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on their return, too, they were equally out of this state of things, without material change, danger from French cruisers, as, by the treaty, continued until the year 1798, when our governfree ships made free the goods on board; while, ment adopted a course of measures intended to if they cleared from a port in France with a suspend our intercourse with France, until she French cargo, they were lawful prize to the should be brought to respect our rights. These British, upon the principle of the law of nations, measures were persevered in by the United that the goods of an enemy are lawful prize, States, up to September, 1800, and were termieven when found in the vessel of a friend. nated by the treaty between the two nations of

" Both nations were in constant and urgent the 30th of that month. Here, too, terminated want of provisions from the United States; and claims which now occupy the attention of the this double advantage to England of having her Senate. ports open and free to our vessels, and of pos- “As it was the object of the claimants to sessing the right to capture those bound to show a liability, on the part of our government, French ports, exasperated the French Republic to pay their claims, and the bill under discussion beyond endurance. Her ministers remonstrated assumed that liability, and provided, in part at with our government, controverted our construc- least, for the payment, Mr. W. said it became tion of British rights, again renewed the accu- his duty to inquire what the government had sations of partiality, and finally threw off the done to obtain indemnity for these claimants obligations of the treaty; and, by a solemn de- from France, and to see whether negligence on cree of their authorities at home, established the its part had furnished equitable or legal ground rule which governed the practice of the British for the institution of this large claim upon the cruisers. France, assuming to believe that the national treasury. The period of time covered United States permitted the neutrality of her by the claims, as he understood the subject, was flag to be violated by the British, without re- from the breaking out of the war between sistance, declared that she would treat the flag France and England, in 1793, to the signing of of all neutral vessels as that flag should perinit the treaty between France and the United States, itself to be treated by the other belligerents. in September, 1800; and he would consider the

This opened our commerce to the almost indis- efforts the government had made to obtain incriminate plunder and depredation of all the demnity: powers at war, and but for the want of the pro- "lst. From 1793 to 1798. visions of the United States, which was too “ 2d. From 1798 to the treaty of the 30th strongly felt both in England and France not to September, 1800. govern, in a great degree, the policy of the two “During the first period, Mr. W. said, these nations, it would seem probable, from the docu- efforts were confined to negotiation, and he felt mentary history of the period, that it must have safe in the assertion that, during no equal period been swept from the ocean. Impelled by this in the history of our government, could there want, however, the British adopted the rule, at be found such untiring and unremitted exertions at early day, that the provisions captured, al- to obtain justice for citizens who had been inthough in a strict legal sense forfeited, as being jured in their properties by the unlawful acts by the law of nations contraband, should not of a foreign power. Any one who would read be confiscated, but carried into English ports, the mass of diplomatic correspondence between and paid for, at the market price of the same this government and France, from 1793 to 1798, provisions, at the port of their destination. The and who would mark the frequent and extraorsame want compelled the French, when they dinary missions, bearing constantly in mind that came to the conclusion to lay aside the obliga- the recovery of these claims was the only ground tions of the treaty, and to govern themselves, upon our part for the whole negotiation, would not by solemn compacts with friendly powers, find it difficult to say where negligence towards but by the standards of wrong adopted by their the rights and interests of its citizens is imputaenemies, to adopt also the same rule, and instead ble to the government of the United States, of confiscating the cargo as contraband of war, if during this period. He was not aware that provisions, to decree a compensation gradu- such an imputation had been or would be made; ated by the market value at the port of destina- but sure he was that it could not be made with tion.

justice, or sustained by the facts upon the re“Such, said Mr. W., is a succinct view of the cord. No liability, therefore, equitable or legal, disturbances between France and the United had been incurred, up to the year 1798. States, and between France and Great Britain, " And if, said Mr. W., negligence is not imout of which grew what are now called the putable, prior to 1798, and no liability had then French claims for spoliations upon our com- been incurred, how is it for the second period, merce, prior to the 30th of September, 1800. from 1798 to 1800 ? The efforts of the former Other subjects of difference might have had a period were negotiation-constant, earnest, exremote influence; but, Mr. W., said, he believed traordinary negotiation. What were they for it would be admitted by all, that those he had the latter period ? His answer was, war; actual, named were the principal, and might be as- open war; and he believed the statute book of sumed as having given rise to the commercial the United States would justify him in the posiirregularities in which the claims commenced. I tion. He was well aware that this point would

be strenuously controverted, because the friends ral acts of Congress, and to call the attention of of the bill would admit that, if a state of war the Senate to their peculiar adaptation to the between the two countries did exist, it put an measures which speedily followed in future acts end to claims existing prior to the war, and not of the national legislature. The first, authorprovided for in the treaty of peace, as well as to izing the capture of French armed vessels, was all pretence for claims to indemnity for injuries peculiarly calculated to put in martial preparato our commerce, committed by our enemy in tion all the navy which the United States then time of war. Mr. W. said he had found the evi- possessed, and to spread it upon our coast. The dences so numerous, to establish his position that second, establishing a perfect non-intercourse a state of actual war did exist, that he had been with France, was sure to call home our mer quite at a loss from what portion of the testi- chant vessels from that country and her depenmony of record to make his selections, so as to dencies, to confine within our own ports those establish the fact beyond reasonable dispute, and vessels intended for commerce with France, and at the same time not to weary the Senate by te- thus to withdraw from the reach of the French dious references to laws and documents. He cruisers a large portion of the ships and properhad finally concluded to confine himself exclu- ty of our citizens. The third, authorizing our sively to the statute book, as the highest possi- merchantmen to arm, was the greatest induceble evidence, as in his judgment entirely con- ment the government could give to its citizens clusive, and as being susceptible of an arrange- to arm our whole commercial marine, and was ment and condensation which would convey to sure to put in warlike preparation as great a the Senate the whole material evidence, in portion of our merchant vessels as a desire of satisfactory manner, and in less compass than self-defence, patriotism, or cupidity, would arm. the proofs to be drawn from any other source. Could measures more eminently calculated to He had, therefore, made a very brief abstract of prepare the country for a state of war have been a few statutes, which he would read in his devised or adopted? Was this the intention of place :

those measures, on the part of the government, “ By an act of the 28th May, 1798, Congress and was that intention carried out into action authorized the capture of all armed' vessels of Mr. W. said he would let the subsequent acts of France which had committed depredations upon the Congress of the United States answer; and our commerce, or which should be found hover- for that purpose, he would proceed to read from ing upon our coast for the purpose of commit- his abstract of those acts: ting such depredations.


an act of the 28th June, 1798, three days By an act of the 13th June, 1798, only six- after the passage of the act last referred to, teen days after the passage of the former act, Congress authorized the forfeiture and condemCongress prohibited all vessels of the United nation of all French vessels captured in pursuStates from visiting any of the ports of France ance of the acts before mentioned, and provided or her dependencies, under the penalty of for- for the distribution of the prize money, and for feiture of vessel and cargo; required every ves- the confinement and support, at the expense of sel clearing for a foreign port to give bonds (the the United States, of prisoners taken in the cap owner, or factor and master) in the amount of tured vessels. the vessel and cargo, and good sureties in half “By an act of the 7th July, 1798, nine days that amount, conditioned that the vessel to which after the passage of the last-recited act, Congress the clearance was to be granted, would not, vol- declared that the United States are of right untarily, visit any port of France or her depen- freed and exonerated from the stipulations of dencies; and prohibited all vessels of France, the treaties and of the consular convention armed or înarmed, or owned, fitted, hired, or heretofore concluded between the United States employed, by any person resident within the and France; and that the same shall not hencoterritory of the French Republic, or its depen- forth be regarded as legally obligatory on the dencies, or sailing or coming therefrom, from en-government or citizens of the United States. tering or remaining in any port of the United “By an act of the 9th July, 1798, two days States, unless permitted by the President, by after the passage of the act declaring void the special passport, to be granted by him in each treaties, Congress authorized the capture, by

the public armed vessels of the United States, “ By an act of the 25th June, 1798, only of all armed French vessels, whether within the twelve days after the passage of the last-men- jurisdictional limits of the United States or upon tioned act, Congress authorized the merchant the high seas, their condemnation as prizes, their vessels of the United States to arm, and to de- sale, and the distribution of the prize money; fend themselves against any search, restraint, or empowered the President to grant commissions seizure, by vessels sailing under French colors, to private armed vessels to make the same cap. to repel force by force, to capture any French tures, and with the same rights and powers, as vessel attempting a search, restraint, or seizure, public armed vessels; and provided for the safa and to recapture any American merchant vessel keeping and support of the prisoners taken, at which had been captured by the French. the expense of the United States.

" Here, Mr. W. said, he felt constrained to make a remark upon the character of these seve- Igress continued the non-intercourse between the


na Bay an act of the oth February, 1799, con

United States and France for one year, from the were in command of the means to carry on a 3d of March, 1799.

maritime war.

If it was peace, he should like “By an act of the 28th February, 1799, Con- to be informed, by the friends of the bill, what gress provided for an exchange of prisoners with would be war. This was violence and bloodFrance, or authorized the President, at his dis- shed, the power of the one nation against the cretion, to send to the dominions of France, power of the other, reciprocally exhibited by without an exchange, such prisioners as might physical force. remain in the power of the United States. "Couple with this the withdrawal by France

“By an act of the 30 March, 1799, Congress of her minister from this government, and her directed the President, in case any citizens of refusal to receive the American commission, conthe United States, taken on board vessels be- sisting of Messrs. Marshall

, Pinckney, and Gerry, longing to any of the powers at war with France, and the consequent suspension of negotiations by French vessels, should be put to death, cor- between the two governments, during the period porally punished, or unreasonably imprisoned, referred to; and Mr. W. said, if the facts and to retaliate promptly and fully upon any French the national records did not show a state of war, prisoners in the power of the United States. he was at a loss to know what state of things

“ By an act of the 27th February, 1800, Con- between nations should be called war. gress again continued the non-intercourse be “If, however, the Senate should think him tween us and France, for one year, from the 3d wrong in this conclusion, and that the claims of March, 1800.

were not utterly barred by war, he trusted the “Mr. W. said he had now closed the refer- facts disclosed in this part of his argument would ences he proposed to make to the laws of Con- be considered sufficient at least to protect the gress, to prove that war—actual war-existed faith of the government in the discharge of its between the United States and France, from whole duty to its citizens ; and that after it had July, 1798, until that war was terminated by carried on these two years of war, or, if not war, the treaty of the 30th of September, 1800. He of actual force and actual fighting, in which the had, he hoped, before shown that the measures blood of its citizens had been shed, and their lives of Congress, up to the passage of the act of Con- sacrificed to an unknown extent, for the single and gress of the 25th of June, 1798, and including sole purpose of enforcing these claims of indithat

were appropriate measures preparatory viduals, the imputation of negligence, and hence to a state of war; and he had now shown a to- of liability to pay the claims, would not be urged tal suspension of the peaceable relations between as growing ont of this portion of the conduct of the two governments, by the declaration of Con- the government. gress that the treaties should no longer be con “ Mr. W. said he now came to consider the sidered binding and obligatory upon our govern- treaty of the 30th September, 1800, and the reament or its citizens. What, then, but war could sons which appeared plainly to his mind to have be inferred from an indiscriminate direction to induced the American negotiators to place that our public armed vessels, put in a state of pre- negotiation upon the basis, not of an existing paration, by preparatory acts, to capture all war, but of a continued peace. That such was armed French vessels upon the high seas, and assumed to be the basis of the negotiation, he from granting commissions to our whole com- believed to be true, and this fact, and this fact mercial marine, also armed by the operation of only, so far as he had heard the arguments of previous acts of Congress, authorizing them to the friends of the bill, was depended upon to make the same captures, with regulations appli- prove that there had been no war. He had atcable to both, for the condemnation of the prizes, tempted to show that war in fact had existed, the distribution of the prize money, and the de- and been carried on for two years; and if he tention, support, and exchange of the prisoners could now show that the inducement, on the taken in the captured vessels? Will any man, part of the American ministers, to place the ne said Mr. W., call this a state of peace ? gotiation which was to put an end to the existing

“ [Here Mr. Webster, chairman of the select hostilities upon a peace basis, arose from no committee which reported the bill, answered, considerations of a national or political charac"Certainly.')

ter, and from no ideas of consistency with the “Mr. W. proceeded. He said he was not existing state of facts, but solely from a desire deeply read in the treatises upon national law, and still to save, as far as might be in their power, he should never dispute with that learned gen- the interests of these claimants, he should subtleman upon the technical definitions of peace mit with great confidence that it did not lay in and war, as given in the books; but his appeal the mouths of the same claimants to turn round was to the plain sense of every senator and and claim this implied admission of an absence every citizen of the country. Would either call of war, thus made by the agents of the governthat state of things which he had described, ment out of kindness to them, and an excess of and which he had shown to exist from the regard for their interests, as the basis of a lihighest of all evidence, the laws of Congress ability to pay the damages which they had alone, peace? It was a state of open and un- sustained, and which this diplomatic untruth, disguised hostility, of force opposed to force, of like all the previous steps of the government, war upon the ocean, as far as our government failed to recover for them. What, then, Mr

President, said Mr. W., was the subject on our perty shall be condemned contrary to the intent part, of the constant and laborious negotiations of the said convention, before the knowledge of carried on between the two governments from this stipulation shall be obtained, the property 1793 to 1798 ? The claims. What, on our part, so condemned shall, without delay, be restored was the object of the disturbances from 1798 to or paid for.' 1800—of the non-intercourse—of the sending "Art. 5. The debts contracted for by one of into service our navy, and arming our merchant the two nations with individuals of the other, or vessels-of our raising troops and providing by individuals of the one with individuals of the armies on the land—of the expenditure of the other, shall be paid, or the paynent may be millions taken from the treasury and added to prosecuted in the same manner as if there had our public debt, to equip and sustain these fleets been no misunderstanding between the two and armies? The claims. Why were our ci- States. But this clause shall not extend to tizens sent to capture the French, to spill their indemnities claimed on account of captures or blood, and lay down their lives upon the high confiscations.' seas? To recover the claims. These were the “Here, Mr. W. said, was evidence from the whole matter. We had no other demand upon treaty itself, that, by assuming a peace basis for France, and, upon our part, no other cause of the negotiation, the property of our merchants difference with her.

captured and not condemned was saved to them, “What public, or national, or political object and that certain classes of claimants against the had we in the negotiation of 1800, which led to French government were provided for, and their the treaty of the 30th September of that year ? rights expressly reserved. So much, therefore, None, but to put an end to the existing hostili- was gained by our negotiators by a departure ties, and to restore relations of peace and friend from the facts, and negotiating to put an end to ship. These could have been as well secured by existing hostilities upon the basis of a continued negotiating upon a war as a peace basis. Indeed, peace. Was it, then, generous or just to permit as there were in our former treaties stipulations these merchants, because our ministers did not which we did not want to revive, a negotiation succeed in saving all they claimed, to set up this upon the basis of existing war was preferable, implied admission of continued peace as the so far as the interests of the government were foundation of a liability against their own go concerned, because that would put all questions, vernment to pay what was not recovered from growing out of former treaties between the par- France ? He could not so consider it, and he ties, for ever at rest. Still our negotiators con- felt sure the country never would consent to so sented to put the negotiation upon the basis of responsible an implication from an act of excescontinued peace, and why? Because the adop- sive kindness. Mr. W. said he must not be untion of a basis of existing war would have barred derstood as admitting that all was not, by the effectually and for ever all classes of the claims. effect of this treaty, recovered from France, This, Mr. W. said, was the only possible as- which she ever recognized to be due, or ever insignable reason for the course pursued by the tended to pay. On the contrary, his best imAmerican negotiators; it was the only reason pression was, from what he had been able to growing out of the existing facts, or out of the learn of the claims, that the treaty of Louisiana interests, public or private, involved in the diffi- provided for the payment of all the claims which culties between the two nations. He therefore France ever admitted, ever intended to pay, or felt himself fully warranted in the conclusion, that which there was the most remote hope of rethe American ministers preferred and adopted a covering in any way whatever. He should, in peace basis for the negotiation which resulted in a subsequent part of his remarks, have occasion the treaty of the 30th of September, 1800, solely to examine that treaty, the claims which were from a wish, as far as they might be able to save paid under it, and to compare the claims paid the interests of our citizens holding claims against with those urged before the treaty of September, France.

1800. “Did they, Mr. President, said Mr. W., suc “Mr. W. said he now came to the considera ceed by this artifice in benefiting the citizens tion of the liability of the United States to these who had sustained injuries ? He would let the claimants, in case it shall be determined by the treaty speak for itself. The following are ex- Senate that a war between France and the United tracts from the 4th and 5th articles :

States had not existed to bar all ground of claim " • Art. 4. Property, captured, and not yet de- either against France or the United States. He finitively condemned, or which may be captured understood the claimants to put this liability before the exchange of ratifications (contraband upon the assertion that the government of the goods destined to an enemy's port excepted), United States had released their claims against shall be mutually restored on the following France by the treaty of the 30th of September, proof of ownership

1800, and that the release was made for a full "[Here follows the form of proof, when the and valuable consideration passing to the United article proceeds:]

States, which in law and equity made it their “This article shall take effect from the date duty to pay the claims. The consideration pasof the signature of the present convention. And sing to the United States is alleged to be their if, from the date of the said signature, any pro- | release from the onerous obligations imposed

upon them by the treaties of amity and commerce “The government of the United States havand alliance of 1778, and the consular convention ing added to its ratification that the convention of 1778, and especially and principally by the should be in force for the space of eight years, seventeenth article of the treaty of amity and and having omitted the second article, the gocommerce, in relation to armed vessels, pri- vernment of the French Republic consents to vateers, and prizes, and by the eleventh article accept, ratify, and confirm the above convention, of the treaty of alliance containing the mutual with the addition, purporting that the convenguarantees.

tion shall be in force for the space of eight years, “ The release, Mr. W. said, was claimed to and with the retrenchment of the second article: have been made in the striking out, by the Se- Provided, That, by this retrenchment, the two nate of the United States, of the second article States renounce the respective pretensions which of the treaty of 30th September, 1800, as that are the object of the said article. article was originally inserted and agreed upon “ This ratification by the French Republic, by the respective negotiators of the two powers, thus qualified, was returned to the United States, as it stood at the time the treaty was signed and the treaty, with the respective conditional To cause this point to be clearly understood, it ratifications, was again submitted by the Presiwould be necessary for him to trouble the Senate dent of the United States to the Senate. That with a history of the ratification of this treaty. body resolved that they considered the said The second article, as inserted by the negotia- convention as fully ratified, and returned the tors, and as standing at the time of the signing same to the President for the usual promulgaof the treaty, was in the following words: tion;' whereupon he completed the ratification

6 • Art. 2. The ministers plenipotentiary of in the usual forms and by the usual publication. the two powers not being able to agree, at pre “ This, Mr. W. said, was the documentary sent, respecting the treaty of alliance of oth history of this treaty and of its ratification, and February, 1778, the treaty of amity and com- here was the release of their claims relied upon merce of the same date, and the convention of by the claimants under the bill before the Senate. 14th of November, 1788, nor upon the indem- They contend that this second article of the nities mutually due or claimed, the parties will treaty, as originally inserted by the negotiators, negotiate further upon these subjects at a reserved their claims for future negotiation, and convenient time; and, until they may have also reserved the subjects of disagreement under agreed upon these points, the said treaties and the treaties of amity and commerce, and of alliconvention shall have no operation, and the re- ance, of 1778, and the consular convention of lations of the two countries shall be regulated 1788; that the seventeenth article of the treaty as follows:

of amity and commerce, and the eleventh article “ The residue of the treaty, Mr. W. said, was of the treaty of alliance, were particularly onera substantial copy of the former treaties of amity ous upon the United States; that, to discharge and commerce, and alliance between the two the government from the onerous obligations nations, with such modifications as were desir- imposed upon it in these two articles of the respecable to both, and as experience under the former tive treaties, the Senate was induced to expunge treaties had shown to be for the mutual interests the second article of the treaty of the 30th Sepof both.

tember above referred to, and, by consequence, “ This second article was submitted to the to expunge the reservation of the

claims as Senate by the President as a part of the treaty, subjects of future negotiation between the two as by the constitution of the United States the nations; that, in thus obtaining a discharge from President was bound to do, to the end that the the onerous obligations of these treaties, and treaty might be properly ratified on the part of especially of the two articles above designated, the United States, the French government having the United States was benefited to an amount previously adopted and ratified it as it was signed beyond the whole value of the claims discharged, by the respective negotiators, the second article and that this benefit was the inducement to the being then in the form given above. The Senate expunging of the second article of the treaty, refused to advise and consent to this article, and with a full knowledge that the act did discharge expunged it from the treaty, inserting in its the claims, and create a legal and equitable obplace the following:

ligation on the part of the government to pay “ 'It is agreed that the present convention them. shall be in force for the term of eight years These, Mr. W. said, he understood to be the from the time of the exchange of the ratifica- assumptions of the claimants, and this their tions.

course of reasoning to arrive at the conclusion “ In this shape, and with this modification, that the United States were liable to them for the treaty was duly ratified by the President of the amount of their claims. He must here raise the United States, and returned to the French a preliminary question, which he had satisfied government for its dissent or concurrence. Bon- himself would show these assumptions of the aparte, then First Consul, concurred in the claimants to be wholly without foundation, so modification made by the Senate, in the follow- far as the idea of benefit to the United States ing language, and upon the condition therein was supposed to be derived from expunging this expressed:

second article of the treaty of 1800. What, he VOL. 1.–32

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