“Art. V. The debts contracted by one of the two nations with individuals of the other, or by the individuals of one with the individuals of the other, shall be paid, or the payment may be prosecuted, in the same manner as if there had been no misunderstanding between the two states. But this clause shall not extend to indemnities claimed on account of captures or confiscation.”[234]
It will be observed how carefully the claims for spoliation were excluded from the benefit of this provision, which is limited positively to “debts.” Though apparently plain, the French Government found difficulties in its execution. Vexatious delays were interposed, and “debts” were treated little better than “claims,” so that our minister at Paris, Hon. Robert R. Livingston, was constrained to address the French Government, under date of March 25, 1802: “The fifth article of the treaty says, expressly, they shall be paid; but justice and good faith say it, independent of the treaty. Yet they remain unsatisfied; nor is the most distant hope as yet afforded them of when or how they will be paid.”[235] Such was the spirit of other correspondence. At last, by one and the same transaction, Louisiana was purchased, and these “debts” were provided for. The plenipotentiaries of the United States, Mr. Livingston and Mr. Monroe,—the latter for a second time plenipotentiary,—undertook to pay eighty millions of francs for the purchase, of which sixty millions were for France, and the remaining twenty millions for the payment of “debts” secured by the Convention of 1800; and these terms were embodied in a treaty and two associate conventions of the same date.
The treaty contained the terms of cession. One of the conventions regulated the terms of purchase, and the other provided that “the debts due by France to citizens of the United States, contracted before the 30th September, 1800, shall be paid” according to certain regulations. It will be observed that these words descriptive of the “debts” are not unlike those employed in the fifth article of the Convention of 30th September, 1800.
The new Convention regulating the payment of “debts” begins with a preamble, setting forth the desire of the President and of the First Consul, “in compliance with the second and fifth articles of the Convention of the 30th September, 1800, to secure the payment of the sum due by France to the citizens of the United States.” From the association of these two articles some hastily infer a purpose to revive the “claims” abandoned in the famous second article. But such revival, instead of being “in compliance” with that article, or, according to the corresponding French words of the Convention, en exécution of that article, would be in direct contradiction of it. The allusion to the second article is obviously to carry into the Louisiana Convention the original exclusion of the spoliation “claims.” If any doubt could arise on this allusion, taken by itself, it would disappear, when we consider that the fifth article is both inclusive and exclusive. It includes “debts contracted,” which are to be paid, and it excludes “indemnities claimed on account of captures or confiscations,” which are not to be paid. Thus the language of the preamble is justified, and the Convention is in compliance with both the second and fifth articles of the original Convention.
If we examine the Louisiana Convention carefully, we find that “debts” alone are provided for. The first article, as we have already seen, declares, “the debts due by France to citizens of the United States, contracted before the 30th September, 1800, shall be paid according to the following regulations.” The second article describes “the debts provided for by the preceding article” as comprised in a conjectural note. The third article declares how “the said debts shall be discharged by the United States.” The fourth article more specifically defines the debts as follows: “It is expressly agreed that the preceding articles shall comprehend no debts but such as are due to citizens of the United States who have been and are yet creditors of France, for supplies, for embargoes, and prizes made at sea in which the appeal has been properly lodged within the time mentioned in the said Convention, 30th September, 1800.” The fifth article explains further the prizes intended in the fourth article, as follows: “The preceding articles shall apply only, 1st, to captures of which the Council of Prizes shall have ordered restitution, it being well understood that the claimant cannot have recourse to the United States otherwise than he might have had to the Government of the French Republic, and only in case of insufficiency of the captors; 2d, the debts mentioned in the said fifth article of the Convention of 1800, the payment of which has been heretofore claimed of the actual Government of France, and for which the creditors have a right to the protection of the United States. The said fifth article does not comprehend prizes whose condemnation has been or shall be confirmed.” Under the first head, the class of captures is here defined. It was those only where the Council of Prizes had ordered restitution, being captures not warranted by the laws of France. Such cases were included among “debts,” because the decree of the Council of Prizes ordering restitution instantly created, on the part of the owner, a claim on the captor for the property or its value; and where the captor was “insufficient,” the Government assumed the debt. And this is the only class of captures provided for in the Louisiana Convention. Under the second head are specified “the debts mentioned in the fifth article,” with an express declaration that it “does not comprehend prizes whose condemnation has been or shall be confirmed.” Thus in every article and at every stage the spoliation claims are excluded from the benefit of the Louisiana Convention.
Such was the contemporary conclusion of our minister at Paris, Mr. Livingston, who, in his letter to the French Government of April 17, 1802, said: “The fifth article expressly stipulates that all debts due by either Government to the individuals of the other shall be paid. But as this would also have included the indemnities for captures and condemnations previously made, and it was the intention of the contracting parties, by the second article, to preclude this payment, as depending on a future negotiation, it was necessary to except from this promise of payment all that made the subject of the second article: … as to the payment of indemnities for embargoes in consequence of the cargoes being put in requisition, or with a view to any other political measure which carried with it nothing hostile to the United States, no controversy ever arose between the plenipotentiaries of the two nations.”[236]
Surely this objection may be dismissed.
III.—THESE CLAIMS NOT EMBRACED IN THE CONVENTION OF 1831 WITH FRANCE.
Another objection has been started, kindred to the last, also in kindred ignorance. It is said that these claims were embraced in the later Convention of 1831 with France, under Louis Philippe. No mistake can be greater.