CHAPTER CXVII.
FRENCH SPOLIATIONS BEFORE 1800.
These claims had acquired an imposing aspect by this time. They were called "prior" to the year 1800; but how much prior was not shown, and they might reach back to the establishment of our independence. Their payment by the United States rested upon assumptions which constituted the basis of the demand, and on which the bill was framed. It assumed, first—That illegal seizures, detentions, captures, condemnations, and confiscations were made of the vessels and property of citizens of the United States before the period mentioned. Secondly—That these acts were committed by such orders and under such circumstances, as gave the sufferers a right to indemnity from the French government. Thirdly—That these claims had been annulled by the United States for public considerations. Fourthly—That this annulment gave these sufferers a just claim upon the United States for the amount of their losses. Upon these four assumptions the bill rested—some of them disputable in point of fact, and others in point of law. Of these latter was the assumption of the liability of the United States to become paymasters themselves in cases where failing, by war or negotiation, to obtain redress they make a treaty settlement, surrendering or abandoning claims. This is an assumption contrary to reason and law. Every nation is bound to give protection to the persons and property of their citizens; but the government is the judge of the measure and degree of that protection; and is not bound to treat for ever, or to fight for ever, to obtain such redress. After having done its best for the indemnity of some individuals, it is bound to consider what is due to the whole community—and to act accordingly; and the unredressed citizens have to put up with their losses if abandoned at the general settlement which, sooner or later, must terminate all national controversies. All this was well stated by Mr. Bibb, of Kentucky, in a speech on these French claims upon the bill of the present year. He said:
"He was well aware that the interests of individuals ought to be supported by their governments to a certain degree, but he did not think that governments were bound to push such interest to the extremity of war—he did not admit that the rights of the whole were to be jeoparded by the claims of individuals—the safety of the community was paramount to the claims of private citizens. He would proceed to see if the interests of our citizens had been neglected by this government. These claims have been urged from year to year, with all the earnestness and zeal due from the nation. But they went on from bad to worse, till negotiations were in vain. We then assumed a hostile position. During the year '98, more than twenty laws were passed by Congress upon this very subject—some for raising troops—some for providing arms and munitions of war—some for fitting out a naval force, and so on. Was this neglecting the claims of our citizens? We went as far as the interests of the nation would permit. We prosecuted these claims to the very verge of plunging into that dreadful war then desolating Europe. The government then issued its proclamation of neutrality and non-intercourse. Mr. B. next proceeded to show that France had no just claims upon us, arising from the guaranty. This guaranty against France was not considered binding, even by France herself, any further than was consistent with our relations with other nations; that it was so declared by her minister; and, moreover, that she acknowledged the justice of our neutrality. These treaties had been violated by France, and the United States could not surely be bound by treaties which she had herself violated; and consequently, we were under no obligation on account of the guaranty. Mr. B. went on to show that, by the terms of the treaty of 1800, the debts due to our citizens had not been relinquished:—that as the guaranty did not exist, and as the claims had not been abandoned, Mr. B. concluded that these claims ought not to be paid by this government. He was opposed to going back thirty-four years to sit in judgment on the constituted authorities of that time. There should be a stability in the government, and he was not disposed to question the judgment of the man (Washington) who has justly been called the first in war and the first in peace. We are sitting here to rejudge the decisions of the government thirty-four years since."
This is well stated, and the conclusion just and logical, that we ought not to go back thirty-four years to call in question the judgment of Washington's administration. He was looking to the latest date of the claims when he said thirty-four years, which surely was enough; but Washington's decision in his proclamation of neutrality was seven years before that time; and the claims themselves have the year 1800 for their period of limitation—not of commencement, which was many years before. This doctrine of governmental liability when abandoning the claims of citizens for which indemnity could not be obtained, is unknown in other countries, and was unknown in ours in the earlier ages of the government. There was a case of this abandonment in our early history which rested upon no "assumption" of fact, but on the fact itself; and in which no attempt was made to enforce the novel doctrine. It was the case of the slaves carried off by the British troops at the close of the Revolutionary War, and for which indemnity was stipulated in the treaty of peace. Great Britain refused that indemnity; and after vain efforts to obtain it by the Congress of the confederation, and afterwards under Washington's administration, this claim of indemnity, no longer resting upon a claim of the sufferers, but upon a treaty stipulation—upon an article in a treaty for their benefit—was abandoned to obtain a general advantage for the whole community in the commercial treaty with Great Britain. As these claims for French spoliations are still continued (1850), I give some of the speeches for and against them fifteen years ago, believing that they present the strength of the argument on both sides. The opening speech of Mr. Webster presented the case:
"He should content himself with stating very briefly an outline of the grounds on which these claims are supposed to rest, and then leave the subject to the consideration of the Senate. He, however, should be happy, in the course of the debate, to make such explanations as might be called for. It would be seen that the bill proposed to make satisfaction, to an amount not exceeding five millions of dollars, to such citizens of the United States, or their legal representatives, as had valid claims for indemnity on the French government, rising out of illegal captures, detentions, and condemnations, made or committed on their property prior to the 30th day of September, 1800. This bill supposed two or three leading propositions to be true.
"It supposed, in the first place, that illegal seizures, detentions, captures, condemnations, and confiscations, were made, of the vessels and property of the citizens of the United States, before the 30th September, 1800.
"It supposed, in the second place, that these acts of wrong were committed by such orders and under such circumstances, as that the sufferers had a just right and claim for indemnity from the hands of the government of France.
"Going on these two propositions, the bill assumed one other, and that was, that all such claims on France as came within a prescribed period, or down to a prescribed period, had been annulled by the United States, and that this gave them a right to claim indemnity from this government. It supposed a liability in justice, in fairness and equity, on the part of this government, to make the indemnity. These were the grounds on which the bill was framed. That there were many such confiscations no one doubted, and many such acts of wrong as were mentioned in the first section of the bill. That they were committed by Frenchmen, and under such circumstances as gave those who suffered wrong an unquestionable right to claim indemnity from the French government, nobody, he supposed, at this day, would question. There were two questions which might be made the subject of discussion, and two only occurred to him at that moment. The one was, 'On what ground was the government of the United States answerable to any extent for the injury done to these claimants?' The other, 'To what extent was the government in justice bound?' And first—of the first. 'Why was it that the government of the United States had become responsible in law or equity to its citizens, for the claims—for any indemnity for the wrongs committed on their commerce by the subjects of France before 1800?'
"To this question there was an answer, which, whether satisfactory or not, had at least the merit of being a very short one. It was, that, by a treaty between France and the United States, bearing date the 30th of September, 1800, in a political capacity, the government of the United States discharged and released the government of France from this indemnity. It went upon the ground, which was sustained by all the correspondence which had preceded the treaty of 1800, that the disputes arising between the two countries should be settled by a negotiation. And claims and pretensions having been asserted on either side, commissioners on the part of the United States were sent out to assert and maintain the claims of indemnity which they demanded; while commissioners appointed on the part of France asserted a claim to the full extent of the stipulations made in '78, which they said the United States had promised to fulfil, and in order to carry into effect the treaty of alliance of the same date, viz.: February, 1778.
"The negotiation ultimately terminated, and a treaty was finally ratified upon the terms and conditions of an offset of the respective claims against each other, and for ever; so that the United States government, by the surrender and discharge of these claims of its citizens, had made this surrender to the French government to obtain for itself a discharge from the onerous liabilities imposed upon them by the treaty of 1778, and in order to escape from fulfilling other stipulations proclaimed in the treaty of commerce of that year, and which, if not fulfilled, might have brought about a war with France. This was the ground on which these claims rested.
"Heretofore, when the subject had been before Congress, gentlemen had taken this view of the case; and he believed there was a report presented to the Senate at the time, which set forth that the claims of our citizens, being left open, the United States had done these claimants no injury, and that it did not exempt the government of France from liability."
Mr. Wright, of New-York, spoke fully against the bill, and upon a close view of all the facts of the case and all the law of the case as growing out of treaties or found in the law of nations. His speech was not only a masterly argument, but an historical monument, going back to the first treaty with France in 1778, and coming down through our legislation and diplomacy on French questions to the time of its delivery. A separate chapter is due to this great speech; and it will be given entire in the next one.