But it is more than doubtful if the annulling Act could have the effect attributed to it. Can one of two parties render a contract void by mere declaration to that effect? Between two individuals this cannot be done. Could it be done between two nations? Mr. Jefferson thought not. At least, there is a report from him on another occasion completely covering this case. These are his words: “It is desirable in many instances to exchange mutual advantages by legislative acts rather than by treaty; because the former, though understood to be in consideration of each other, and therefore greatly respected, yet, when they become too inconvenient, can be dropped at the will of either party; whereas stipulations by treaty are forever irrevocable but by joint consent, let a change of circumstances render them ever so burdensome.”[243] Chief Justice Marshall quotes another opinion, where a treaty was declared to be not only the law of the land, but a law of a superior order, “because it not only repeals past laws, but cannot itself be repealed by future ones.”[244] Such authority would seem to settle this question, especially reinforced as it is by the Law of Nations; for it must not be forgotten that the obligation of treaties is determined by International Law rather than by Municipal Law.
Even supposing the Act of Congress had succeeded in annulling the treaties, its effect, as regards France, was not so much to discharge her claims as to make them perfect. In plain terms, it was a final determination on our part not to fulfil the treaties. The circumstances of the time, perhaps, rendered it necessary; but your Committee cannot fail to observe, that, according to all principles of justice and the established usage of nations, this very determination consummated the right of France to indemnities for non-observance of the treaties. On our part there was no longer any pretence to fulfil the treaties; so that this very Act of Congress, which is cited to excuse us, may be cited to condemn us.
Whatever the law of this case, even assuming, that, according to good opinions, the treaties were annulled on the 7th July, 1798, it is perfectly clear that at the negotiation of 1800 they were treated by France as obligatory. On these she founded her counter-claims. The present narrative shows her persistency. As often as our claims were urged, her counter-claims were pressed in reply. And why ask the renunciation of the treaties, if the Act of Congress had already annulled them? Why, further, offer a large sum of money for release from their obligations? Whatever the effect of the annulling Act in the judgment of the American plenipotentiaries, it is clear that they regarded the treaties as a cloud to be removed. And it is equally clear that the French plenipotentiaries to the last maintained the obligations of the treaties. The instructions of the First Consul, before entering upon his Italian campaign, were to make “the acknowledgment of former treaties the basis of negotiation and the condition of compensation.”[245] It was the finality of these instructions which at the time caused the dead-lock already described. Thus, on the part of the United States, the obligation of the treaties was denied subsequently to July 7, 1798, while on the part of France it was affirmed as an indispensable condition down to the negotiation.
Therefore, on the part of the United States, there were claims under the treaties anterior to July 7, 1798, and also under the Law of Nations generally. On the part of France there were counter-claims under the treaties down to the negotiation. Each side was tenacious. Neither would yield. The time for compromise arrived. Then came the set-off and mutual release. The transaction was between two nations, but it was identical in character with transactions often occurring between two individuals.
V.—EARLY PERSISTENCY TO SECURE INDEMNITIES FROM FRANCE NO GROUND OF EXEMPTION FROM PRESENT LIABILITY.
The persistent efforts of our Government, anterior to the Convention of 1800, are sometimes brought forward as sufficient reason for present indifference. This also is a mistake.
It is true that our Government exerted itself much. Considering its comparative immaturity, it deserves credit for the courage and determination with which it labored. But it must not be forgotten that in all it did, even for the recovery of indemnities, it acted under the duties and instincts of national defence. Our commerce was despoiled, to the detriment of American citizens. But this grievance, which went on assuming larger proportions, proceeded directly from the hostile spirit of France, aroused by alleged infraction of national obligations on our part; so that behind the question of indemnities rose always the question of self-defence. France made reprisals because the United States refused compliance with solemn treaties, and, as is usual in such cases, individual citizens were the sufferers. Defending the interests of its citizens, the country itself was defended. To abandon these interests, especially without securing an abandonment of French pretensions, would have been an abandonment of the country, leaving it the dishonored victim of untold exactions without end. If this be correct,—and your Committee do not see how it can be controverted,—there can be no boast of extraordinary efforts, all of which, whatever form they assumed, were in the performance of a patriotic duty, simple as the filial devotion of Cordelia, “according to her bond, nor more nor less.”
And now the fidelity of that early day, when duty was done, is the apology for infidelity to-day, when duty is left undone; and those patriotic efforts are vouched as a title to present exemption. Because the Government was zealous for indemnities when France was responsible, argal it may be indifferent now, when the United States are substituted for France. Or has it come to this,—that it is right to be zealous in pressing a foreign Government, but not right to be zealous against ourselves, when substituted for that foreign Government, as in the present case? Beyond the misconception of public duty apparent in this pretence, it forgets the true state of the question. Here, again, we are brought to the Convention of 1800, when both claims and counter-claims were adjusted. If the claims on our side had been deliberately rejected, or if our Government had been compelled to withdraw, as in a case of nonsuit, the case might have been otherwise. There was no rejection, and no nonsuit, but, as has been so fully shown, a set-off and mutual release, by which each party accorded to its adversary just as much as it claimed for itself. So far as the two Governments were concerned, claims and counter-claims were extinguished, and neither could look to the other; but it did not follow that American citizens, whose “individual” claims had been appropriated to extinguish “national” obligations, were cut off from appeal to their own Government. On the contrary, the very zeal for these claimants, while they looked to France, is still due in their behalf, now that, by the action of their own Government, they must look to their country.