Thirty Years' View (Vol. I of 2)

"'The ministers plenipotentiary of the French Republic have read attentively the proposition for a plan of negotiation which was communicated to them by the envoys extraordinary and ministers plenipotentiary of the United States of America.

"'They think that the first object of the negotiation ought to be the determination of the regulations, and the steps to be followed for the estimation and indemnification of injuries for which either nation may make claim for itself, or for any of its citizens. And that the second object is to assure the execution of treaties of friendship and commerce made between the two nations, and the accomplishment of the views of reciprocal advantages which suggested them.'

"It is certain, therefore, that the negotiation commenced in the recognition, by both parties, of the existence of individual claims, and of the justice of making satisfaction for them; and it is equally clear that, throughout the whole negotiation, neither party suggested that these claims had already been either satisfied or extinguished; and it is indisputable that the treaty itself, in the second article, expressly admitted their existence, and solemly recognized the duty of providing for them at some future period.

"It will be observed, sir, that the French negotiators, in their first letter, while they admit the justice of providing indemnity for individual claims, bring forward, also, claims arising under treaties; taking care, thus early, to advance the pretensions of France on account of alleged violations by the United States of the treaties of 1778. On that part of the case, I shall say something hereafter; but I use this first letter of the French ministers at present only to show that, from the first, the French government admitted its obligation to indemnify individuals who had suffered wrongs and injuries.

"The honorable member from New-York [Mr. Wright] contends, sir, that, at the time of concluding the treaty, these claims had ceased to exist. He says that a war had taken place between the United States and France, and by the war the claims had become extinguished. I differ from the honorable member, both as to the fact of war, and as to the consequences to be deduced from it, in this case, even if public war had existed. If we admit, for argument sake, that war had existed, yet we find that, on the restoration of amity, both parties admit the justice of these claims and their continued existence, and the party against which they are preferred acknowledges her obligation, and expresses her willingness to pay them. The mere fact of war can never extinguish any claim. If, indeed, claims for indemnity be the professed ground of a war, and peace be afterwards concluded without obtaining any acknowledgment of the right, such a peace may be construed to be a relinquishment of the right, on the ground that the question has been put to the arbitration of the sword, and decided. But, if a war be waged to enforce a disputed claim, and it be carried on till the adverse party admit the claim, and agree to provide for its payment, it would be strange, indeed, to hold that the claim itself was extinguished by the very war which had compelled its express recognition. Now, whatever we call that state of things which existed between the United States and France from 1798 to 1800, it is evident that neither party contended or supposed that it had been such a state of things as had extinguished individual claims for indemnity for illegal seizures and confiscations.

"The honorable member, sir, to sustain his point, must prove that the United States went to war to vindicate these claims; that they waged that war unsuccessfully; and that they were therefore glad to make peace, without obtaining payment of the claims, or any admission of their justice. I am happy, sir, to say that, in my opinion, facts do not authorize any such record to be made up against the United States. I think it is clear, sir, that whatever misunderstanding existed between the United States and France, it did not amount, at any time, to open and public war. It is certain that the amicable relations of the two countries were much disturbed; it is certain that the United States authorized armed resistance to French captures, and the captures of French vessels of war found hovering on our coast; but it is certain, also, not only that there was no declaration of war, on either side, but that the United States, under all their provocations, did never authorize general reprisals on French commerce. At the very moment when the gentleman says war raged between the United States and France, French citizens came into our courts, in their own names, claimed restitution for property seized by American cruisers, and obtained decrees of restitution. They claimed as citizens of France and obtained restoration, in our courts, as citizens of France. It must have been a singular war, sir, in which such proceedings could take place. Upon a fair view of the whole matter, Mr. President, it will be found, I think, that every thing done by the United States was defensive. No part of it was ever retaliatory. The United States do not take justice into their own hands.

"The strongest measure, perhaps, adopted by Congress, was the act of May 28, 1798. The honorable member from New-York has referred to this act, and chiefly relies upon it, to prove the existence, or the commencement, of actual war. But does it prove either the one or the other?

"It is not an act declaring war; it is not an act authorizing reprisals; it is not an act which, in any way, acknowledges the actual existence of war. Its whole implication and import is the other way. Its title is, 'An act more effectually to protect the commerce and coasts of the United States.'

"This is its preamble:

"'Whereas armed vessels, sailing under authority, or pretence of authority, from the Republic of France, have committed depredations on the commerce of the United States, and have recently captured the vessels and property of citizens thereof, on and near the coasts, in violation of the law of nations, and treaties between the United States and the French nation: therefore' —

"And then follows its only section, in these words:

"'Sec. 1. Be it enacted, &c., That it shall be lawful for the President of the United States, and he is hereby authorized, to instruct and direct the commanders of the armed vessels belonging to the United States, to seize, take, and bring into any port of the United States, to be proceeded against according to the laws of nations, any such armed vessel which shall have committed, or which shall be found hovering on the coasts of the United States for the purpose of committing, depredations on the vessels belonging to citizens thereof; and also retake any ship or vessel, of any citizen or citizens of the United States, which may have been captured by any such armed vessel.'

"This act, it is true, authorized the use of force, under certain circumstances, and for certain objects, against French vessels. But there may be acts of authorized force, there may be assaults, there may be battles, there may be captures of ships and imprisonment of persons, and yet no general war. Cases of this kind may occur under that practice of retortion which is justified, when adopted for just cause, by the laws and usages of nations, and which all the writers distinguish from general war.

"The first provision in this law is purely preventive and defensive; and the other hardly goes beyond it. Armed vessels hovering on our coast, and capturing our vessels, under authority, or pretence of authority, from a foreign state, might be captured and brought in, and vessels already seized by them retaken. The act is limited to armed vessels; but why was this, if general war existed? Why was not the naval power of the country let loose at once, if there were war, against the commerce of the enemy? The cruisers of France were preying on our commerce; if there was war, why were we restrained from general reprisals on her commerce? This restraining of the operation of our naval marine to armed vessels of France, and to such of them only as should be found hovering on our coast, for the purpose of committing depredations on our commerce, instead of proving a state of war, proves, I think, irresistibly, that a state of general war did not exist. But even if this act of Congress left the matter doubtful, other acts passed at and near the same time demonstrate the understanding of Congress to have been, that although the relations between the two countries were greatly disturbed, yet that war did not exist. On the same day (May 28, 1798) in which this act passed, on which the member from New-York lays so much stress, as proving the actual existence of war with France, Congress passed another act, entitled 'An act authorizing the President of the United States to raise a provisional army;' and the first section declared that the President should be authorized, 'in the event of a declaration of war against the United States, or of actual invasion of their territory by a foreign power, or of imminent danger of such invasion, to cause to be enlisted,' &c., ten thousand men.

"On the 16th of July following, Congress passed the law for augmenting the army, the second section of which authorized the President to raise twelve additional regiments of infantry, and six troops of light dragoons, 'to be enlisted for and during the continuance of the existing differences between the United States and the French Republic, unless sooner discharged,' &c.

"The following spring, by the act of the 2d of March, 1799, entitled 'An act giving eventual authority to the President of the United States to augment the army,' Congress provided that it should be lawful for the President of the United States, in case war should break out between the United States and a foreign European power, &c., to raise twenty-four regiments of infantry, &c. And in the act for better organizing the army, passed the next day, Congress repeats the declaration, contained in a former act, that certain provisions shall not take effect unless war shall break out between the United States and some European prince, potentate, or state.

"On the 20th of February, 1800, an act was passed to suspend the act for augmenting the army; and this last act declared that further enlistments should be suspended until the further order of Congress, unless in the recess of Congress and during the continuance of the existing differences between the United States and the French Republic, war should break out between the United States and the French Republic, or imminent danger of an invasion of their territory by the said Republic should be discovered.

"On the 14th of May, 1800, four months before the conclusion of the treaty, Congress passed an act authorizing the suspension of military appointments, and the discharge of troops under the provisions of the previous laws. No commentary is necessary, sir, on the texts of these statutes, to show that Congress never recognized the existence of war between the United States and France. They apprehended war might break out; and they made suitable provision for that exigency, should it occur; but it is quite impossible to reconcile the express and so often repeated declarations of these statutes, commencing in 1798, running through 1799, and ending in 1800, with the actual existence of war between the two countries at any period within those years.

"The honorable member's second principal source of argument, to make out the fact of a state of war, is the several non-intercourse acts. And here again it seems to me an exactly opposite inference is the true one. In 1798, 1799, and 1800, acts of Congress were passed suspending the commercial intercourse between the United States, each for one year. Did any government ever pass a law of temporary non-intercourse with a public enemy? Such a law would be little less than an absurdity. War itself effectually creates non-intercourse. It renders all trade with the enemy illegal, and, of course, subjects all vessels found so engaged, with their cargoes, to capture and condemnation as enemy's property. The first of these laws was passed June 13, 1798, the last, February 27, 1800. Will the honorable member from New-York tell us when the war commenced? When did it break out? When did those 'differences,' of which the acts of Congress speak, assume a character of general hostility? Was there a state of war on the 13th of June, 1798, when Congress passed the first non-intercourse act; and did Congress, in a state of public war, limit non-intercourse with the enemy to one year? Or was there a state of peace in June, 1798? and, if so, I ask again, at what time after that period, and before September, 1800, did the war break out? Difficulties of no small magnitude surround the gentleman, I think, whatever course he takes through these statutes, while he attempts to prove from them a state of war. The truth is, they prove, incontestably, a state of peace; a state of endangered, disturbed, agitated peace; but still a state of peace. Finding themselves in a state of great misunderstanding and contention with France, and seeing our commerce a daily prey to the rapacity of her cruisers, the United States preferred non-intercourse to war. This is the ground of the non-intercourse acts. Apprehending, nevertheless, that war might break out, Congress made prudent provision for it by augmenting the military force of the country. This is the ground of the laws for raising a provisional army. The entire provisions of all these laws necessarily suppose an existing state of peace; but they imply also an apprehension that war might commence. For a state of actual war they were all unsuited; and some of them would have been, in such a state, preposterous and absurd. To a state of present peace, but disturbed, interrupted, and likely to terminate in open hostilities, they were all perfectly well adapted. And as many of these acts, in express terms, speak of war as not actually existing, but as likely or liable to break out, it is clear, beyond all reasonable question, that Congress never, at any time, regarded the state of things existing between the United States and France as being a state of war.

"As little did the executive government so regard it, as must be apparent from the instructions given to our ministers, when the mission was sent to France. Those instructions, having recurred to the numerous acts of wrong committed on the commerce of the United States, and the refusal of indemnity by the government of France, proceed to say: 'This conduct of the French Republic would well have justified an immediate declaration of war on the part of the United States; but, desirous of maintaining peace, and still willing to leave open the door of reconciliation with France, the United States contented themselves with preparations for defence, and measures calculated to protect their commerce.'

"It is equally clear, on the other hand, that neither the French government nor the French ministers acted on the supposition that war had existed between the two nations. And it was for this reason that they held the treaties of 1778 still binding. Within a month or two of the signature of the treaty, the ministers plenipotentiary of the French Republic write thus to Messrs. Ellsworth, Davie, and Murray: 'In the first place, they will insist upon the principle already laid down in their former note, viz.: that the treaties which united France and the United States are not broken; that even war could not have broken them; but that the state of misunderstanding which existed for some time between France and the United States, by the act of some agents rather than by the will of the respective governments, has not been a state of war, at least on the side of France.'

"Finally, sir, the treaty itself, what is it? It is not called a treaty of peace; it does not provide for putting an end to hostilities. It says not one word of any preceding war; but it does say that 'differences' have arisen between the two states, and that they have, therefore, respectively, appointed their plenipotentiaries, and given them full powers to treat upon those 'differences,' and to terminate the same.

"But the second article of the treaty, as negotiated and agreed on by the ministers of both governments, is, of itself, a complete refutation of the whole argument which is urged against this bill, on the ground that the claims had been extinguished by war, since that article distinctly and expressly acknowledges the existence of the claims, and contains a solemn pledge that the two governments, not being able to agree on them at present, will negotiate further on them, at convenient time thereafter. Whether we look, then, to the decisions of the American courts, to the acts of Congress, to the instructions of the American executive government, to the language of our ministers, to the declarations of the French government and the French ministers, or to the unequivocal language of the treaty itself, as originally agreed to, we meet irresistible proof of the truth of the declaration, that the state of misunderstanding which had existed between the two countries was not war.

"If the treaty had remained as the ministers on both sides agreed upon it, the claimants, though their indemnity was postponed, would have had no just claim on their own government. But the treaty did not remain in this state. This second article was stricken out by the Senate; and, in order to see the obvious motive of the Senate in thus striking out the second article, allow me to read the whole article. It is in these words:

"'The ministers plenipotentiary of the two parties not being able to agree, at present, respecting the treaty of alliance of the 6th of February, 1778, the treaty of amity and commerce of the same date, and the convention of the 14th of November, 1788, nor upon the indemnities mutually due or claimed, the parties will negotiate further on these subjects at a convenient time, and until they may have agreed upon these points, the said treaties and convention shall have no operation, and the relations of the two countries shall be regulated as follows.'

"The article thus stipulating to make the claims of France, under the old treaties, matter of further negotiation, in order to get rid of such negotiation, and the whole subject, the Senate struck out the entire article, and ratified the treaty in this corrected form. France ratified the treaty, as thus amended, with the further declaration that, by thus retrenching the second article, the two nations renounce the respective pretensions which were the object of the article. In this declaration of the French government, the Senate afterwards acquiesced; so that the government of France, by this retrenchment, agreed to renounce her claims under the treaties of 1778, and the United States, in like manner, renounced the claims of their citizens for indemnities due to them.

"And this proves, sir, the second proposition which I stated at the commencement of my remarks, viz.: that these claims were released, relinquished, or extinguished, by the amendment of the treaty, and its ratification as amended. It is only necessary to add, on this point, that these claims for captures before 1800 would have been good claims under the late treaty with France, and would have come in for a dividend in the fund provided by that treaty, if they had not been released by the treaty of 1800. And they are now excluded from all participation in the benefit of the late treaty, because of such release or extinguishment by that of 1800.

"In the third place, sir, it is to be proved, if it be not proved already, that these claims were surrendered, or released by the government of the United States, on national considerations, and for objects in which these claimants had no more interest than any other citizens.

"Now, sir, I do not feel called on to make out that the claims and complaints of France against the government of the United States were well founded. It is certain that she put forth such claims and complaints, and insisted on them to the end. It is certain that, by the treaty of alliance of 1778, the United States did guaranty to France her West India possessions. It is certain that, by the treaty of commerce of the same date, the United States stipulated that French vessels of war might bring their prizes into the ports of the United States, and that the enemies of France should not enjoy that privilege; and it is certain that France contended that the United States had plainly violated this article, as well by their subsequent treaty with England as by other acts of the government. For the violation of these treaties she claimed indemnity from the government of the United States. Without admitting the justice of these pretensions, the government of the United States found them extremely embarrassing, and they authorized our ministers in France to buy them off by money.

"For the purpose of showing the justice of the present bill, it is not necessary to insist that France was right in these pretensions. Right or wrong, the United States were anxious to get rid of the embarrassments which they occasioned. They were willing to compromise the matter. The existing state of things, then, was exactly this:

"France admitted that citizens of the United States had just claims against her; but she insisted that she, on the other hand, had just claims against the government of the United States.

"She would not satisfy our citizens, till our government agreed to satisfy her. Finally, a treaty is ratified, by which the claims on both sides are renounced.

"The only question is, whether the relinquishment of these individual claims was the price which the United States paid for the relinquishment, by France, of her claims against our government? And who can doubt it? Look to the negotiation; the claims on both sides were discussed together. Look to the second article of the treaty, as originally agreed to; the claims on both sides are there reserved together. And look to the Senate's amendment, and to the subsequent declaration of the French government, acquiesced in by the Senate; and there the claims on both sides are renounced together. What stronger proof could there be of mutuality of consideration? Sir, allow me to put this direct question to the honorable member from New-York. If the United States did not agree to renounce these claims, in consideration that France would renounce hers, what was the reason why they surrendered thus the claims of their own citizens? Did they do it without any consideration at all? Was the surrender wholly gratuitous? Did they thus solemnly renounce claims for indemnity, so just, so long insisted on by themselves, the object of two special missions, the subjects of so much previous controversy, and at one time so near being the cause of open war – did the government surrender and renounce them gratuitously, or for nothing? Had it no reasonable motive in the relinquishment? Sir, it is impossible to maintain any such ground.

"And, on the other hand, let me ask, was it for nothing that France relinquished, what she had so long insisted on, the obligation of the United States to fulfil the treaties of 1778? For the extinguishment of this obligation we had already offered her a large sum of money, which she had declined. Was she now willing to give it up without any equivalent?

"Sir, the whole history of the negotiation is full of proof that the individual claims of our citizens, and the government claims of France against the United States, constituted the respective demands of the two parties. They were brought forward together, discussed together, insisted on together. The French ministers would never consent to disconnect them. While they admitted, in the fullest manner, the claims on our side, they maintained, with persevering resolution, the claims on the side of France. It would fatigue the Senate were I to go through the whole correspondence, and show, as I could easily do, that, in every stage of the negotiation, these two subjects were kept together. I will only refer to some of the more prominent and decisive parts.

"In the first place, the general instructions which our ministers received from our own government, when they undertook the mission, directed them to insist on the claims of American citizens against France, to propose a joint board of commissioners to state those claims, and to agree to refer the claims of France for infringements of the treaty of commerce to the same board. I will read, sir, so much of the instructions as comprehend these points:

"'1. At the opening of the negotiation you will inform the French ministers that the United States expect from France, as an indispensable condition of the treaty, a stipulation to make to the citizens of the United States full compensation for all losses and damages which they shall have sustained by reason of irregular or illegal captures or condemnations of their vessels and other property, under color of authority or commissions from the French Republic or its agents. And all captures and condemnations are deemed irregular or illegal when contrary to the law of nations, generally received and acknowledged in Europe, and to the stipulations in the treaty of amity and commerce of the 6th of February, 1778, fairly and ingenuously interpreted, while that treaty remained in force.'

"'2. If these preliminaries should be satisfactorily arranged, then, for the purpose of examining and adjusting all the claims of our citizens, it will be necessary to provide for the appointment of a board of commissioners, similar to that described in the sixth and seventh articles of the treaty of amity and commerce between the United States and Great Britain.'

"'As the French government have heretofore complained of infringements of the treaty of amity and commerce, by the United States or their citizens, all claims for injuries, thereby occasioned to France or its citizens, are to be submitted to the same board; and whatever damages they award will be allowed by the United States, and deducted from the sums awarded to be paid by France.'

"Now, sir, suppose this board had been constituted, and suppose that it had made awards against France, in behalf of citizens of the United States, and had made awards also in favor of the government of France against the government of the United States; and then these last awards had been deducted from the amount of the former, and the property of citizens thus applied to discharge the public obligations of the country, would any body doubt that such citizens would be entitled to indemnity? And are they less entitled, because, instead of being first liquidated and ascertained, and then set off, one against the other, they are finally agreed to be set off against each other, and mutually relinquished in the lump?

"Acting upon their instructions, it will be seen that the American ministers made an actual offer to suspend the claim for indemnities till France should be satisfied as to her political rights under the treaties. On the 15th of July they made this proposition to the French negotiators:

"'Indemnities to be ascertained and secured in the manner proposed in our project of a treaty, but not to be paid until the United States shall have offered to France an article stipulating free admission, in the ports of each, for the privateers and prizes of the other, to the exclusion of their enemies.'

"This, it will be at once seen, was a direct offer to suspend the claims of our own citizens till our government should be willing to renew to France the obligation of the treaty of 1778. Was not this an offer to make use of private property for public purposes?

"On the 11th of August, the French plenipotentiaries thus write to the ministers of the United States:

"'The propositions which the French ministers have the honor to communicate to the ministers plenipotentiary of the United States are reduced to this simple alternative:

"'Either the ancient treaties, with the privileges resulting from priority, and a stipulation of reciprocal indemnities;

"'Or a new treaty, assuring equality without indemnity.'

"In other words, this offer is, 'if you will acknowledge or renew the obligation of the old treaties, which secure to us privileges in your ports which our enemies are not to enjoy, then we will make indemnities for the losses of your citizens; or, if you will give up all claim for such indemnities, then we will relinquish our especial privileges under the former treaties, and agree to a new treaty which shall only put us on a footing of equality with Great Britain, our enemy.'

"On the 20th of August our ministers propose that the former treaties, so far as they respect the rights of privateers, shall be renewed; but that it shall be optional with the United States, by the payment, within seven years, of three millions of francs, either in money or in securities issued by the French government for indemnities to our citizens, to buy off this obligation, or to buy off all its political obligations, under both the old treaties, by payment in like manner of five millions of francs.

"On the 4th of September the French ministers submit these propositions.