on their return, too, they were equally out of danger from French cruisers, as, by the treaty, free ships made free the goods on board; while, if they cleared from a port in France with a French cargo, they were lawful prize to the British, upon the principle of the law of nations, that the goods of an enemy are lawful prize, even when found in the vessel of a friend. This state of things, without material change, continued until the year 1798, when our government adopted a course of measures intended to suspend our intercourse with France, until she should be brought to respect our rights. These measures were persevered in by the United States, up to September, 1800, and were terminated by the treaty between the two nations of the 30th of that month. Here, too, terminated claims which now occupy the attention of the Senate. "1st. From 1793 to 1798. "Both nations were in constant and urgent want of provisions from the United States; and this double advantage to England of having her 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 permit 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 provisions of the United States, which was too strongly felt both in England and France not to govern, in a great degree, the policy of the two nations, it would seem probable, from the documentary history of the period, that it must have been swept from the ocean. Impelled by this want, however, the British adopted the rule, at at early day, that the provisions captured, although in a strict legal sense forfeited, as being by the law of nations contraband, should not be confiscated, but carried into English ports, and paid for, at the market price of the same provisions, at the port of their destination. The same want compelled the French, when they came to the conclusion to lay aside the obligations of the treaty, and to govern themselves, not by solemn compacts with friendly powers, but by the standards of wrong adopted by their enemies, to adopt also the same rule, and instead of confiscating the cargo as contraband of war, if provisions, to decree a compensation graduated by the market value at the port of destination. "Such, said Mr. W., is a succinct view of the disturbances between France and the United States, and between France and Great Britain, out of which grew what are now called the French claims for spoliations upon our commerce, prior to the 30th of September, 1800. Other subjects of difference might have had a remote influence; but, Mr. W., said, he believed it would be admitted by all, that those he had named were the principal, and might be assumed as having given rise to the commercial irregularities in which the claims commenced. "2d. From 1798 to the treaty of the 30th September, 1800. During the first period, Mr. W. said, these efforts were confined to negotiation, and he felt safe in the assertion that, during no equal period in the history of our government, could there be found such untiring and unremitted exertions to obtain justice for citizens who had been injured in their properties by the unlawful acts of a foreign power. Any one who would read the mass of diplomatic correspondence between this government and France, from 1793 to 1798, and who would mark the frequent and extraor dinary missions, bearing constantly in mind that the recovery of these claims was the only ground upon our part for the whole negotiation, would find it difficult to say where negligence towards the rights and interests of its citizens is imputable to the government of the United States, during this period. He was not aware that such an imputation had been or would be made; but sure he was that it could not be made with justice, or sustained by the facts upon the record. No liability, therefore, equitable or legal, had been incurred, up to the year 1798. "And if, said Mr. W., negligence is not imputable, prior to 1798, and no liability had then been incurred, how is it for the second period, from 1798 to 1800? The efforts of the former period were negotiation-constant, earnest, extraordinary negotiation. What were they for the latter period? His answer was, war; actual, open war; and he believed the statute book of the United States would justify him in the position. He was well aware that this point would be strenuously controverted, because the friends of the bill would admit that, if a state of war between the two countries did exist, it put an end to claims existing prior to the war, and not provided for in the treaty of peace, as well as to all pretence for claims to indemnity for injuries to our commerce, committed by our enemy in time of war. Mr. W. said he had found the evidences so numerous, to establish his position that a state of actual war did exist, that he had been quite at a loss from what portion of the testimony of record to make his selections, so as to establish the fact beyond reasonable dispute, and at the same time not to weary the Senate by tedious references to laws and documents. He had finally concluded to confine himself exclusively to the statute book, as the highest possible evidence, as in his judgment entirely conclusive, and as being susceptible of an arrangement and condensation which would convey to the Senate the whole material evidence, in a satisfactory manner, and in less compass than the proofs to be drawn from any other source. He had, therefore, made a very brief abstract of a few statutes, which he would read in his place: "By an act of the 28th May, 1798, Congress authorized the capture of all armed vessels of France which had committed depredations upon our commerce, or which should be found hovering upon our coast for the purpose of committing such depredations. "By an act of the 13th June, 1798, only sixteen days after the passage of the former act, Congress prohibited all vessels of the United States from visiting any of the ports of France or her dependencies, under the penalty of forfeiture of vessel and cargo; required every vessel clearing for a foreign port to give bonds (the owner, or factor and master) in the amount of the vessel and cargo, and good sureties in half that amount, conditioned that the vessel to which the clearance was to be granted, would not, voluntarily, visit any port of France or her dependencies; and prohibited all vessels of France, armed or unarmed, or owned, fitted, hired, or employed, by any person resident within the territory of the French Republic, or its dependencies, or sailing or coming therefrom, from entering or remaining in any port of the United States, unless permitted by the President, by special passport, to be granted by him in each case. "By an act of the 25th June, 1798, only twelve days after the passage of the last-mentioned act, Congress authorized the merchant vessels of the United States to arm, and to defend themselves against any search, restraint, or seizure, by vessels sailing under French colors, to repel force by force, to capture any French vessel attempting a search, restraint, or seizure, and to recapture any American merchant vessel which had been captured by the French. ral acts of Congress, and to call the attention of the Senate to their peculiar adaptation to the measures which speedily followed in future acts of the national legislature. The first, authorizing the capture of French armed vessels, was peculiarly calculated to put in martial preparation all the navy which the United States then possessed, and to spread it upon our coast. The second, establishing a perfect non-intercourse with France, was sure to call home our merchant vessels from that country and her dependencies, to confine within our own ports those vessels intended for commerce with France, and thus to withdraw from the reach of the French cruisers a large portion of the ships and property of our citizens. The third, authorizing our merchantmen to arm, was the greatest inducement the government could give to its citizens to arm our whole commercial marine, and was sure to put in warlike preparation as great a portion of our merchant vessels as a desire of self-defence, patriotism, or cupidity, would arm. Could measures more eminently calculated to prepare the country for a state of war have been devised or adopted? Was this the intention of those measures, on the part of the government and was that intention carried out into action? Mr. W. said he would let the subsequent acts of the Congress of the United States answer; and for that purpose, he would proceed to read from his abstract of those acts: "By an act of the 28th June, 1798, three days after the passage of the act last referred to, Congress authorized the forfeiture and condemnation of all French vessels captured in pursu ance of the acts before mentioned, and provided for the distribution of the prize money, and for the confinement and support, at the expense of the United States, of prisoners taken in the captured vessels. "By an act of the 7th July, 1798, nine days after the passage of the last-recited act, Congress declared that the United States are of right freed and exonerated from the stipulations of the treaties and of the consular convention heretofore concluded between the United States and France; and that the same shall not henceforth be regarded as legally obligatory on the government or citizens of the United States.' 'By an act of the 9th July, 1798, two days after the passage of the act declaring void the treaties, Congress authorized the capture, by the public armed vessels of the United States, of all armed French vessels, whether within the jurisdictional limits of the United States or upon the high seas, their condemnation as prizes, their sale, and the distribution of the prize money; empowered the President to grant commissions to private armed vessels to make the same captures, and with the same rights and powers, as public armed vessels; and provided for the safe keeping and support of the prisoners taken, at the expense of the United States. "Here, Mr. W. said, he felt constrained to "By an act of the 9th February, 1799, Conmake a remark upon the character of these seve-gress continued the non-intercourse between the United States and France for one year, from the 3d of March, 1799. "By an act of the 28th February, 1799, Congress provided for an exchange of prisoners with France, or authorized the President, at his discretion, to send to the dominions of France, without an exchange, such prisioners as might remain in the power of the United States. "By an act of the 3d March, 1799, Congress directed the President, in case any citizens of the United States, taken on board vessels belonging to any of the powers at war with France, by French vessels, should be put to death, corporally punished, or unreasonably imprisoned, to retaliate promptly and fully upon any French prisoners in the power of the United States. "By an act of the 27th February, 1800, Congress again continued the non-intercourse between us and France, for one year, from the 3d of March, 1800. were in command of the means to carry on a maritime war. If it was peace, he should like to be informed, by the friends of the bill, what would be war. This was violence and bloodshed, the power of the one nation against the power of the other, reciprocally exhibited by physical force. Couple with this the withdrawal by France of her minister from this government, and her refusal to receive the American commission, consisting of Messrs. Marshall, Pinckney, and Gerry, and the consequent suspension of negotiations between the two governments, during the period referred to; and Mr. W. said, if the facts and the national records did not show a state of war, he was at a loss to know what state of things between nations should be called war. "If, however, the Senate should think him wrong in this conclusion, and that the claims were not utterly barred by war, he trusted the facts disclosed in this part of his argument would be considered sufficient at least to protect the faith of the government in the discharge of its whole duty to its citizens; and that after it had carried on these two years of war, or, if not war, of actual force and actual fighting, in which the blood of its citizens had been shed, and their lives sacrificed to an unknown extent, for the single and sole purpose of enforcing these claims of individuals, the imputation of negligence, and hence of liability to pay the claims, would not be urged as growing ont of this portion of the conduct of the government. "Mr. W. said he had now closed the references he proposed to make to the laws of Congress, to prove that war-actual war-existed between the United States and France, from July, 1798, until that war was terminated by the treaty of the 30th of September, 1800. He had, he hoped, before shown that the measures of Congress, up to the passage of the act of Congress of the 25th of June, 1798, and including that act, were appropriate measures preparatory to a state of war; and he had now shown a total suspension of the peaceable relations between the two governments, by the declaration of Congress 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 armed French vessels upon the high seas, and from granting commissions to our whole commercial marine, also armed by the operation of previous acts of Congress, authorizing them to make the same captures, with regulations applicable to both, for the condemnation of the prizes, the distribution of the prize money, and the detention, support, and exchange of the prisoners taken in the captured vessels? Will any man, said Mr. W., call this a state of peace? "[Here Mr. Webster, chairman of the select committee which reported the bill, answered, Certainly.'] "Mr. W. proceeded. He said he was not deeply read in the treatises upon national law, and he should never dispute with that learned gentleman upon the technical definitions of peace and war, as given in the books; but his appeal was to the plain sense of every senator and every citizen of the country. Would either call that state of things which he had described, and which he had shown to exist from the highest of all evidence, the laws of Congress alone, peace? It was a state of open and undisguised hostility, of force opposed to force, of war upon the ocean, as far as our government war, but of a continued peace. That such was assumed to be the basis of the negotiation, he believed to be true, and this fact, and this fact only, so far as he had heard the arguments of the friends of the bill, was depended upon to prove that there had been no war. He had attempted to show that war in fact had existed, and been carried on for two years; and if he could now show that the inducement, on the part of the American ministers, to place the negotiation which was to put an end to the existing hostilities upon a peace basis, arose from no considerations of a national or political character, and from no ideas of consistency with the existing state of facts, but solely from a desire still to save, as far as might be in their power, the interests of these claimants, he should submit with great confidence that it did not lay in the mouths of the same claimants to turn round and claim this implied admission of an absence of war, thus made by the agents of the government out of kindness to them, and an excess of regard for their interests, as the basis of a liability to pay the damages which they had sustained, and which this diplomatic untruth, like all the previous steps of the government, failed to recover for them. What, then, Mr. President, said Mr. W., was the subject on our part, of the constant and laborious negotiations carried on between the two governments from 1793 to 1798? The claims. What, on our part, was the object of the disturbances from 1798 to 1800 of the non-intercourse-of the sending into service our navy, and arming our merchant vessels of our raising troops and providing armies on the land-of the expenditure of the millions taken from the treasury and added to our public debt, to equip and sustain these fleets and armies? The claims. Why were our citizens sent to capture the French, to spill their blood, and lay down their lives upon the high seas? To recover the claims. These were the whole matter. We had no other demand upon France, and, upon our part, no other cause of difference with her. "What public, or national, or political object had we in the negotiation of 1800, which led to the treaty of the 30th September of that year? | None, but to put an end to the existing hostilities, and to restore relations of peace and friendship. These could have been as well secured by negotiating upon a war as a peace basis. Indeed, as there were in our former treaties stipulations which we did not want to revive, a negotiation upon the basis of existing war was preferable, so far as the interests of the government were concerned, because that would put all questions, growing out of former treaties between the parties, for ever at rest. Still our negotiators consented to put the negotiation upon the basis of continued peace, and why? Because the adoption of a basis of existing war would have barred effectually and for ever all classes of the claims. This, Mr. W. said, was the only possible assignable reason for the course pursued by the American negotiators; it was the only reason growing out of the existing facts, or out of the interests, public or private, involved in the difficulties between the two nations. He therefore felt himself fully warranted in the conclusion, that the American ministers preferred and adopted a peace basis for the negotiation which resulted in the treaty of the 30th of September, 1800, solely from a wish, as far as they might be able, to save the interests of our citizens holding claims against France. "Did they, Mr. President, said Mr. W., succeed by this artifice in benefiting the citizens who had sustained injuries? He would let the treaty speak for itself. The following are extracts from the 4th and 5th articles: "Art. 4. Property captured, and not yet definitively condemned, or which may be captured before the exchange of ratifications (contraband goods destined to an enemy's port excepted), shall be mutually restored on the following proof of ownership.' perty shall be condemned contrary to the intent of the said convention, before the knowledge of this stipulation shall be obtained, the property so condemned shall, without delay, be restored or paid for.' Art. 5. The debts contracted for by one of the two nations with individuals of the other or by individuals of the one with 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 confiscations.' "Here, Mr. W. said, was evidence from the treaty itself, that, by assuming a peace basis for the negotiation, the property of our merchants captured and not condemned was saved to them, and that certain classes of claimants against the French government were provided for, and their rights expressly reserved. So much, therefore, was gained by our negotiators by a departure from the facts, and negotiating to put an end to existing hostilities upon the basis of a continued peace. Was it, then, generous or just to permit these merchants, because our ministers did not succeed in saving all they claimed, to set up this implied admission of continued peace as the foundation of a liability against their own government to pay what was not recovered from France? He could not so consider it, and he felt sure the country never would consent to so responsible an implication from an act of excessive kindness. Mr. W. said he must not be understood as admitting that all was not, by the effect of this treaty, recovered from France, which she ever recognized to be due, or ever intended to pay. On the contrary, his best impression was, from what he had been able to learn of the claims, that the treaty of Louisiana provided for the payment of all the claims which France ever admitted, ever intended to pay, or which there was the most remote hope of recovering in any way whatever. He should, in a subsequent part of his remarks, have occasion to examine that treaty, the claims which were paid under it, and to compare the claims paid with those urged before the treaty of September, 1800. "Mr. W. said he now came to the consideration of the liability of the United States to these claimants, in case it shall be determined by the Senate that a war between France and the United States had not existed to bar all ground of claim either against France or the United States. He understood the claimants to put this liability upon the assertion that the government of the United States had released their claims against France by the treaty of the 30th of September, 1800, and that the release was made for a full and valuable consideration passing to the United 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 "[Here follows the form of proof, when the article proceeds:] upon them by the treaties of amity and commerce and alliance of 1778, and the consular convention of 1778, and especially and principally by the seventeenth article of the treaty of amity and commerce, in relation to armed vessels, privateers, and prizes, and by the eleventh article of the treaty of alliance containing the mutual guarantees. "The release, Mr. W. said, was claimed to have been made in the striking out, by the Senate of the United States, of the second article of the treaty of 30th September, 1800, as that article was originally inserted and agreed upon by the respective negotiators of the two powers, as it stood at the time the treaty was signed. To cause this point to be clearly understood, it would be necessary for him to trouble the Senate with a history of the ratification of this treaty. The second article, as inserted by the negotiators, and as standing at the time of the signing of the treaty, was in the following words: "The government of the United States having added to its ratification that the convention should be in force for the space of eight years, and having omitted the second article, the government of the French Republic consents to accept, ratify, and confirm the above convention, with the addition, purporting that the convention shall be in force for the space of eight years, and with the retrenchment of the second article: Provided, That, by this retrenchment, the two States renounce the respective pretensions which are the object of the said article.' "This ratification by the French Republic, thus qualified, was returned to the United States, and the treaty, with the respective conditional ratifications, was again submitted by the President of the United States to the Senate. That body resolved that they considered the said convention as fully ratified, and returned the same to the President for the usual promulgation;' whereupon he completed the ratification in the usual forms and by the usual publication. "This, Mr. W. said, was the documentary history of this treaty and of its ratification, and here was the release of their claims relied upon by the claimants under the bill before the Senate. They contend that this second article of the treaty, as originally inserted by the negotiators, reserved their claims for future negotiation, and also reserved the subjects of disagreement under the treaties of amity and commerce, and of alli "Art. 2. The ministers plenipotentiary of the two powers not being able to agree, at present, respecting the treaty of alliance of 6th February, 1778, the treaty of amity and commerce of the same date, and the convention of 14th of November, 1788, nor upon the indemnities mutually due or claimed, the parties will negotiate further upon these subjects at a convenient time; and, until they may have agreed upon these points, the said treaties and convention shall have no operation, and the re-ance, of 1778, and the consular convention of lations of the two countries shall be regulated as follows:' "The residue of the treaty, Mr. W. said, was a substantial copy of the former treaties of amity and commerce, and alliance between the two nations, with such modifications as were desirable to both, and as experience under the former treaties had shown to be for the mutual interests of both. "This second article was submitted to the Senate by the President as a part of the treaty, as by the constitution of the United States the President was bound to do, to the end that the treaty might be properly ratified on the part of the United States, the French government having previously adopted and ratified it as it was signed by the respective negotiators, the second article being then in the form given above. The Senate refused to advise and consent to this article, and expunged it from the treaty, inserting in its place the following: "It is agreed that the present convention shall be in force for the term of eight years from the time of the exchange of the ratifications.' "In this shape, and with this modification, the treaty was duly ratified by the President of the United States, and returned to the French government for its dissent or concurrence. Bonaparte, then First Consul, concurred in the modification made by the Senate, in the following language, and upon the condition therein expressed : VOL. I.—32 1788; that the seventeenth article of the treaty of amity and commerce, and the eleventh article of the treaty of alliance, were particularly onerous upon the United States; that, to discharge the government from the onerous obligations imposed upon it in these two articles of the respective treaties, the Senate was induced to expunge the second article of the treaty of the 30th September above referred to, and, by consequence, to expunge the reservation of their claims as subjects of future negotiation between the two nations; that, in thus obtaining a discharge from the onerous obligations of these treaties, and especially of the two articles above designated, the United States was benefited to an amount beyond the whole value of the claims discharged, and that this benefit was the inducement to the expunging of the second article of the treaty, with a full knowledge that the act did discharge the claims, and create a legal and equitable obligation on the part of the government to pay them. "These, Mr. W. said, he understood to be the assumptions of the claimants, and this their course of reasoning to arrive at the conclusion that the United States were liable to them for the amount of their claims. He must here raise a preliminary question, which he had satisfied himself would show these assumptions of the claimants to be wholly without foundation, so far as the idea of benefit to the United States was supposed to be derived from expunging this second article of the treaty of 1800. What, he |