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.