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]