It is true that diplomatic and commercial intercourse was suspended, that the two powers armed, and that on both sides force was employed. But this painful condition of things, though naturally causing great anxiety, did not constitute war. One power may, in its own discretion, suspend diplomatic and commercial intercourse with another; it may assume all the harness of war, and even use force in retaliation, retortion, or reprisal; but all this falls short of war, especially when public acts and declarations show that war was not intended. Such conduct tends to war, and, if continued, naturally ends in war. But it is not of itself that terrible transformation by which one nation, with all its people, is converted into the enemy of another nation, with all its people, so that every citizen of the one becomes the enemy of every citizen of the other, and all pending rights and contracts between them disappear, at least for a time.
If war be the extinguisher of claims, it is because, in theory, the claimant is supposed to have opportunity for reparation by seizing the property of the enemy, wherever he can find it on the high seas. But no reprisals against France were authorized by the United States; no war on private property was permitted; so that the only principle on which war is the extinguisher of claims fails to apply.
But not even an act of war constitutes war. The two parties determine if war exists. To their public acts and mutual declarations we repair for interpretation of their conduct.
2. On the part of the United States the declarations are explicit that war did not exist, although it seemed imminent. Congress was convened in May, 1797, to deliberate on the threatening aspect of affairs, and adopt measures of public defence, which were continued in 1798 and 1799; but in all this series of acts there is constant and sedulous negation of the state of war. The Act of May 28, 1798, after reciting that “armed vessels sailing under authority or pretence of authority from the Republic of France have committed depredations on the commerce of the United States, and have recently captured the vessels and property of citizens thereof on and near the coasts,” proceeds to authorize the seizure of any such armed vessel; but nothing is said of war.[215] Another Act, bearing date the same day, authorizes a provisional army, “in the event of a declaration of war against the United States, or of actual invasion of their territory by a foreign power, or of imminent danger of such invasion discovered in the opinion of the President to exist, before the next session of Congress.”[216] The Act of June 13, 1798, to continue in force only till the end of the next session, and renewed February 9, 1799, for a limited term, suspended commercial relations between the two countries, under penalties of forfeiture;[217] but such acts, however menacing, are absolutely inconsistent with an existing state of war, which of itself, without any additional act, suspends all commercial relations between the belligerent parties. The Act of June 25, 1798, authorizes our merchant vessels to subdue and capture any French armed vessel from which an assault or other hostility shall be first made.[218] The Act of July 6, 1798, respecting alien enemies, begins with the words of limitation, “Whenever there shall be a declared war between the United States and any foreign nation.”[219] The Act of July 7, 1798, declares the treaties no longer “legally obligatory”;[220] but if war existed, such an act would have been superfluous. The Act of July 16, 1798, authorizes augmentation of the army “for and during the continuance of the existing differences between the United States and the French Republic.”[221] The Act of March 2, 1799, also authorizes augmentation of the army, “in case war shall break out.”[222] Another Act, passed the next day, provides that certain troops authorized by the Act shall not be raised, “unless war shall break out between the United States and some European prince, potentate, or state.”[223] And as late as February 20, 1800, while our envoys were on the way to Paris, another Act was passed, providing that further enlistments should be suspended, “unless, in the recess of Congress, and during the continuance of the existing differences between the United States and the French Republic, war shall break out between the United States and the French Republic.”[224] All these cumulative measures refer to war, not as actually existing, but only as a future possibility. Meanwhile there were “existing differences” only. Finally, on the 14th of May, 1800, four months before the signature of the Convention, and when the plenipotentiaries on each side were at a dead-lock, another Act was passed, authorizing the abandonment of the military preparations set on foot in contemplation of the contingency of war.[225] Such is a synopsis of testimony from Congressional legislation. And now, when it is considered that Congress alone, under the Constitution, has power to declare war, that it never made any declaration of war against France, and that throughout this whole period of trouble, in its whole series of acts, it expressly negatived the fact of war, is it not impossible to assert, that, according to the understanding of our Government, war actually existed? What Congress did, and what it failed to do, answer in the affirmative.
The declarations of the Executive are as explicit as the declarations of Congress. In the instructions to our plenipotentiaries, under date of October 22, 1799, the Secretary of State, after mentioning the spoliations of France, says: “This conduct of the French Republic would well have justified an immediate declaration of war on the part of the United States; but, desirous of maintaining peace, and still willing to leave open the door of reconciliation with France, the United States contented themselves with preparations for defence and measures calculated to protect their commerce.”[226] These plenipotentiaries declared to the French, under date of April 11, 1800, that the Acts of Congress, “far from contemplating a coöperation with the enemies of the Republic, did not even authorize reprisals upon her merchantmen, but were restricted solely to the giving of safety to their own, till a moment should arrive when their sufferings could be heard and redressed.”[227] Again, in a despatch to our minister in England, under date of September 20, 1800, the Secretary of State, who was none other than John Marshall, says: “The aggressions sometimes of one and sometimes of another belligerent power have forced us to contemplate and to prepare for war as a probable event”:[228] not as an actual event already arrived, but only as a probable event. In the face of such declarations, who can say that war existed?
On the part of France the declarations are equally explicit. It is true, that, on the 12th September, 1800, in conversation, the French plenipotentiaries let drop fitful words, to the effect, that, “if the question could be determined by an indifferent nation, such a tribunal would say that the present state of things was war on the side of America, and that no indemnities could be claimed.”[229] But the context shows, that, to avoid the payment of these indemnities, they were driven to every possible subterfuge; and the whole suggestion is contrary to all the admissions of the French Government, both in the executive and legislative branches. Indeed, these very plenipotentiaries of France, in a formal communication to the American plenipotentiaries, under date of August 11, 1800, declared that “the state of misunderstanding which has existed for some time between France and the United States, by the act of some agents rather than by the will of the respective Governments, has not been a state of war, at least on the side of France.”[230] We have already seen that it was not on the side of the United States. Then again, under date of December 12, 1801, they contented themselves with characterizing the relations of the two powers at this period as “almost hostile.”[231] At an earlier day, Talleyrand, as Minister of Exterior Relations, had written, under date of August 28, 1798: “France has a double motive, as a nation and as a republic, not to expose to any hazard the present existence of the United States. Therefore it never thought of making war against them; … and every contrary supposition is an insult to common sense.”[232] When the Convention, in its final form, was laid before the Legislative Assembly, one of the French plenipotentiaries charged with its vindication announced in a speech, November 26, 1801, that “it had terminated the misunderstanding between France and America,” which, he said, had become such “that it was necessary the reconciliation should be hastened, if it was desired that it should not become very difficult.” A report was also made to the Legislative Assembly by M. Adet, formerly French minister to the United States, in which it is declared: “There had not been any declaration of war. Commissions granted by the President to attack the armed vessels of France are not to be regarded as a declaration of war. The will of the President does not suffice to put America in a state of war. In order to this a positive declaration of Congress is requisite. None has ever existed.” And these legislative documents, so positive in character, are introduced by the learned editor in words which fitly characterize the international relations to which they refer, when he says that “they will serve to make known the causes which momentarily disturbed the harmony of the two states.”[233] True enough. Unhappily, the harmony of the two states was disturbed, but war did not exist.
3. The terms of the Convention, and the final conditions of ratification, also, exclude the idea of war. Although beginning with a declaration that “there shall be a firm, inviolable, and universal peace,” borrowed, in precise words, from Mr. Jay’s treaty with Great Britain, the Convention of 1800 did not purport to be a treaty of peace; nor, indeed, as first executed, did it pretend to settle the questions between the two powers, except by postponing them to “a convenient time.” A war annulling claims could not be treated in this way. The American Senate admitted as much, when it limited the duration of the Convention to eight years, which, had war previously existed, would have turned the Convention into a truce. The First Consul confessed the same, when he added his far-reaching proviso, for which, of course, there would have been no occasion, if the claims of American citizens had been annulled by war; and again he testified, in his words at St. Helena, where he speaks of this Convention as having “annulled the just claims which America might have made for injuries done in time of peace.” Thus falls the objection, so often urged, founded on the alleged existence of war. Strange, that, while so utterly untenable, it should gain a single supporter! There is one remark which belongs to the close of this topic. Even if France had affirmed that war existed, yet the United States constantly denied it at the time, both by legislative and executive acts; so that our Government is obviously estopped against its recognition, even if it fails to feel the indecency of such an excuse for any further denial of justice.
II.—THESE CLAIMS NOT EMBRACED IN THE LOUISIANA CONVENTION.
The objection that these claims were provided for in the Convention of 1803, for the purchase of Louisiana, is equally groundless. It is difficult to understand how such a pretext was ever made; but the history of this question shows the strange shifts of opposition, especially when without restraint from knowledge of the subject. The most superficial glance shows that the two Conventions related to two different classes of claims. Those abandoned in 1800 were on account of spoliations, and in the nature of “torts.” Those protected in 1803 were “debts.” When it is considered how steadfastly the French plenipotentiaries in 1800 opposed the recognition of the claim for “torts,” and how the First Consul, by his positive proviso, required their renunciation, it is most unreasonable to assume that in 1803 they were formally recognized. This assumption becomes still more unreasonable, when it is understood that only at a comparatively recent period was the idea first broached; that it is without support in the documentary history of the Convention, or in any contemporary opinion; that it escaped the attention of the Board of Commissioners appointed under the Convention, as it escaped the attention of successive Secretaries of State, and also of Congressional Committees, reporting on the subject, until thus tardily it was brought forward as a last resort of opposition.
The Convention of 1800, which sacrificed the claim for “torts,” kept alive certain pending claims for “debts.”