. The war between France and England broke out, according to his recollection, late in the year 1792, or early in the year 1793, and the United States resolved upon preserving the same neutral position between those belligerents, which they had assumed at the commencement of the war between France and certain other European powers. This neutrality on the part of the United States seemed to be acceptable to the then French Republic, and her minister in the United States and her diplomatic agents at home were free and distinct in their expressions to this effect.
"Still that Republic made broad claims under the 17th article of the treaty of amity and commerce before quoted, and her minister here assumed the right to purchase ships, arm them as privateers in our ports, commission officers for them, enlist our own citizens to man themand, thus prepared, to send them from our ports to cruise against English vessels upon our coast. Many prizes were made, which were brought into our ports, submitted to the admiralty jurisdiction conferred by the French Republic upon her consuls in the United States, condemned, and the captured vessels and cargoes exposed for sale in our markets. These practices were immediately and earnestly complained of by the British government as violations of the neutrality which our government had declared, and which we assumed to maintain in regard to all the belligerents, as favors granted to one of the belligerents, not demandable of right under our treaties with France, and as wholly inconsistent, according to the rules of international law, with our continuance as a neutral power. Our government so far yielded to these complaints as to prohibit the French from fitting out, arming, equipping, or commissioning privateers in our ports, and from enlisting our citizens to bear arms under the French flag.
"This decision of the rights of France, under the treaty of amity and commerce, produced warm remonstrances from her minister in the United States, but was finally ostensibly acquiesced in by the Republic, although constant complaints of evasions and violations of the rule continued to harass our government, and to occupy the attention of the respective diplomatists.
"The exclusive privilege of our ports for her armed vessels, privateers, and their prizes, granted to France by the treaty of amity and commerce, as has before been seen, excited the jealousy of England, and she was not slow in sending a portion of her vast navy to line our coast and block up our ports and harbors. The insolence of power induced some of her armed vessels to enter our ports, and to remain, in violation of our treaty with France, though not by the consent of our government, or when we had the power to enforce the treaty by their ejection. These incidents, however, did not fail to form the subject of new charges from the French ministers, of bad faith on our part, of partiality to England to the prejudice of our old and faithful ally, of permitted violations of the treaties, and of an inefficiency and want of zeal in the performance of our duties as neutrals. To give point to these complaints, some few instances occurred in which British vessels brought their prizes into our ports, whether in all cases under those casualties of stress of weather, or the dangers of the sea, which rendered the act in conformity with the treaties and the law of nations or not, is not perhaps very certain or very material, inasmuch as the spirit of complaint seems to have taken possession of the French negotiators, and these acts gave colorable ground to their remonstrances.
"Contemporaneously with these grounds of misunderstanding and these collisions of interest between the belligerents, and between the interests of either of them and the preservation of our neutrality, the French began to discover the disadvantages to them, and the great advantages to the British, of the different rules which governed the commerce between the two nations and the United States. The rule between us and France was the commercial treaty of which the articles above quoted form a part, and the rule between us and Great Britain, was that laid down by the law of nations. Mr. W. said he would detain the Senate to point out but two of the differences between these rules of commerce and intercourse, because upon these two principally depended the difficulties which followed. The first was, that, by the treaty between us and France, 'free ships shall also give a freedom to the goods; and every thing shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading, or any part thereof, should appertain to the enemy of either, contraband goods being always excepted;' while the law of nations, which was the rule between us and England, made the goods of an enemy a lawful prize, though found in the vessel of a friend. Hence it followed that French property on board of an American vessel was subject to capture by British cruisers without indignity to our flag, or a violation to international law, while British property on board of an American vessel could not be captured by a French vessel without an insult to the flag of the United States, and a direct violation of the twenty-third article of the treaty of amity and commerce between us and France, before referred to.
"Mr. W. said the second instance of disadvantage to France which he proposed to mention, was the great difference between the articles made contraband of war by the twenty-fourth article of the treaty of amity and commerce, before read to the Senate, and by the law of nations. By the treaty, provisions of all kinds, ship timber, ship tackle (guns only excepted), and a large list of other articles of trade and commerce, were declared not to be contraband of war, while the same articles are expressly made contraband by the law of nations. Hence an American vessel, clearing for a French port with a cargo of provisions or ship stores, was lawful prize to a British cruiser, as, by the law of nations, carrying articles contraband of war to an enemy, while the same vessel, clearing for a British port, with the same cargo, could not be captured by a French vessel, because the treaty declared that the articles composing the cargo should not be contraband as between the United States and France. Mr. W. said the Senate would see, at a single glance, how eminently these two advantages on the part of Great Britain were calculated to turn our commerce to her ports, where, if the treaty between us and France was observed, our vessels could go in perfect safety, while, laden with provisions, our only considerable export, and destined for a French port, they were liable to capture, as carrying to an enemy contraband articles. Upontheir return, too, they were equally out of danger from French cruisers, as, by the treaty, free ships made free the goods on board; while, if they cleared from a port in France with a French cargo, they were lawful prize to the British, upon the principle of the law of nations, that the goods of an enemy are lawful prize, even when found in the vessel of a friend.
"Both nations were in constant and urgent want of provisions from the United States; and this double advantage to England of having her ports open and free to our vessels, and of possessing the right to capture those bound to French ports, exasperated the French Republic beyond endurance. Her ministers remonstrated with our government, controverted our construction of British rights, again renewed the accusations of partiality, and finally threw off the obligations of the treaty; and, by a solemn decree of their authorities at home, established the rule which governed the practice of the British cruisers. France, assuming to believe that the United States permitted the neutrality of her flag to be violated by the British, without resistance, declared that she would treat the flag of all neutral vessels as that flag should permit itself to be treated by the other belligerents. This opened our commerce to the almost indiscriminate plunder and depredation of all the powers at war, and but for the want of the provisions of the United States, which was too strongly felt both in England and France not to govern, in a great degree, the policy of the two nations, it would seem probable, from the documentary history of the period, that it must have been swept from the ocean. Impelled by this want, however, the British adopted the rule, at an early day, that the provisions captured, although in a strict legal sense forfeited, as being by the law of nations contraband, should not be confiscated, but carried into English ports, and paid for, at the market price of the same provisions, at the port of their destination. The same want compelled the French, when they came to the conclusion to lay aside the obligations of the treaty, and to govern themselves, not by solemn compacts with friendly powers, but by the standards of wrong adopted by their enemies, to adopt also the same rule, and instead of confiscating the cargo as contraband of war, if provisions, to decree a compensation graduated by the market value at the port of destination.
"Such, said Mr. W., is a succinct view of the disturbances between France and the United States, and between France and Great Britain, out of which grew what are now called the French claims for spoliations upon our commerce, prior to the 30th of September, 1800. Other subjects of difference might have had a remote influence; but, Mr. W. said, he believed it would be admitted by all, that those he had named were the principal, and might be assumed as having given rise to the commercial irregularities in which the claims commenced. This state of things, without material change, continued until the year 1798, when our government adopted a course of measures intended to suspend our intercourse with France, until she should be brought to respect our rights. These measures were persevered in by the United States, up to September, 1800, and were terminated by the treaty between the two nations of the 30th of that month. Here, too, terminated claims which now occupy the attention of the Senate.
"As it was the object of the claimants to show a liability, on the part of our government, to pay their claims, and the bill under discussion assumed that liability, and provided, in part at least, for the payment, Mr. W. said it became his duty to inquire what the government had done to obtain indemnity for these claimants from France, and to see whether negligence on its part had furnished equitable or legal ground for the institution of this large claim upon the national treasury. The period of time covered by the claims, as he understood the subject, was from the breaking out of the war between France and England, in 1793, to the signing of the treaty between France and the United States, in September, 1800; and he would consider the efforts the government had made to obtain indemnity:
"1st. From 1793 to 1798.
"2d. From 1798 to the treaty of the 30th September, 1800.
"During the first period, Mr. W. said, these efforts were confined to negotiation, and he felt safe in the assertion that, during no equal period in the history of our government, could there be found such untiring and unremitted exertions to obtain justice for citizens who had been injured in their properties by the unlawful acts of a foreign power. Any one who would read the mass of diplomatic correspondence between this government and France, from 1793 to 1798, and who would mark the frequent and extraordinary missions, bearing constantly in mind that the recovery of these claims was the only ground upon our part for the whole negotiation, would find it difficult to say where negligence towards the rights and interests of its citizens is imputable to the government of the United States, during this period. He was not aware that such an imputation had been or would be made; but sure he was that it could not be made with justice, or sustained by the facts upon the record. No liability, therefore, equitable or legal, had been incurred, up to the year 1798.
"And if, said Mr. W., negligence is not imputable, prior to 1798, and no liability had then been incurred, how is it for the second period, from 1798 to 1800? The efforts of the former period were negotiation—constant, earnest, extraordinary negotiation. What were they for the latter period? His answer was, war; actual, open war; and he believed the statute book of the United States would justify him in the position. He was well aware that this point wouldbe strenuously controverted, because the friends of the bill would admit that, if a state of war between the two countries did exist, it put an end to claims existing prior to the war, and not provided for in the treaty of peace, as well as to all pretence for claims to indemnity for injuries to our commerce, committed by our enemy in time of war. Mr. W. said he had found the evidences so numerous, to establish his position that a state of actual war did exist, that he had been quite at a loss from what portion of the testimony of record to make his selections, so as to establish the fact beyond reasonable dispute, and at the same time not to weary the Senate by tedious references to laws and documents. He had finally concluded to confine himself exclusively to the statute book, as the highest possible evidence, as in his judgment entirely conclusive, and as being susceptible of an arrangement and condensation which would convey to the Senate the whole material evidence, in a satisfactory manner, and in less compass than the proofs to be drawn from any other source. He had, therefore, made a very brief abstract of a few statutes, which he would read in his place:
"By an act of the 28th May, 1798, Congress authorized the capture of all armed vessels of France which had committed depredations upon our commerce, or which should be found hovering upon our coast for the purpose of committing such depredations.
"By an act of the 13th June, 1798, only sixteen days after the passage of the former act, Congress prohibited all vessels of the United States from visiting any of the ports of France or her dependencies, under the penalty of forfeiture of vessel and cargo; required every vessel clearing for a foreign port to give bonds (the owner, or factor and master) in the amount of the vessel and cargo, and good sureties in half that amount, conditioned that the vessel to which the clearance was to be granted, would not, voluntarily, visit any port of France or her dependencies; and prohibited all vessels of France, armed or unarmed, or owned, fitted, hired, or employed, by any person resident within the territory of the French Republic, or its dependencies, or sailing or coming therefrom, from entering or remaining in any port of the United States, unless permitted by the President, by special passport, to be granted by him in each case.
"By an act of the 25th June, 1798, only twelve days after the passage of the last-mentioned act, Congress authorized the merchant vessels of the United States to arm, and to defend themselves against any search, restraint, or seizure, by vessels sailing under French colors, to repel force by force to capture any French vessel attempting a search, restraint, or seizure, and to recapture any American merchant vessel which had been captured by the French.
"Here, Mr. W. said, he felt constrained to make a remark upon the character of these several acts of Congress, and to call the attention of the Senate to their peculiar adaptation to the measures which speedily followed in future acts of the national legislature. The first, authorizing the capture of French armed vessels, was peculiarly calculated to put in martial preparation all the navy which the United States then possessed, and to spread it upon our coast. The second, establishing a perfect non-intercourse with France, was sure to call home our merchant vessels from that country and her dependencies, to confine within our own ports those vessels intended for commerce with France, and thus to withdraw from the reach of the French cruisers a large portion of the ships and property of our citizens. The third, authorizing our merchantmen to arm, was the greatest inducement the government could give to its citizens to arm our whole commercial marine, and was sure to put in warlike preparation as great a portion of our merchant vessels as a desire of self-defence, patriotism, or cupidity, would arm. Could measures more eminently calculated to prepare the country for a state of war have been devised or adopted? Was this the intention of those measures, on the part of the government, and was that intention carried out into action? Mr. W. said he would let the subsequent acts of the Congress of the United States answer; and for that purpose, he would proceed to read from his abstract of those acts:
"By an act of the 28th June, 1798, three days after the passage of the act last referred to, Congress authorized the forfeiture and condemnation of all French vessels captured in pursuance of the acts before mentioned, and provided for the distribution of the prize money, and for the confinement and support, at the expense of the United States, of prisoners taken in the captured vessels.
"By an act of the 7th July, 1798, nine days after the passage of the last-recited act, Congress declared 'that the United States are of right freed and exonerated from the stipulations of the treaties and of the consular convention heretofore concluded between the United States and France; and that the same shall not henceforth be regarded as legally obligatory on the government or citizens of the United States.'
"By an act of the 9th July, 1798, two days after the passage of the act declaring void the treaties, Congress authorized the capture, by the public armed vessels of the United States, of all armed French vessels, whether within the jurisdictional limits of the United States or upon the high seas, their condemnation as prizes, their sale, and the distribution of the prize money; empowered the President to grant commissions to private armed vessels to make the same captures, and with the same rights and powers, as public armed vessels; and provided for the safe keeping and support of the prisoners taken, at the expense of the United States.
"By an act of the 9th February, 1799, Congress continued the non-intercourse between theUnited States and France for one year, from the 3d of March, 1799.
"By an act of the 28th February, 1799, Congress provided for an exchange of prisoners with France, or authorized the President, at his discretion, to send to the dominions of France, without an exchange, such prisoners as might remain in the power of the United States.
"By an act of the 3d March, 1799, Congress directed the President, in case any citizens of the United States, taken on board vessels belonging to any of the powers at war with France, by French vessels, should be put to death, corporally punished, or unreasonably imprisoned, to retaliate promptly and fully upon any French prisoners in the power of the United States.
"By an act of the 27th February, 1800, Congress again continued the non-intercourse between us and France, for one year, from the 3d of March, 1800.
"Mr. W. said he had now closed the references he proposed to make to the laws of Congress, to prove that war—actual war—existed between the United States and France, from July, 1798, until that war was terminated by the treaty of the 30th of September, 1800. He had, he hoped, before shown that the measures of Congress, up to the passage of the act of Congress of the 25th of June, 1798, and including that act, were appropriate measures preparatory to a state of war; and he had now shown a total suspension of the peaceable relations between the two governments, by the declaration of Congress that the treaties should no longer be considered binding and obligatory upon our government or its citizens. What, then, but war could be inferred from an indiscriminate direction to our public armed vessels, put in a state of preparation, by preparatory acts, to capture all armed French vessels upon the high seas, and from granting commissions to our whole commercial marine, also armed by the operation of previous acts of Congress, authorizing them to make the same captures, with regulations applicable to both, for the condemnation of the prizes, the distribution of the prize money, and the detention, support, and exchange of the prisoners taken in the captured vessels? Will any man, said Mr. W., call this a state of peace?
"[Here Mr. Webster, chairman of the select committee which reported the bill, answered, 'Certainly.']
"Mr. W. proceeded. He said he was not deeply read in the treatises upon national law, and he should never dispute with that learned gentleman upon the technical definitions of peace and war, as given in the books; but his appeal was to the plain sense of every senator and every citizen of the country. Would either call that state of things which he had described, and which he had shown to exist from the highest of all evidence, the laws of Congress alone, peace? It was a state of open and undisguised hostility, of force opposed to force, of war upon the ocean, as far as our government were in command of the means to carry on a maritime war. If it was peace, he should like to be informed, by the friends of the bill, what would be war. This was violence and bloodshed, the power of the one nation against the power of the other, reciprocally exhibited by physical force.
"Couple with this the withdrawal by France of her minister from this government, and her refusal to receive the American commission, consisting of Messrs. Marshall, Pinckney, and Gerry, and the consequent suspension of negotiations between the two governments, during the period referred to; and Mr. W. said, if the facts and the national records did not show a state of war, he was at a loss to know what state of things between nations should be called war.
"If, however, the Senate should think him wrong in this conclusion, and that the claims were not utterly barred by war, he trusted the facts disclosed in this part of his argument would be considered sufficient at least to protect the faith of the government in the discharge of its whole duty to its citizens; and that after it had carried on these two years of war, or, if not war, of actual force and actual fighting, in which the blood of its citizens had been shed, and their lives sacrificed to an unknown extent, for the single and sole purpose of enforcing these claims of individuals, the imputation of negligence, and hence of liability to pay the claims, would not be urged as growing out of this portion of the conduct of the government.
"Mr. W. said he now came to consider the treaty of the 30th September, 1800, and the reasons which appeared plainly to his mind to have induced the American negotiators to place that negotiation upon the basis, not of an existing war, but of a continued peace. That such was assumed to be the basis of the negotiation, he believed to be true, and this fact, and this fact only, so far as he had heard the arguments of the friends of the bill, was depended upon to prove that there had been no war. He had attempted to show that war in fact had existed, and been carried on for two years; and if he could now show that the inducement, on the part of the American ministers, to place the negotiation which was to put an end to the existing hostilities upon a peace basis, arose from no considerations of a national or political character, and from no ideas of consistency with the existing state of facts, but solely from a desire still to save, as far as might be in their power, the interests of these claimants, he should submit with great confidence that it did not lay in the mouths of the same claimants to turn round and claim this implied admission of an absence of war, thus made by the agents of the government out of kindness to them, and an excess of regard for their interests, as the basis of a liability to pay the damages which they had sustained, and which this diplomatic untruth, like all the previous steps of the government, failed to recover for them. What, then, Mr.President, said Mr. W., was the subject on our part, of the constant and laborious negotiations carried on between the two governments from 1793 to 1798? The claims. What, on our part, was the object of the disturbances from 1798 to 1800—of the non-intercourse—of the sending into service our navy, and arming our merchant vessels—of our raising troops and providing armies on the land—of the expenditure of the millions taken from the treasury and added to our public debt, to equip and sustain these fleets and armies? The claims. Why were our citizens sent to capture the French, to spill their blood, and lay down their lives upon the high seas? To recover the claims. These were the whole matter. We had no other demand upon France, and, upon our part, no other cause of difference with her.
"What public, or national, or political object had we in the negotiation of 1800, which led to the treaty of the 30th September of that year? None, but to put an end to the existing hostilities, and to restore relations of peace and friendship. These could have been as well secured by negotiating upon a war as a peace basis. Indeed, as there were in our former treaties stipulations which we did not want to revive, a negotiation upon the basis of existing war was preferable, so far as the interests of the government were concerned, because that would put all questions, growing out of former treaties between the parties, for ever at rest. Still our negotiators consented to put the negotiation upon the basis of continued peace, and why? Because the adoption of a basis of existing war would have barred effectually and for ever all classes of the claims. This, Mr. W. said, was the only possible assignable reason for the course pursued by the American negotiators; it was the only reason growing out of the existing facts, or out of the interests, public or private, involved in the difficulties between the two nations. He therefore felt himself fully warranted in the conclusion, that the American ministers preferred and adopted a peace basis for the negotiation which resulted in the treaty of the 30th of September, 1800, solely from a wish, as far as they might be able, to save the interests of our citizens holding claims against France.
"Did they, Mr. President, said Mr. W., succeed by this artifice in benefiting the citizens who had sustained injuries? He would let the treaty speak for itself. The following are extracts from the 4th and 5th articles:
"'Art.4. Property captured, and not yet definitively condemned, or which may be captured before the exchange of ratifications (contraband goods destined to an enemy's port excepted), shall be mutually restored on the following proof of ownership.'
"[Here follows the form of proof, when the article proceeds:]
"'This article shall take effect from the date of the signature of the present convention. And if, from the date of the said signature, any property shall be condemned contrary to the intent of the said convention, before the knowledge of this stipulation shall be obtained, the property so condemned shall, without delay, be restored or paid for.'
"'Art.5. The debts contracted for by one of the two nations with individuals of the other, or by individuals of the one with individuals of the other, shall be paid, or the payment may be prosecuted in the same manner as if there had been no misunderstanding between the two States. But this clause shall not extend to indemnities claimed on account of captures or confiscations.'
"Here, Mr. W. said, was evidence from the treaty itself, that, by assuming a peace basis for the negotiation, the property of our merchants captured and not condemned was saved to them, and that certain classes of claimants against the French government were provided for, and their rights expressly reserved. So much, therefore, was gained by our negotiators by a departure from the facts, and negotiating to put an end to existing hostilities upon the basis of a continued peace. Was it, then, generous or just to permit these merchants, because our ministers did not succeed in saving all they claimed, to set up this implied admission of continued peace as the foundation of a liability against their own government to pay what was not recovered from France? He could not so consider it, and he felt sure the country never would consent to so responsible an implication from an act of excessive kindness. Mr. W. said he must not be understood as admitting that all was not, by the effect of this treaty, recovered from France, which she ever recognized to be due, or ever intended to pay. On the contrary, his best impression was, from what he had been able to learn of the claims, that the treaty of Louisiana provided for the payment of all the claims which France ever admitted, ever intended to pay, or which there was the most remote hope of recovering in any way whatever. He should, in a subsequent part of his remarks, have occasion to examine that treaty, the claims which were paid under it, and to compare the claims paid with those urged before the treaty of September, 1800.
"Mr. W. said he now came to the consideration of the liability of the United States to these claimants, in case it shall be determined by the Senate that a war between France and the United States had not existed to bar all ground of claim either against France or the United States. He understood the claimants to put this liability upon the assertion that the government of the United States had released their claims against France by the treaty of the 30th of September, 1800, and that the release was made for a full and valuable consideration passing to the United States, which in law and equity made it their duty to pay the claims. The consideration passing to the United States is alleged to be their release from the onerous obligations imposedupon them by the treaties of amity and commerce and alliance of 1778, and the consular convention of 1778, and especially and principally by the seventeenth article of the treaty of amity and commerce, in relation to armed vessels, privateers, and prizes, and by the eleventh article of the treaty of alliance containing the mutual guarantees.
"The release, Mr. W. said, was claimed to have been made in the striking out, by the Senate of the United States, of the second article of the treaty of 30th September, 1800, as that article was originally inserted and agreed upon by the respective negotiators of the two powers, as it stood at the time the treaty was signed. To cause this point to be clearly understood, it would be necessary for him to trouble the Senate with a history of the ratification of this treaty. The second article, as inserted by the negotiators, and as standing at the time of the signing of the treaty, was in the following words:
"'Art.2. The ministers plenipotentiary of the two powers not being able to agree, at present, respecting the treaty of alliance of 6th February, 1778, the treaty of amity and commerce of the same date, and the convention of 14th of November, 1788, nor upon the indemnities mutually due or claimed, the parties will negotiate further upon these subjects at a convenient time; and, until they may have agreed upon these points, the said treaties and convention shall have no operation, and the relations of the two countries shall be regulated as follows:'
"The residue of the treaty, Mr. W. said, was a substantial copy of the former treaties of amity and commerce, and alliance between the two nations, with such modifications as were desirable to both, and as experience under the former treaties had shown to be for the mutual interests of both.
"This second article was submitted to the Senate by the President as a part of the treaty, as by the constitution of the United States the President was bound to do, to the end that the treaty might be properly ratified on the part of the United States, the French government having previously adopted and ratified it as it was signed by the respective negotiators, the second article being then in the form given above. The Senate refused to advise and consent to this article, and expunged it from the treaty, inserting in its place the following:
"'It is agreed that the present convention shall be in force for the term of eight years from the time of the exchange of the ratifications.'
"In this shape, and with this modification the treaty was duly ratified by the President of the United States, and returned to the French government for its dissent or concurrence. Bonaparte, then First Consul, concurred in the modification made by the Senate, in the following language, and upon the condition therein expressed:
"'The government of the United States having added to its ratification that the convention should be in force for the space of eight years, and having omitted the second article, the government of the French Republic consents to accept, ratify, and confirm the above convention, with the addition, purporting that the convention shall be in force for the space of eight years, and with the retrenchment of the second article:Provided, That, by this retrenchment, the two States renounce the respective pretensions which are the object of the said article.'
"This ratification by the French Republic, thus qualified, was returned to the United States, and the treaty, with the respective conditional ratifications, was again submitted by the President of the United States to the Senate. That body 'resolved that they considered the said convention as fully ratified, and returned the same to the President for the usual promulgation;' whereupon he completed the ratification in the usual forms and by the usual publication.
"This, Mr. W. said, was the documentary history of this treaty and of its ratification, and here was the release of their claims relied upon by the claimants under the bill before the Senate. They contend that this second article of the treaty, as originally inserted by the negotiators, reserved their claims for future negotiation, and also reserved the subjects of disagreement under the treaties of amity and commerce, and of alliance, of 1778, and the consular convention of 1788; that the seventeenth article of the treaty of amity and commerce, and the eleventh article of the treaty of alliance, were particularly onerous upon the United States; that, to discharge the government from the onerous obligations imposed upon it in these two articles of the respective treaties, the Senate was induced to expunge the second article of the treaty of the 30th September above referred to, and, by consequence, to expunge the reservation of their claims as subjects of future negotiation between the two nations; that, in thus obtaining a discharge from the onerous obligations of these treaties, and especially of the two articles above designated, the United States was benefited to an amount beyond the whole value of the claims discharged, and that this benefit was the inducement to the expunging of the second article of the treaty, with a full knowledge that the act did discharge the claims, and create a legal and equitable obligation on the part of the government to pay them.
"These, Mr. W. said, he understood to be the assumptions of the claimants, and this their course of reasoning to arrive at the conclusion that the United States were liable to them for the amount of their claims. He must here raise a preliminary question, which he had satisfied himself would show which assumptions of the claimants to be wholly without foundation, so far as the idea of benefit to the United States was supposed to be derived from expunging this second article of the treaty of 1800. What, hemust be permitted to ask, would have been the liability of the United States under the 'onerous obligations' referred to, in case the Senate had ratified the treaty, retaining this second article? The binding force of the treaties of amity and commerce, and of alliance, and of the consular convention, was released, and the treaties and convention were themselves suspended by the very article in question; and the subjects of disagreement growing out of them were merely made matters of future negotiation 'at a convenient time.' What was the value or the burden of such an obligation upon the United States? for this was the only obligation from which our government was released by striking out the article. The value, Mr. W. said, was the value of the privilege, being at perfect liberty, in the premises, of assenting to or dissenting from a bad bargain, in a matter of negotiation between ourselves and a foreign power. This was the consideration passing to the United States, and, so far as he was able to view the subject, this was all the consideration the government had received, if it be granted (which he must by no means be understood to admit), that the striking out of the article was a release of the claims, and that such release was intended as a consideration for the benefits to accrue to the government from the act.
"Mr. W. said he felt bound to dwell, for a moment, upon this point. What was the value of an obligation to negotiate 'at a convenient time?' Was it any thing to be valued? The 'convenient time' might never arrive, or if it did arrive, and negotiations were opened, were not the government as much at liberty as in any other case of negotiation, to refuse propositions which were deemed disadvantageous to itself? The treaties were suspended, and could not be revived without the consent of the United States; and, of consequence, the 'onerous obligations' comprised in certain articles of these treaties were also suspended until the same consent should revive them. Could he, then, be mistaken in the conclusion that, if the treaty of 1800 had been ratified with the second article forming a part of it, as originally agreed by the negotiators, the United States would have been as effectually released from the onerous obligations of the former treaties, until those obligations should again be put in force by their consent, as they were released when that article was stricken out, and the treaty ratified without it? In short, could he be mistaken in the position that all the inducement, of a national character, to expunge that article from the treaty, was to get rid of an obligation to negotiate 'at a convenient time?' And could it be possible that such an inducement would have led the Senate of the United States, understanding this consequence, to impose upon the government a liability to the amount of $5,000,000? He could not adopt so absurd a supposition; and he felt himself compelled to say that this view of the action of the government in the ratification of the treaty of 1800, in his mind, put an end to the pretence that the striking out of this article relieved the United States from obligations so onerous as to form a valuable consideration for the payments provided for in this bill. He could not view the obligation released—a mere obligation to negotiate—as onerous at all, or as forming any consideration whatever for a pecuniary liability, much less for a liability for millions.
"Mr. W. said he now proposed to consider whether the effect of expunging the second article of the treaty of 1800 was to release any claim of value—any claim which France had ever acknowledged, or ever intended to pay. He had before shown, by extracts from the fourth and fifth articles of the treaty of 1800, that certain classes of claims were saved by that treaty, as it was ratified. The claims so reserved and provided for were paid in pursuance of provisions contained in the treaty between France and the United States, of the 30th of April, 1803; and to determine what claims were thus paid, a reference to some of the articles of that treaty was necessary. The purchase of Louisiana was made by the United States for the sum of 80,000,000 of francs, 60,000,000 of which were to be paid into the French treasury, and the remaining 20,000,000 were to be applied to the payment of these claims. Three separate treaties were made between the parties, bearing all the same date, the first providing for the cession of the territory, the second for the payment of the 60,000,000 of francs to the French treasury, and the third for the adjustment and payment of the claims.
"Mr. W. said the references proposed were to the last-named treaty, and were the following:
"'Art.1. The debts due by France to citizens of the United States, contracted before the 8th of Vendemiaire, ninth year of the French Republic (30th September, 1800), shall be paid according to the following regulations, with interest at six per cent., to commence from the period when the accounts and vouchers were presented to the French government.'
"'Art.2. The debts provided for by the preceding article are those whose result is comprised in the conjectural note annexed to the present convention, and which, with the interest, cannot exceed the sum of twenty millions of francs. The claims comprised in the said note, which fall within the exceptions of the following articles, shall not be admitted to the benefit of this provision.'
"'Art.4. It is expressly agreed that the preceding articles shall comprehend no debts but such as are due to citizens of the United States, who have been and are yet creditors of France, for supplies, for embargoes, and prizes made at sea, in which the appeal has been properly lodged within the time mentioned in the said convention of the 8th Vendemiaire, ninth year (30th September, 1800).'
"'Art.5. The preceding articles shall apply only, 1st, to captures of which the council ofprizes shall have ordered restitution, it being well understood that the claimant cannot have recourse to the United States otherwise than he might have had to the government of the French Republic, and only in case of the insufficiency of the captors; 2d, the debts mentioned in the said fifth article of the convention, contracted before the 8th Vendemiaire, and 9 (30th September, 1800), the payment of which has been heretofore claimed of the actual government of France, and for which the creditors have a right to the protection of the United States; the said fifth article does not comprehend prizes whose condemnation has been or shall be confirmed; it is the express intention of the contracting parties not to extend the benefit of the present convention to reclamations of American citizens, who shall have established houses of commerce in France, England, or other countries than the United States, in partnership with foreigners, and who by that reason and the nature of their commerce, ought to be regarded as domiciliated in the places where such houses exist. All agreements and bargains concerning merchandise, which shall not be the property of American citizens, are equally excepted from the benefit of the said convention, saving, however, to such persons their claims in like manner as if this treaty had not been made.
"From these provisions of the treaty, Mr. W. said, it would appear that the claims to be paid were of three descriptions, to wit:
"1. Claims for supplies.
"2. Claims for embargoes.
"3. Claims for captures made at sea, of a description defined in the last clause of the 4th and the first clause of the 5th article.
"How far these claims embraced all which France ever acknowledged, or ever intended to pay, Mr. W. said he was unable to say, as the time allowed him to examine the case had not permitted him to look sufficiently into the documents to make up his mind with precision upon this point. He had found, in a report made to the Senate on the 14th of January, 1831, in favor of this bill, by the honorable Mr. Livingston, then a Senator from the State of Louisiana, the following Classification of the French claims, as insisted on at a period before the making of the treaty of 1800, to wit:
"'1. From the capture and detention of about fifty vessels.
"'2. The detention, for a year, of eighty other vessels, under the Bordeaux embargo.
"'3. The non-payment of supplies to the West India islands, and to continental France.
"'4. For depredations committed on our commerce in the West Indies.
"Mr. W. said the comparison of the two classifications of claims would show, at a single view, that Nos. 2 and 3 in Mr. Livingston's list were provided for by the treaty of 1803, from which he had read. Whether any, and if any, what portions of Nos. 1 and 4 in Mr. Livingston's list were embraced in No 3 of the provisions of the treaty, as he had numbered them he was unable to say; but this much he could say, that he had found nothing to satisfy his mind that parts of both those classes of claims were not so included, and therefore provided for and paid under the treaty; nor had he been able to find any thing to show that this treaty of 1803 did not provide for and pay all the claims which France ever acknowledged or ever intended to pay. He was, therefore, unprepared to admit, and did not admit, that any thing of value to any class of individual claimants was released by expunging the second original article from the treaty of the 30th September, 1800. On the contrary, he was strongly impressed with the belief that the adjustment of claims provided for in the treaty of 1803 had gone to the whole extent to which the French government had, at any period of the negotiations, intended to go.
"Mr. W. said this impression was greatly strengthened by the circumstance that the claims under the Bordeaux embargo were expressly provided for in this treaty, while he could see nothing in the treaty of 1800 which seemed to him to authorize the supposition that this class of claims was more clearly embraced within the reservations in that treaty than any class which had been admitted by the French government.
"Another fact, Mr. W. said, was material to this subject, and should be borne carefully in mind by every senator. It was, that not a cent was paid by France, even upon the claims reserved and admitted by the treaty of 1800, until the sale of Louisiana to the United States, for a sum greater by thirty millions of francs than that for which the French minister was instructed to sell it. Yes, Mr. President, said Mr. W., the only payment yet made upon any portion of these claims has been virtually made by the United States; for it has been made out of the consideration money paid for Louisiana, after paying into the French treasury ten millions of francs beyond the price France herself placed upon the territory. It is a singular fact that the French negotiator was instructed to make the sale for fifty millions, if he could get no more; and when he found that, by yielding twenty millions to pay the claims, he could get eighty millions for the territory, and thus put ten millions more into the treasury of his nation than she had instructed him to ask for the whole, he yielded to the claims and closed the treaty. It was safe to say that, but for this speculation in the sale of Louisiana, not one dollar would have been paid upon the claims to this day. All our subsequent negotiations with France of a similar character, and our present relations with that country, growing out of private claims, justify this position. What, then, would have been the value of claims, if such fairly existed, which were not acknowledged and provided for by the treaty of 1800, but were left for future negotiation 'at a convenienttime?' Would they have been worth the five millions of dollars you propose to appropriate by this bill? Would they have been worth further negotiation? He thought they would not.
"Mr. W. said he would avail himself of this occasion, when speaking of the treaty of Louisiana and of its connection with these claims, to explain a mistake into which he had fallen, and which he found from conversation with several gentlemen, who had been for some years members of Congress, had been common to them and to himself. The mistake to which he alluded was, the supposition that the claimants under this bill put their case upon the assumption that their claims had constituted part of the consideration for which Louisiana had been ceded to the United States; and that the consideration they contended the government had received, and upon which its liability rested, was the cession of that territory for a less sum, in money, than was considered to be its value, on account of the release of the French government from those private claims. He had rested under this misapprehension until the opening of the present debate, and until he commenced an examination of the case. He then found that it was an entire misapprehension; that the United States had paid, in money, for Louisiana, thirty millions of francs beyond the price which France had set upon it; that the claimants under this bill did not rest their claims at all upon this basis, and that the friends of the bill in the Senate did not pretend to derive the liability of the government from this source. Mr. W. said he was induced to make this explanation in justice to himself, and because there might be some person within the hearing of his voice who might still be under the same misapprehension.
"He had now, Mr. W. said, attempted to establish the following propositions, viz.:
"1. That a state of actual war, by which he meant a state of actual hostilities and of force, and an interruption of all diplomatic or friendly intercourse between the United States and France, had existed from the time of the passage of the acts of the 7th and 9th of July, 1798, before referred to, until the sending of the negotiators, Ellsworth, Davie, and Murray, in 1800, to make a treaty which put an end to the hostilities existing, upon the best terms that could be obtained; and that the treaty of the 30th of September, 1800, concluded by these negotiators, was, in fact, and so far as private claims were concerned, to be considered as a treaty of peace, and to conclude all such claims, not reserved by it, as finally ratified by the two powers.
"2. That the treaty of amity and commerce, and the treaty of alliance of 1778, as well as the consular convention of 1788, were suspended by the 2d article of the treaty of 1800, and from that time became mere matters for negotiation between the parties at a convenient time; that, therefore, the desire to get rid of these treaties, and of any 'onerous obligations' contained in them, was only the desire to get rid of an obligation to negotiate 'at a convenient time;' and that such a consideration could not have induced the Senate of the United States to expunge that article from the treaty, if thereby that body had supposed it was imposing upon the country a liability to pay to its citizens the sum of five millions of dollars—a sum much larger than France had asked, in money, for a full discharge from the 'onerous obligations' relied upon.
"3. That the treaty of 1800 reserved and provided for certain portions of the claims; that payment, according to such reservations, was made under the treaty of 1803; and that it is at least doubtful whether the payment thus made did not cover all the claims ever admitted, or ever intended to be paid by France; for which reason the expunging of the second article of the treaty of 1800, by the Senate of the United States, in all probability, released nothing which ever had, or which was ever likely to have value.
"Mr. W. said, if he had been successful in establishing either of these positions, there was an end of the claims, and, by consequence, a defeat of the bill.
"The advocates of the bill conceded that two positions must be established, on their part, to sustain it, to wit:
"1. That the claims were valid claims against France, and had never been paid. And
"2. That they were released by the government of the United States for a full and valuable consideration passing to its benefit by means of the release.
"If, then, a state of war had existed, it would not be contended that any claims of this character, not reserved or provided for in the treaty of peace, were valid claims after the ratification of such a treaty. His first proposition, therefore, if sustained, would defeat the bill, by establishing the fact that the claims, if not reserved in the treaty of 1800, were not valid claims.
"The second proposition, if sustained, would establish the fact that, inasmuch as the valuable consideration passing to the United States was alleged to grow out of the 'onerous obligations' in the treaty of amity and commerce, the treaty of alliance, and the consular convention; and inasmuch as these treaties, and all obligations, past, present, or future, 'onerous' or otherwise, growing out of them, were suspended and made inoperative by the second article of the treaty of the 30th of September, 1800, until further negotiation, by the common consent of both powers, should revive them, the Senate of the United States could not have expected, when they expunged this article from the treaty, that, by thus discharging the government from an obligation to negotiate 'at a convenient time,' they were incurring against it aliability of millions; in other words, the discharge of the government from an obligation to negotiate upon any subject 'at a convenient time,' could not have been considered by the Senate of the United States as a good and valuable consideration for the payment of private claims to the amount of five millions of dollars.
"The third proposition, if sustained, would prove that all the claims ever acknowledged, or ever intended to be paid by France, were paid under the treaty of 1803, and that, therefore, as claims never admitted or recognized by France would scarcely be urged as valid claims against her, no valid claims remained; and, consequently, the expunging of the second article of the treaty of the 30th of September, 1800, released nothing which was valid, and nothing remained to be paid by the United States as a liability incurred by that modification of that treaty. Here Mr. W. said he would rest his reasoning as to these three propositions.
"But if the Senate should determine that he had been wrong in them all, and had failed to sustain either, he had still another proposition, which he considered conclusive and unanswerable, as to any valuable consideration for the release of these claims having passed to the United States in consequence of their discharge from the 'onerous obligations' said to have been contained in the former treaties. These 'onerous obligations,' and the only ones of which he had heard any thing in the course of the debate, or of which he had found any thing in the documents, arose under the 17th article of the treaty of amity and commerce, and the 11th article of the treaty of alliance; and, in relation to both, he laid down this broad proposition, which would be fully sustained by the treaties themselves, and by every act and every expression on the part of the American negotiators, and the government of the United States, viz.:
"'The obligations, liabilities, and responsibilities, imposed upon the government of the United States and upon France by the 17th article of the treaty of amity and commerce of 1778, and by the 11th article of the treaty of alliance of 1778, where mutual, reciprocal, and equal: each formed the consideration, and the only consideration, for the other; and, therefore, any release which discharged both powers from those liabilities, responsibilities, and obligations, must have been mutual, reciprocal, and equal; and the release of either must have formed a full and valuable consideration for the release of the other.'
"Mr. W. said he would not trouble the Senate by again reading the articles from the respective treaties. They would be recollected, and no one would controvert the fact that, when the treaties were made, these articles were intended to contain mutual, reciprocal, and equal obligations. By the first we gave to France the liberty of our ports for her armed vessels, privateers, and prizes, and prohibited all other powers from the enjoyment of the same privilege; and France gave to us the liberty of her ports for our armed vessels, privateers, and prizes, and guarded the privilege by the same prohibition to other powers; and by the second we guaranteed to France, for ever, her possessions in America, and France guaranteed to us, for ever, 'our liberty, sovereignty, and independence, absolute and unlimited, as well in matters of government as commerce.' Such were the obligations in their original inception. Will it be contended that they were not mutual, reciprocal, and equal, and that, in each instance, the one did not form the consideration for the other? Surely no one will take this ground.
"If, then, said Mr. W., the obligations imposed upon each government by these articles of the respective treaties were mutual, reciprocal, and equal, when undertaken, they must have remained equal until abrogated by war, or changed by treaty stipulation. No treaty, subsequent to those which contain the obligations, had affected them in any manner whatever. If, as he had attempted to show, war had existed from July, 1778, to 1800, that would not have rendered the obligations unequal, but would have abrogated them altogether. If, as the friends of the bill contend, there had been no war, and the treaties were in full force up to the signing of the convention of the 30th of September, 1800, what was the effect of that treaty, as originally signed by the negotiators, upon these mutual, reciprocal, and equal obligations? The second original article of that treaty will answer. It did not attempt to disturb their mutuality, reciprocity, or equality, but suspended them as they were, past, present, or future, and made all the subject of future negotiation 'at a convenient time.'
"But, Mr. W. said, the Senate of the United States expunged this article of the treaty of 1800, and refused to advise and consent to ratify it as a part of the treaty; and hence it was contended the United States had discharged themselves from the 'onerous obligations' of these articles in the respective treaties, and had, by that act, incurred, to the claimants under this bill, the heavy liability which it recognizes. If the expunging of that article discharged the United States from obligations thus onerous, did it not discharge France from the fellow obligations? Was not the discharge, made in that manner, as mutual, reciprocal, and equal, as the obligations in their inception, and in all their subsequent stages up to that act? How, then, could it be contended that the discharge of the one was not a full and adequate consideration for the discharge of the other? Nothing upon the face of the treaties authorized the introduction of this inequality at this step in the official proceedings. Nothing in the record of the proceedings of the Senate, when acting upon the article, indicates that they intended to pay five millions of dollars to render this mutual release equal between the two powers. The obligations and responsibilities were reserved as subjects offuture negotiation, upon terms of equality, and the striking out of that reservation was but a mutual and reciprocal and equal release from the obligation further to negotiate. This much for the reciprocity of these obligations as derived from the action of the sovereign powers themselves.
"What was to be learned from the action of their respective negotiators? He did not doubt but that attempts had been made on the part of France to exhibit an inequality in the obligations under the treaty, and to set up that inequality against the claims of our citizens; but had our negotiators ever admitted the inequality to exist, or ever attempted to compromise the rights of the claimants under this bill for such a consideration? He could not find that they had. He did not hear it contended that they had: and, from the evidence of their acts, remaining upon record, as a part of the diplomatic correspondence of the period, he could not suppose they had ever entertained the idea. He had said that the American negotiators had always treated these obligations as mutual, reciprocal, and equal; and he now proposed to read to the Senate a part of a letter from Messrs. Ellsworth, Davie, and Murray, addressed to the French negotiators, and containing the project of a treaty, to justify his assertion. The letter was dated 20th August, 1800, and it would be recollected that its authors were the negotiators, on the part of the United States, of the treaty of the 30th of September, 1800. The extract is as follows:
"'1. Let it be declared that the former treaties are renewed and confirmed, and shall have the same effect as if no misunderstanding between the two powers had intervened, except so far as they are derogated from by the present treaty.
"'2. It shall be optional with either party to pay to the other, within seven years, three millions of francs, in money or securities which may be issued for indemnities, and thereby to reduce the rights of the other as to privateers and prizes, to those of the most favored nation, And during the said term allowed for option, the right of both parties shall be limited by the line of the most favored nation.
"'3. The mutual guaranty in the treaty of alliance shall be so specified and limited, that its future obligation shall be, on the part of France, when the United States shall be attacked, to furnish and deliver at her own ports military stores to the amount of one million of francs; and, on the part of the United States, when the French possessions in America, in any future war, shall be attacked, to furnish and deliver at their own ports a like amount in provisions. It shall, moreover, be optional for either party to exonerate itself wholly of its obligation, by paying to the other, within seven years, a gross sum of five millions of francs, in money or such securities as may be issued for indemnities.'
"Mr. W. asked if he needed further proofs that not only the American government, but the American negotiators, treated these obligations under the treaty as, in all respects, mutual, reciprocal, and equal; and if the fallacy of the argument that the United States had obtained to itself a valuable consideration for the release of these private claims in the release of itself from these obligations, was not utterly and entirely disproved by these facts? Was not the release of the obligations on the one side the release of them on the other? And was not the one release the necessary consideration for the other? How, then, could it be said, with any justice, that we sought our release at the expense of the claimants? There was no reasonable ground for such an allegation, either from the acts of our government or of our negotiators. When the latter fixed a value upon our obligations as to the privateers and prizes, and as to the guaranty, in the same article they fixed the same price, to a franc, upon the reciprocal obligations of France; and when the former discharged our liability, by expunging the second article of the treaty of 1800, the same act discharged the corresponding liability of the French government.
"Here, then, Mr. W. said, must end all pretence of a valuable consideration for these claims passing to the United States from this source. The onerous obligations were mutual, reciprocal, and equal, and the respective releases were mutual, reciprocal, and equal, and simultaneous, and nothing could be fairly drawn from the act which operated these mutual releases to benefit these claimants.
"Mr. W. said he was, then, necessarily brought back to the proposition with which he started in the commencement of his argument, that, if the United States were liable to pay these claimants, that liability must rest upon the broad ground of a failure by the government, after ordinary, and, in this instance, extraordinary efforts to collect the money. The idea of a release of the claims for a valuable consideration passing to the government had been exploded, and, if a liability was to be claimed on account of a failure to collect the money, upon what ground did it rest? What had the government done to protect the rights of these claimants? It had negotiated from 1793 to 1798, with a vigilance and zeal and talent almost unprecedented in the history of diplomacy. It had sent to France minister after minister, and, upon several occasions, extraordinary missions composed of several individuals. Between 1798 and 1800, it had equipped fleets and armies, expended millions in warlike preparation, and finally sent forth its citizens to battle and death, to force the payment of the claims. Were we now to be told, that our failure in these efforts had created a liability against us to pay the money? That the same citizens who had been taxed to pay the expenses of these long negotiations, and of this war for the claims, were to be further taxed to pay such of the claims as we had failed to collect?He could never consent to such a deduction from such premises.
"But, Mr. President, said Mr. W., there is another view of this subject, placed upon this basis, which renders this bill of trifling importance in the comparison. If the failure to collect these claims has created the liability to pay them, that liability goes to the extent of the claims proved, and the interest upon them, not to a partial, and perhaps trifling, dividend. Who, then, would undertake to say what amount of claims might not be proved during the state of things he had described, from the breaking out of the war between France and England, in 1793, to the execution of the treaty, in 1800? For a great portion of the period, the municipal regulations of France required the captured cargoes to be not confiscated, but paid for at the market value at the port to which the vessel was destined. Still the capture would be proved, the value of the cargo ascertained, before the commission which the bill proposes to establish; and who would adduce the proof that the same cargo was paid for by the French government?
"This principle, however, Mr. W. said, went much further than the whole subject of the old French claims. It extended to all claims for spoliations upon our commerce, since the existence of the government, which we had failed to collect. Who could say where the liability would end? In how many cases had claims of this character been settled by treaty, what had been collected in each case, and what amount remained unpaid, after the release of the foreign government? He had made an unsuccessful effort to answer these inquiries, so far as the files of the state department would furnish the information, as he had found that it could only be collected by an examination of each individual claim; and this would impose a labor upon the department of an unreasonable character, and would occupy more time than remained to furnish the information for his use upon the present occasion. He had, however, been favored by the Secretary of State with the amounts allowed by the commissioners, the amounts paid, and the rate of pay upon the principal, in two recent cases, the Florida treaty, and the treaty with Denmark. In the former instance, the payment was ninety-one and two thirds per centum upon the principal, while in the latter it was but thirty-one and one eighth per centum. Assume that these two cases are the maximum and minimum of all the cases where releases have been given for partial payments; and he begged the Senate to reflect upon the amounts unpaid which might be called from the national treasury, if the principle were once admitted that a failure to collect creates a liability to pay.
"That in his assumption that a liability of this sort must go to the whole amount of the claims, he only took the ground contended for by the friends of this bill, he would trouble the Senate with another extract from the report of Mr. Livingston, from which he had before read. In speaking of the amount which should be appropriated, Mr. Livingston says:
"'The only remaining inquiry is the amount; and on this point the committee have had some difficulty. Two modes of measuring the compensation suggested themselves:
"'1. The actual loss sustained by the petitioners.
"'2. The value of the advantages received, as the consideration, by the United States.
"'The first is the one demanded by strict justice; and is the only one that satisfies the word used by the constitution, which requires just compensation, which cannot be said to have been made when any thing less than the full value is given. But there were difficulties which appeared insurmountable, to the adoption of this rule at the present day, arising from the multiplicity of the claims, the nature of the depredations which occasioned them, the loss of documents, either by the lapse of time, or the wilful destruction of them by the depredators. The committee, therefore, could not undertake to provide a specific relief for each of the petitioners. But they have recommended the institution of a board, to enter into the investigation, and apportion a sum which the committee have recommended to be appropriated,pro rata, among the several claimants.'
"'The committee could not believe that the amount of compensation to the sufferers should be calculated by the advantages secured to the United States, because it was not, according to their ideas, the true measure. If the property of an individual be taken for public use, and the government miscalculate, and find that the object to which they have applied it has been injurious rather than beneficial, the value of the property is still due to the owner, who ought not to suffer for the false speculations which have been made. A turnpike or canal may be very unproductive; but the owner of the land which has been taken for its construction is not the less entitled to its value. On the other hand, he can have no manner of right to more than the value of his property, be the object to which it has been applied ever so beneficial.'
"Here, Mr. W. said, were two proposed grounds of estimating the extent of the liability of the government to the claimants; and that which graduated it by the value received by the government was distinctly rejected, while that making the amount of the claims the measure of liability, was as distinctly asserted to be the true and just standard. He hoped he had shown, to the satisfaction of the Senate, that the former rule of value received by the government would allow the claimants nothing at all, while he was compelled to say that, upon the broad principle that a failure to collect creates a liability to pay, he could not controvert the correctness of the conclusion that the liability must be commensurate with the claim. He could controvert, hethought, successfully, the principle, but he could not the measure of damages when the principle was conceded. He would here conclude his remarks upon the points he had noticed, by the earnest declaration that he believed the passage of this bill would open more widely the doors of the public treasury than any legislation of which he had any knowledge, or to which Congress had ever yielded its assent.
"Mr. W. said he had a few observations to offer relative to the mode of legislation proposed, and to the details of the bill, and he would trouble the Senate no further.
"His first objection, under this head, was to the mode of legislation. If the government be liable to pay these claims, the claimants are citizens of the country, and Congress is as accessible to them as to other claimants who have demands against the treasury. Why were they not permitted, individually, to apply to Congress to establish their respective claims, as other claimants were bound to do, and to receive such relief, in each case, as Congress, in its wisdom, should see fit to grant? Why were these claims, more than others, grouped together, and attempted to be made a matter of national importance? Why was a commission to be established to ascertain their validity, a duty in ordinary cases discharged by Congress itself? Were the Senate sure that much of the importance given to those claims had not proceeded from this association, and from the formidable amount thus presented at one view? Would any gentleman be able to convince himself that, acting upon a single claim in this immense mass, he should have given it his favorable consideration? For his part, he considered the mode of legislation unusual and objectionable. His principal objections to the details were, that the second section of the bill prescribed the rules which should govern the commission in deciding upon the claims, among which 'the former treaties between the United States and France' were enumerated; and that the bill contained no declaration that the payments made under it were in full of the claims, or that the respective claimants should execute a release, as a condition of receiving their dividends.
"The first objection was predicated upon the fact that the bill covered the whole period from the making of the treaties of 1778, to that of the 30th September, 1800, and made the former treaties the rule of adjudication, when Congress on the 7th July, 1798, by a deliberate legislative act, declared those treaties void, and no longer binding upon the United States or their citizens. It is a fact abundantly proved by the documents, that a large portion of the claims now to be paid, arose within the period last alluded to; and that treaties declared to be void should be made the law in determining what were and what were not illegal captures, during the time that they were held to have no force, and when our citizens were authorized by law to go upon the high seas, regardless of their provisions, Mr. W. said, would seem to him to be an absurdity which the Senate would not legalize. He was fully aware that the first section of the bill purported to provide for 'valid claims to indemnity upon the French government, arising out of illegal captures, detentions, forcible seizures, illegal condemnations, and confiscations;' but it could not be overlooked that illegal captures, condemnations, and confiscations, must relate entirely to the law which was to govern the adjudication; and if that law was a void treaty which the claimants were not bound to observe, and did not observe, was it not more than possible that a capture, condemnation, or confiscation, might, by compulsion, be adjudged illegal under the rule fixed by the bill, while that same capture, condemnation, or confiscation, was strictly legal under the laws which governed the commerce of the claimant when the capture was made? He must say that it appeared clear to his mind that the rule of adjudication upon the validity of claims of this description, should, in all cases, be the same rule which governed the commerce out of which the claims have arisen.
"His second objection, Mr. W. said, was made more as a wish that a record of the intentions of the present Congress should be preserved upon the face of the bill, than from any idea that the provision suggested would afford the least protection to the public treasury. Every day's legislation showed the futility of the insertion in an act of Congress of a declaration that the appropriation made should be in full of a claim; and in this, as in other like cases, should this bill pass, he did not expect that it would be, in practice, any thing more than an instalment upon the claims which would be sustained before the commission. The files of the state department would contain the record evidence of the balance, with the admission of the government, in the passage of this bill, that an equal liability remained to pay that balance, whatever it might be. Even a release from the respective claimants he should consider as likely to have no other effect than to change their future applications from a demand of legal right, which they now assume to have, to one of equity and favor; and he was yet to see that the latter would not be as successful as the former. He must give his vote against the bill, whether modified in that particular or not, and he should do so under the most full and clear conviction, that it was a proposition fraught with greater dangers to the public treasury, than any law which had ever yet received the assent of Congress."