Charles Sumner: his complete works, volume 11 (of 20)

by Charles Sumner

STATEMENT OF THE QUESTION.

Therefore, putting aside all preliminary objections from alleged antiquity, from the character of the actual possessors, or from the present condition of the country, the Committee insist that the present obligations of the United States must be determined according to principles of justice and the facts of the case. The hearing now is as if there had been no lapse of time since the obligations accrued, and as if no war now existed to task the country.

Is the money justly due? To answer this question, the subject must be considered in detail, under several heads.

First. Claims of citizens of the United States against France, founded on spoliations of our commerce, as seen in their origin and history.

Secondly. Counter claims of France, founded on treaty stipulations and services rendered in the War of Independence, also as seen in their origin and history.

Thirdly. The Convention of 1800 and the reciprocal release of the two Governments, by which the “individual” claims of the petitioners were treated as a set-off to the “national” claims of France.

Fourthly. The assumption by our Government of the obligations of France, so that the United States were substituted for France, and became liable to these petitioners as France had been liable.

After considering these heads in their order, it will be proper to review the objections alleged against the liability of the United States: (1.) from the semi-hostile relations between France and the United States anterior to the Convention; (2.) from payments under the Louisiana Treaty; (3.) from payments under the Convention with France in 1831; (4.) from the Act of Congress annulling the early treaties with France; (5.) from the early efforts of our Government to obtain from France the satisfaction of these claims; and (6.) from the desperate character attributed to these claims at the time of their abandonment.

The question of “just compensation” will present itself last: (1.) in the advantages secured to the United States by the sacrifice of these claims; (2.) in the value of the losses which the claimants suffered; and (3.) in the recommendation of the Committee.

The subject is of such importance, from the magnitude of interests involved, and from its historic character, that the minuteness of this inquiry will not be regarded as superfluous.

I.
CLAIMS OF AMERICAN CITIZENS IN THEIR ORIGIN AND HISTORY.

The history of French spoliations on our commerce is a gloomy chapter, where a friendly power, assuming the name of Republic, shows itself fitful, passionate, and unjust. This conduct is more remarkable, when it is considered, that, only a short time before, France, while yet a kingdom, contributed treasure and blood to sustain our national independence. And yet an explanation may be found in the extraordinary temper of the times. By a generous uprising of the people the kingdom was overthrown, and then, as the alarmed royalties of Europe intervened, the head of the monarch was flung to them as a gage of battle. The gage had been accepted in advance, and all those royalties, by successive treaties, entered into coalition against France. The fleets of England came tardily into the great contest, but their presence gave to it a new character, and enveloped ocean as well as land in its flames. The growing commerce of the United States suffered from both sides, but especially from France, driven to frenzy by the British attempt, in the exercise of belligerent rights, to starve a whole nation.

French feelings were still further aroused against the United States, when, instead of friendship and alliance, France was encountered by the Proclamation of Neutrality launched by Washington on the 22d April, 1793, where he undertook, in behalf of the United States, to “adopt and pursue a conduct friendly and impartial toward the belligerent powers.”[115] Here, according to France, was a failure not only of that proper sympathy due from us, but even of solemn duties pledged by those early treaties which helped to secure the national independence. This failure, which became afterward the occasion of counter claims, contributed to the exasperations of the time.

An early apology, addressed to the American minister at Paris by the French Government, attests the spoliations which had begun, and discloses also their indefensible character, unless the common language spoken by the English and ourselves was a sufficient excuse. Here are the exact words:—

“We hope that the Government of the United States will attribute to their true cause the abuses of which you complain, as well as other violations of which our cruisers may render themselves guilty in the course of the present war. It must perceive how difficult it is to contain within just limits the indignation of our marines, and, in general, of all the French patriots, against a people who speak the same language and having the same habits as the free Americans. The difficulty of distinguishing our allies from our enemies has often been the cause of offences committed on board your vessels; all that the Administration could do is to order indemnification to those who have suffered, and to punish the guilty.”[116]

Thus recklessly did these spoliations begin. The National Convention associated itself with this injustice, when, on the 9th May, 1793, only seventeen days after the Proclamation of Neutrality, but before it had arrived in France, a retaliatory decree was issued in response to the British attempt at starvation,—arresting all neutral vessels laden with provisions and destined to an enemy port. The decree itself did not disguise that it was a violation of neutral rights; but the necessity of the hour was pleaded, and indemnity was promised to neutrals suffering by its operation.[117] Unwilling to await the dilatory performance of this promise, our minister at Paris remonstrated against the application of the decree to vessels of the United States. Amidst vacillations of the National Convention, which, under the urgency of our minister, at one time seemed to relent, the decree continued to be enforced against property of American citizens. Here were spoliations, confessed at the time to be in violation of neutral rights, which still rise in judgment.

As this intelligence reached the United States, our whole commerce was fluttered. Merchants hesitated to expose ships and cargoes to such cruel hazards. It was necessary that something should be done to enlist again their activity. The National Government came forward voluntarily, with assurance of protection and redress, in a circular letter, dated 27th August, 1793, when Mr. Jefferson, the Secretary of State, in the name of the President, used the following language: “I have it in charge from the President to assure the merchants of the United States concerned in foreign commerce or navigation, that due attention will be paid to any injuries they may suffer on the high seas or in foreign countries, contrary to the Law of Nations or to existing treaties, and that, on their forwarding hither well-authenticated evidence of the same, proper proceedings will be adopted for their relief.”[118] This circular was confirmed by President Washington, in his message of December 5, 1793, where he speaks as follows: “The vexations and spoliation understood to have been committed on our vessels and commerce by the cruisers and officers of some of the belligerent powers appeared to require attention. The proofs of these, however, not having been brought forward, the description of citizens supposed to have suffered were notified, that, on furnishing them to the Executive, due measures would be taken to obtain redress of the past and more effectual provisions against the future.”[119] Here, then, was a double promise from the National Government, and under its encouragement our merchants resumed their commerce, venturing once more upon the ocean. Their Government had tempted them, and, on the occurrence of “injuries on the high seas,” these good citizens, according to instructions, made haste to lodge with the Department of State the “well-authenticated evidence of the same.” Their children and grandchildren are waiting, even now, the promised redress.

Thus, at the very beginning, these spoliations were recognized by both Governments in their true character. The National Convention, even in its arbitrary edict, confessed them. The Administration of Washington, in its solemn assurance of protection, also confessed them. Offspring of wrongful violence in the heat of war, they were regarded on both sides as indefensible. Ministers, in this respect, reflected the sentiments of the two Governments. Fauchet, the French minister at Philadelphia, in a communication to the Secretary of State, under date of March 27, 1794, expressed himself in this manner: “If any of your merchants have suffered any injury by the conduct of our privateers, (a thing which would be contrary to the intention and express orders of the Republic,) they may with confidence address themselves to the French Government, which will never refuse justice to those whose claims shall be legal.”[120] Mr. Morris, our minister at Paris, under date of March 6, 1794, gave vent to his feelings: “These captures create great confusion, must produce much damage to mercantile men, and are a source of endless and well-founded complaint. Every post brings me piles of letters about it from all quarters, and I see no remedy.… In the mean time, if I would give way to the clamors of the injured parties, I ought to make demands very like a declaration of war.”[121] But M. Buchot, the French Commissioner of Foreign Relations, addressed Mr. Morris the following soothing words, under date of July 5, 1794: “The sentiments of the Convention and of the Government towards your fellow-citizens are too well known to you to leave a doubt of their dispositions to make good the losses which the circumstances inseparable from a great revolution may have caused some American navigators to experience.”[122] Such was the testimony, at that day, of ministers on both sides.

Meanwhile, Genet, the French minister, was recalled, at the instance of President Washington, on account of presumptuous interference in our affairs, especially hostile to the Proclamation of Neutrality; and John Jay reached London to negotiate the treaty of 1794 which goes under his name. The latter event added to the exasperation of France. But Mr. Monroe, who took the place of Mr. Morris at Paris, was full of sympathy for the new republic, even when he frankly discharged his unpleasant duties. In a communication to the Committee of Public Safety, under date of October 18, 1794, he exposed “a frightful picture of difficulties and losses, equally injurious to both countries, and which, if suffered to continue, will unavoidably interrupt for the time the commercial intercourse between them.”[123] Notwithstanding this strong language, his influence was thought to have prevailed so far that President Washington ventured to announce, in a confidential message of February 28, 1795, good news for our plundered merchants. “It affords me,” he said, “the highest pleasure to inform Congress that perfect harmony reigns between the two republics, and that those claims are in a train of being discussed with candor, and of being amicably adjusted.”[124] This perfect harmony was short-lived, and the hopes flowering from it were nipped.

The rumor of Mr. Jay’s negotiations with England had already produced uneasiness in France; but when the treaty, on its ratification, in October, 1795, was finally divulged, there was an outburst against us. The treaty was pronounced to be in violation of existing engagements with France, and our whole policy was openly branded by the President of the Directory, in reply to Mr. Monroe, as a “condescension of the American Government to the wishes of its ancient tyrants.”[125] The Directory refused to receive Charles Cotesworth Pinckney, sent by our Government in place of James Monroe. Meanwhile, by a succession of cruel edicts, it unleashed all its cruisers to despoil our commerce, and cry havoc wherever they sailed. On the 2d July, 1796, it was declared that “the French Republic will treat neutral vessels, either as to confiscation, as to searches, or capture, in the same manner as they shall suffer the English to treat them.”[126] The indefinite terms of this edict were justly denounced by our Government, as “giving scope for arbitrary constructions, and consequently for unlimited oppression and vexation.”[127] These results were soon manifest. With contagious injustice, the French commissioners at San Domingo reported to the Government at home, “that, having found no resource in finance, and knowing the unfriendly disposition of the Americans, and to avoid perishing in distress, they had armed for cruising, and that already eighty-seven cruisers were at sea, and that for three months preceding the Administration had subsisted and individuals been enriched with the products of those prizes.”[128] So extensively did this brutality prevail, that it was announced that American vessels “no longer entered the French ports, unless carried in by force.”[129]

This spirit of hostility broke forth in another edict of the Directory, which became at once a universal scourge to American commerce. This fulmination, bearing date March 2, 1797, after enlarging the list of contraband, and ordaining other measures of rigor, proceeds to declare all American vessels lawful prize, if found without a rôle d’équipage, or circumstantial list of the crew:[130] all of which was in violation of existing treaties, and also of American usage, which notoriously did not require, among a ship’s papers, any such list. No edict was so comprehensive in its sweep; for, as all our vessels were without this safeguard, they were all defenceless. Numberless spoliations ensued, so absolutely lawless and unjust that John Marshall did not hesitate to record of them in his journal, under date of December 17, 1797, “The claims of the American citizens for property captured and condemned for want of a rôle d’équipage” constituted “as complete a right as any individuals ever possessed.”[131] This right, thus complete, according to the judgment of our great authority, enters into a large part of the claims still pending before Congress.

As if to perfect this strange, eventful history, a third edict, at once inhospitable and unjust, was launched by the Directory, January 18, 1798, prohibiting “every foreign vessel which in the course of her voyage shall have entered into an English port from being admitted into a port of the French Republic, except in case of necessity,” and, still further, handing over to condemnation “every vessel found at sea loaded in whole or in part with merchandise the production of England or of her possessions.”[132] This edict was promptly denounced by the American plenipotentiaries newly arrived at Paris. In earnest, vigorous tones, they said that it invaded at the same time the interests and the independence of neutral powers,—that it took from them the profits of an honest and lawful industry, as well as the inestimable privilege of conducting their own affairs as their own judgment might direct,—and that acquiescence in it would establish a precedent for national degradation, authorizing any measures power might be disposed to practise.[133] Our plenipotentiaries depicted the spirit in which French spoliations had their origin, and the humiliating consequences of submission to the outrage; but the personal sufferers are, down to this day, without redress.

Perplexed and indignant, the United States constituted a special mission of three eminent citizens, Mr. Pinckney, Mr. Marshall, and Mr. Gerry, who were charged to secure indemnity for these spoliations. In his elaborate instructions, dated July 15, 1797, the Secretary of State, Mr. Pickering, lays down the following rule of conduct: “In respect to the depredations on our commerce, the principal objects will be to agree on an equitable mode of examining and deciding the claims of our citizens, and the manner and periods of making them compensation.… The proposed mode of adjusting those claims, by commissioners appointed on each side, is so perfectly fair, we cannot imagine that it will be refused.” Although this reparation was not made “an indispensable condition of the proposed treaty,” yet the plenipotentiaries were enjoined “not to renounce these claims of our citizens, nor to stipulate that they be assumed by the United States as a loan to the French Government.”[134] Thus fully were these claims recognized at the time by our Government, and most carefully placed under the protection of our plenipotentiary triumvirate.

The triumvirate found the French Republic in no mood of justice. Bonaparte was then triumphant at the head of the army of Italy, and Talleyrand was exhibiting his remarkable powers at the head of the foreign relations of France. Victory had given confidence, and the exulting Republic was standing tiptoe, more disposed to strike than negotiate, unless it could dictate, and implacable always towards England and all supposed to sympathize with that power. After exactions and humiliations hard to bear, the plenipotentiaries were compelled to return home without any official reception by the intoxicated Government to which they were accredited, but not before they had encountered the masterly ability of Talleyrand, who, in reply to their statement of the claims of the United States, presented the counter claims of France. Though in Paris merely on sufferance, they had unofficial interviews with various agents of the Republic, and even with Talleyrand himself; but without dwelling on details not pertinent to the occasion, it is enough to say, that, while refusing to offer a loan or bribe, they were able to declare frankly “that France had taken violently from America more than fifteen millions of dollars, and treated us in every respect as enemies”;[135] and also to receive from Talleyrand a concession, recorded in one of their despatches, that “some of those claims were probably just,” with the inquiry, “whether, if they were acknowledged by France, we could not give a credit as to the payment,—say, for two years?”[136] Here again was an admission not to be forgotten.

The return of our disappointed plenipotentiaries was aggravated by circumstances which an eminent Continental writer has not hesitated to brand as “unique in the annals of diplomacy.”[137] They had been invited to contribute a gratification of twelve hundred thousand francs, and the whole desperate intrigue, conducted by persons known in the correspondence as W, X, Y, Z, was unveiled to the world. The country was indignant, and war seemed imminent. By various acts of legislation Congress entered upon preparations, summoning Washington from retirement to gird on his sword once more as Lieutenant-General. The claims for French spoliations were never absent from mind. By Act of the 28th May, 1798, public vessels of the United States were authorized to capture all “armed vessels sailing under authority or pretence of authority from the Republic of France,” “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 this statute was introduced by a preamble asserting “depredations on the commerce of the United States, … in violation of the Law of Nations and treaties between the United States and the French nation.” By Act of June 13, 1798, all commercial intercourse was suspended between the United States and France, until “the Government of France … shall clearly disavow, and shall be found to refrain from, the aggressions, depredations, and hostilities which have been and are by them encouraged and maintained against the vessels and other property of the citizens of the United States.” By Act of June 25, 1798, merchant vessels of the United States were authorized to resist search or seizure by any French armed vessel, to repel assaults, and to capture the aggressors, until “the Government of France … shall disavow, and shall cause the commanders and crews of all armed French vessels to refrain from, the lawless depredations and outrages hitherto encouraged and authorized by that Government against the merchant vessels of the United States.” By Act of July 7, 1798, the treaties with France were declared to be no longer obligatory on the United States; and this statute was introduced by a preamble asserting that “the just claims of the United States for reparation of injuries have been refused, and their attempts to negotiate an amicable adjustment of all complaints between the two nations have been repelled with indignity.” Thus, by express words, in repeated acts, did Congress recognize these claims.

By such vigorous measures were the rights of these claimants asserted, while the country assumed an attitude of defence. The French Directory became less intolerable, and negotiations were invited again, with assurance that the former rudeness should not be renewed. John Adams was President, and for the sake of peace he seized the opportunity of this overture, by appointing Chief Justice Ellsworth, Patrick Henry, and William Vans Murray as a second plenipotentiary triumvirate to France. As Mr. Henry declined, Mr. Davie, of North Carolina, was substituted in his place. In adjusting the instructions President Adams himself took a personal part, as appears by a letter to the Secretary of State, where he says: “The principal points, indeed all the points, of the negotiation were so minutely considered and approved by me and all the heads of department that nothing remains but to put them into form and dress: this service I pray you to perform as promptly as possible.”[138] But “all the points” were three only: 1st, Indemnity for spoliations of American commerce; 2d, The unquestionable wrong of seizing American vessels for want of the paper known to French law as rôle d’équipage; 3d, The refusal to renew the treaty guaranty of the French West Indies. Such were the ultimata originally settled by the President and his cabinet on the 11th of March, 1799, and afterwards fully developed in the elaborate instructions of Mr. Pickering, dated 22d October, 1799, which, after announcing that “the conduct of the French Republic would well have justified an immediate declaration of war on the part of the United States,” proceeded to declare, as the first point, that the plenipotentiaries, “at the opening of the negotiation, 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.” And the instructions end, as they began, by declaring, first among the terms, “that an article be inserted for establishing a board with suitable powers to hear and determine the claims of our citizens, and binding France to pay or secure payment of the sums which shall be awarded.”[139] Observe the positiveness of the assertion.

These instructions attest the interest of our Government. Placed first among the ultimata adopted in the councils of President Adams, these indemnities were placed first in the diplomatic instructions. There is yet other evidence of the character and amount of the spoliations. The Secretary of State, in a report to Congress, dated January 18, 1799, after attributing them to French feeling on account of the British treaty, proceeds to characterize them in remarkable words: “Yet that treaty had been made by the French Government its chief pretence for those unjust and cruel depredations on American commerce which have brought distress on multitudes and ruin on many of our citizens, and occasioned a total loss of property to the United States of probably more than twenty millions of dollars.”[140] Such were the outrages for which our plenipotentiaries were to seek redress.

The Directory had ceased; but on reaching Paris the plenipotentiaries were cordially received by Talleyrand, the citizen minister of Foreign Affairs, who without delay presented them to the First Consul as he was about to mount for that wonderful campaign which, opening with the passage of the Alps, closed at Marengo. Negotiations commenced at once, Joseph Bonaparte, elder brother of the First Consul, and afterward King of Spain, being at the head of the commission on the part of France. “Appreciating,” as they announced, “the value of time,” the American plenipotentiaries, in a brief note, on the 7th of April,—the very day when the exchange of powers was completed,—proposed “an arrangement to ascertain and discharge the equitable claims of the citizens of either nation upon the other, whether founded on contract, treaty, or the Law of Nations”; all of which was to be done in order “to satisfy the demands of justice, and render a reconciliation cordial and permanent.”[141] Thus instantly were these claims presented. The French plenipotentiaries in their prompt reply admitted 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.”[142] Here was the suggestion of claims, not only “individual,” but also “national,” under which loomed the counter claims of France.

The American plenipotentiaries, while professing to be free from “apprehension of an unfavorable balance,” protested against the consideration of any “national” claims until some “convenient stage of the negotiation, after it shall be seen what arrangement would be acceptable for the claims of citizens.”[143] The French plenipotentiaries rejoined by enforcing “national” as well as “individual” claims.[144] The issue seemed to be made. On the one side were the “individual” claims of American citizens, on the other side the “national” claims of France. The American plenipotentiaries were not authorized to recognize the “national” claims alone. The French plenipotentiaries were not authorized to recognize the “individual” claims, without a previous recognition on our part of the “national” claims. At last, after various efforts at harmony, it was officially announced that “the negotiation was at a stand on the part of France,” as her plenipotentiaries were constrained by instructions of the First Consul to make “the acknowledgment of former treaties the basis of negotiation and the condition of compensation.”[145] The First Consul was then on the Italian slope of the Alps, about to pounce upon the astonished Austrians. Claims and counter claims were of little concern to him.

Thus far the Committee have exhibited our claims in their origin and history. The time has come to change the scene, and to exhibit those counter claims which played such part in the successive negotiations, and finally produced that memorable dead-lock, when the two powers stood face to face with antagonist pretensions, unable to go forward, and unwilling to go backward.

II.
COUNTER CLAIMS OF FRANCE, THEIR ORIGIN AND HISTORY.

The counter claims of France differ widely from the claims of American citizens. They were not “individual,” but “national,” being founded on alleged violations of treaty stipulations assumed by the United States in return for the aid of France in the establishment of national independence. During the protracted controversy between the two republics they were detailed in numerous official notes; but they were brandished by Talleyrand, with offensive skill and effect, in the very faces of our insulted plenipotentiaries, under date of March 18, 1798, when, while driving them from Paris, he insisted “that the priority of grievances and complaints belonged to the French Republic,” and “that these complaints and these grievances were as real as numerous, long before the United States had the least grounded claim to make.”[146] Careful inquiry enables us to see that this allegation, thus confidently uttered, was not without a certain foundation; and here we revert to the history of our country.

The triumph with which the War of Independence happily ended came tardily, after seven years of battle, suffering, and exhaustion; but it was hastened, if not assured, by the generous alliance of France. From Bunker Hill to Saratoga the war was checkered with gloom, which even the surrender of Burgoyne did not suffice to dispel. Then came the dreary winter of Valley Forge, when soldiers of Washington, after treading the snows barefoot, were obliged, for want of blankets, to huddle all night by the fires, and even the stout heart of the commander-in-chief bent so far as to announce, in formal letter to Congress, that, “unless some great and capital change suddenly takes place, the army must inevitably be reduced to one or other of these three things,—starve, dissolve, or disperse.”[147] But the scene changed with the glad tidings that France, by solemn treaty, signed by Franklin, February 6, 1778, had bound herself to “guaranty to the United States their liberty, sovereignty, and independence, absolute and unlimited.” The camp broke forth with the mingled joy of soldier and patriot, as it turned gratefully to Lafayette, already by the side of Washington, glorious forerunner of armies and navies promised to our cause. Congress took up the strain, and, by unanimous vote, ratified the treaty which opened to our country the gates of the Future.

It is difficult to estimate the value of this treaty in money, especially when we consider its consequences. According to the report of Calonne, the French Minister of Finance, the war which ensued in the support of this guaranty cost France fourteen hundred and forty millions of francs, or about two hundred and eighty millions of dollars. But French blood, more costly than money, was shed on land and sea in the same cause, until at last the army of Cornwallis surrendered at Yorktown to the allied forces of Rochambeau and Washington, and the war closed by the recognition of our national independence. If liberty be priceless, if life be priceless, then was the aid lavished by France infinite beyond calculation.

The engagements were not all on the side of France. Beyond gratitude due for this powerful alliance, were express obligations solemnly assumed by the United States, not only in the Treaty of Alliance, but also in the Treaty of Amity and Commerce negotiated on the same day. These obligations, constituting the consideration of the weighty contract, were of two classes: first, a guaranty by the United States of the possessions of France in America; and, secondly, important privileges for the armed ships of France, with a promise of American convoy to French commerce.

1. The terms of the guaranty are as follows:—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III.
ADJUSTMENT BETWEEN THE UNITED STATES AND FRANCE BY THE SET-OFF AND MUTUAL RELEASE OF CLAIMS AND COUNTER-CLAIMS.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV.
ASSUMPTION OF CLAIMS BY THE UNITED STATES, AND SUBSTITUTION OF UNITED STATES FOR FRANCE.

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

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

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

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

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

4. The Constitution also plainly requires what seems so obvious to common sense, reason, and duty, when it declares that “private property shall not be taken for public use without just compensation.” Here “private property,” to a vast amount, was taken for “public use,” involving the peace and welfare of the whole country; and down to this day the sufferers are petitioning Congress for that “just compensation” solemnly promised by the Constitution.

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

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

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

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

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

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

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

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

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

“The claims from which France was released were admitted by France, and the release was for a valuable consideration in a correspondent release of the United States from certain claims on them.”[211]

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

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

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

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

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

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

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

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

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

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