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part of the case, permit me to state what is ad- the law of nations. The way being thus pre mitted.
pared, the undersigned will be at liberty to stipu“In the first place, then, it is universally ad- late for that reciprocity and freedom of committed that these petitioners once had just mercial intercourse between the two countries claims against the government of France, on ac- which must essentially contribute to their mucount of these illegal captures and condemna- tual advantage. tions.
“Should this general view of the subject be “In the next place, it is admitted that these approved by the ministers plenipotentiary to claims no longer exist against France; that they whom it is addressed, the details, it is presumed, have, in some way, been extinguished or re- may be easily adjusted, and that confidence re leased, as to her; and that she is for ever dis- stored which ought never to have been shaken.? charged from all duty of paying or satisfying “ To this letter the French ministers imme them, in whole or in part.
diately returned the following answer: “These two points being admitted, it is then 6. The ministers plenipotentiary of the French necessary, in order to support the present bill, Republic have read attentively the proposition to maintain four propositions:
for a plan of negotiation which was communi“1. That these claims subsisted against France cated to them by the envoys extraordinary and up to the time of the treaty of September, 1800, ministers plenipotentiary of the United States between France and the United States.
of America. “2. That they were released, surrendered, or “They think that the first object of the peextinguished by that treaty, its amendment in gotiation ought to be the determination of the the Senate, and the manner of its final ratifica- regulations, and the steps to be followed for tion.
the estimation and indemnification of injuries “3. That they were thus released, surrender- for which either nation may make claim for ited, or extinguished, for political and national self, or for any of its citizens. And that the considerations, for objects and purposes deemed second object is to assure the execution of treaimportant to the United States, but in which ties of friendship and commerce made between these claimants had no more interest than any the two nations, and the accomplishment of the other citizens.
views of reciprocal advantages which suggested, “4. That the amount or measure of indem- them.' nity proposed by this bill is no more than a fair “It is certain, therefore, that the negotiation and reasonable compensation, so far as we can commenced in the recognition, by both parties, judge by what has been done in similar cases. of the existence of individual claims, and of the
“1. Were these subsisting claims against justice of making satisfaction for them; and it France up to the time of the treaty ? It is a is equally clear that, throughout the whole neconclusive answer to this question, to say that gotiation, neither party suggested that these the government of the United States insisted claims had already been either satisfied or exthat they did exist, up to the time of the treaty, tinguished; and it is indisputable that the treaty and demanded indemnity for them, and that the itself, in the second article, expressly admitted French government fully admitted their exist- their existence, and solemly recognized the duty ence, and acknowledged its obligation to make of providing for them at some future period. such indemnity.
" It will be observed, sir, that the French ne“ The negotiation, which terminated in the gotiators, in their first letter, while they admit treaty, was opened by a direct proposition for the justice of providing indemnity for individual indemnity, made by our ministers, the justice claims, bring forward, also, claims arising under and propriety of which was immediately acceded treaties; taking care, thus early, to advance the to by the ministers of France.
pretensions of France on account of alleged vio“On the 7th of April, 1800, in their first let- iations by the United States of the treaties of ter to the ministers of France, Messrs. Ells- 1778. On that part of the case, I shall say worth, Davie, and Murray, say:
something hereafter; but I use this first letter 6 « Citizen 'ministers :-The undersigned, ap- of the French ministers at present only to show preciating the value of time, and wishing by that, from the first, the French government adfrankness to evince their sincerity, enter directly mitted its obligation to indeninify individuals upon the great object of their mission--an ob- who had suffered wrongs and injuries. ject which they believe may be best obtained “The honorable member from New-York [Mr. by avoiding to retrace minutely the too well-Wright] contends, sir, that, at the time of conknown and too painful incidents which have cluding the treaty, these claims had ceased to rendered a negotiation necessary.
exist. He says that a war had taken place be“To satisfy the demands of justice, and ren-tween the United States and France, and by the der a reconciliation cordial and permanent, they war the claims had become extinguished. I difpropose an arrangement, such as shall be com- fer from the honorable member, both as to the patible with national honor and existing circum- fact of war, and as to the consequences to be destances, to ascertain and discharge the equitable duced from it, in this case, even if public war claims of the citizens of either nation upon the had existed. If we admit, for argument sake, other, whether founded on contract, treaty, or that war had existed, yet we find that, on the
restoration of amity, both parties admit the jus- the existence, or the commencement, of actual tice of these claims and their continued exist- war. But does it prove either the one or the ence, and the party against which they are pre- other ? ferred acknowledges her obligation, and express "It is not an act declaring war; it is not an es her willingness to pay them. The mere fact act authorizing reprisals; it is not an act of war can never extinguish any claim. If, in- which, in any way, acknowledges the actual exdeed, claims for indemnity be the professed istence of war. Its whole implication and imground of a war, and peace be afterwards con- port is the other way. Its title is, 'An act more cluded without obtaining any acknowledgment effectually to protect the commerce and coasts of the right, such a peace may be construed of the United States.' to be a relinquishment of the right, on the ground “ This is its preamble: that the question has been put to the arbitration 6. Whereas armed vessels, sailing under auof the sword, and decided. But, if a war be thority, or pretence of authority, from the Rewaged to enforce a disputed claim, and it be car- public of France, have committed depredations ried on till the adverse party admit the claim, on the commerce of the United States, and have and agree to provide for its payment, it would recently captured the vessels and property of be strange, indeed, to hold that the claim itself citizens thereof, on and near the coasts, in violawas extinguished by the very war which had tion of the law of nations, and treaties between compelled its express recognition. Now, what the United States and the French nation: thereever we call that state of things which existed fore'between the United States and France from 1798 " And then follows its only section, in these to 1800, it is evident that neither party contend- words: ed or supposed that it had been such a state of “Sec. 1. Be it enacted, fc., That it shall things as had extinguished individual claims for be lawful for the President of the United States, indemnity for illegal seizures and confiscations. and he is hereby authorized, to instruct and di
“ The honorable member, sir, to sustain his rect the commanders of the armed vessels belongpoint, must prove that the United States went ing to the United States, to seize, take, and bring to war to vindicate these claims; that they waged into any port of the United States, to be prothat war unsuccessfully; and that they were ceeded against according to the laws of nations, therefore glad to make peace, without obtaining any such armed vessel which shall have compayment of the claims, or any admission of their mitted, or which shall be found hovering on the justice. I am happy, sir, to say that, in my coasts of the United States for the purpose of opinion, facts do not authorize any such record committing, depredations on the vessels belongto be made up against the United States. I thinking to citizens thereof; and also retake any ship it is clear, sir, that whatever misunderstanding or vessel, of any citizen or citizens of the Uniexisted between the United States and France, ted States, which may have been captured by any it did not amount, at any time, to open and pub- such armed vessel.' lic war. It is certain that the amicable relations " This act, it is true, authorized the use of of the two countries were much disturbed; it is force, under certain circumstances, and for cercertain that the United States authorized armed tain objects, against French vessels. But there resistance to French captures, and the captures may be acts of authorized force, there may be of French vessels of war found hovering on our assults, there may be battles, there may be capcoast; but it is certain, also, not only that there tures of ships and imprisonment of persons, and was no declaration of war, on either side, but yet no general war. Cases of this kind may that the United States, under all their provoca- occur under that practice of retortion which is tions, did never authorize general reprisals on justified, when adopted for just cause, by the French commerce. At the very moment when laws and usages of nations, and which all the the gentleman says war raged between the Uni- writers distinguish from general war. ted States and France, French citizens came into “ The first provision in this law is purely preour courts, in their own names, claimed restitu- ventive and defensive; and the other hardly tion for property seized by American cruisers, goes beyond it. Armed vessels hovering on our and obtained decrees of restitution. They claimed coast, and capturing our vessels, under authority, as citizens of France, and obtained restoration, or pretence of authority, from a foreign state, in our courts, as citizens of France. It must might be captured and brought in, and vessels have been a singular war, sir, in which such pro- already seized by them retaken. The act is ceedings could take place. Upon a fair view of limited to armed vessels; but why was this, if the whole matter, Mr. President, it will be found, general war existed? Why was not the naval I think, that every thing done by the United power of the country let loose at once, if there States was defensive. No part of it was ever were war, against the commerce of the enemy? retaliatory. The United States do not take jus- The cruisers of France were preying on our comtice into their own hands.
merce; if there was war, why were we restrain“ The strongest measure, perhaps, adopted by ed from general reprisals on her commerce ? Congress, was the act of May 28, 1798. The This restaining of the operation of our naval honorable member from New-York' has referred marine to armed vessels of France, and to such to this act, and chiefly relies upon it, to prove of them only as should be found hovering on our
coast, for the purpose of committing depredations break out; and they made suitable provision on our commerce, instead of proving a state of for that exigency, should it occur; but it is war, proves, I think, irresistibly, that a state of quite impossible to reconcile the express and so general war did not exist. But even if this act often repeated declarations of these statutes, of Congress left the matter doubtful, other acts commencing in 1798, running through 1799, and passed at and near the same time demonstrate ending in 1800, with the actual existence of war the understanding of Congress to have been, that between the two countries at any period within although the relations between the two countries those years. were greatly disturbed, yet that war did not * The honorable member's second principal exist. On the same day (May 28, 1798) in source of argument, to make out the fact of a which this act passed, on which the member state of war, is the several non-intercourse acts. from New-York lays so much stress, as proving And here again it seems to me an exactly oppothe actual existence of war with France, Con- site inference is the true one. In 1798, 1799, gress passed another act, entitled 'An act author- and 1800, acts of Congress were passed suspendizing the President of the United States to ing the commercial intercourse between the raise a provisional army;' and the first section United States, each for one year. Did any gordeclared that the President should be autho- ernment ever pass a law of temporary non-inrized, 'in the event of a declaration of war tercourse with a public enemy? Such a law against the United States, or of actual invasion would be little less than an absurdity. War itof their territory by a foreign power, or of self effectually creates non-intercourse. It renimminent danger of such invasion, to cause to be ders all trade with the enemy illegal, and, of enlisted,' &c., ten thousand men.
course, subjects all vessels found soengaged, with “ On the 16th of July following, Congress their cargoes, to capture and condemnation as passed the law for augmenting the army, the enemy's property. The first of these laws second section of which authorized the President was passed June 13, 1798, the last. February 27, to raise twelve additional regiments of infantry, 1800. Will the honorable member from Newand six troops of light dragoons, 'to be enlisted York tell us when the war commenced? When for and during the continuance of the existing did it break out? When did those 'ditferences, differences between the United States and the of which the acts of Congress speak, assume a French Republic, unless sooner discharged,' &c. character of general hostility ? Was there a
“The following spring, by the act of the 2d state of war on the 13th of June, 1798, when of March, 1799, entitled 'An act giving eventual Congress passed the first non-intercourse act; authority to the President of the United States and did Congress, in a state of public war, limit to augment the army,' Congress provided that non-intercourse with the enemy to one year? it should be lawful for the President of the Or was there a state of peace in June, 1798? United States, in case war should break out be- and, if so, I ask again, at what time after that tween the United States and a foreign European period, and before September, 1800, did the war power, &c., to raise twenty-four regiments of in-break out? Difficulties of no small magnitude fantry, &c. And in the act for better organizing surround the gentleman, I think, whatever course the army, passed the next day, Congress repeats he takes through these statutes, while he atthe declaration, contained in a former act, that tempts to prove from them a state of war. The certain provisions shall not take effect unless truth is, they prove, incontestably, a state of war shall break out between the United States peace; a state of endandgered, disturbed, agitated and some European prince, potentate, or state. peace; but still a state of peace. Finding them
“On the 20th of February, 1800, an act was selves in a state of great misunderstanding and passed to suspend the act for augmenting the contention with France, and seeing our commerce army; and this last act declared that further a daily prey to the rapacity of her cruisers, the enlistments should be suspended until the fur- United States preferred non-intercourse to war. ther order of Congress, unless in the recess of This is the ground of the non-intercourse acts. Congress, and during the continuance of the Apprehending, nevertheless, that war might existing differences between the United States break out, Congress made prudent provision for and the French Republic, war should break out it by auginenting the military force of the counbetween the United States and the French Re- try. This is the ground of the laws for raising public, or imminent danger of an invasion of a provisional army. The entire provisions of all their territory by the said Republic should be these laws necessarily suppose an existing state discovered.
of peace; but they imply also an apprehension “On the 14th of May, 1800, four months before that war might commence. For a state of actual the conclusion of the treaty, Congress passed an war they were all unsuited; and some of them act authoriziug the suspension of military ap- would have been, in such a state, preposterous pointments, and the discharge of troops under and absurd. To a state of present peace, the provisions of the previous laws. No com- but disturbed, interrupted, and likely to termimentary is necessary, sir, on the texts of these nate in open hostilities, they were all perfectly statutes, to show that Congress never recognized well adapted. And as many of these acts, in the existence of war between the United States express terms, speak of war as not actually exand France. They apprehended war might | isting, but as likely or liable to break out, it is
clear, beyond all reasonable question, that Con- treaty itself, as originally agreed to, we meet gress never, at any time, regarded the state of irresistible proof of the truth of the declarathings existing between the United States and tion, that the state of misunderstanding which France as being a state of war.
had existed between the two countries was "As little did the executive government so not war. regard it, as must be apparent from the instruc- “If the treaty had remained as the ministers tions given to our ministers, when the mission on both sides agreed upon it, the claimants, was sent to France. Those instructions, having though their indemnity was postponed, would recurred to the numerous acts of wrong commit- have had no just claim on their own government. ted on the commerce of the United States, and But the treaty did not remain in this state. This the refusal of indemnity by the government of second article was stricken out by the Senate; France, proceed to say: This conduct of the and, in order to see the obvious motive of the French Republic would well have justified an Senate in thus striking out the second article, immediate declaration of war on the part of the allow me to read the whole article. It is in United States; but, desirous of maintaining these words: peace, and still willing to leave open the door 66. The ministers plenipotentiary of the two of reconciliation with France, the United States parties not being able to agree, at present, recontented themselves with preparations for de- specting the treaty of alliance of the 6th of fence, and measures calculated to protect their February, 1778, the treaty of amity and comcommerce.'
merce of the same date, and the convention of “It is equally clear, on the other hand, that the 14th of November, 1788, nor upon the inneither the French government nor the French demnities mutually due or claimed, the parties ministers acted on the supposition that war had will negotiate further on these subjects at a existed between the two nations. And it was convenient time; and until they may have for this reason that they held the treaties of 1778 agreed upon these points, the said treaties and still binding. Within a month or two of the convention shall have no operation, and the resignature of the treaty, the ministers plenipo- lations of the two countries shall be regulated tentiary of the French Republic write thus to as follows.' Messrs. Ellsworth, Davie, and Murray: 'In the “ The article thus stipulating to make the first place, they will insist upon the principle claims of France, under the old treaties, matter already laid down in their former note, viz.: of further negotiation, in order to get rid of that the treaties which united France and the such negotiation, and the whole subject, the United States are not broken; that even war Senate struck out the entire article, and ratified could not have broken them; but that the state the treaty in this corrected form. France ratified of misunderstanding which existed for some time the treaty, as thus amended, with the further between France and the United States, by the declaration that, by thus retrenching the second act of some agents rather than by the will of ar icle, the two nations renounce the respective the respective governments, has not been a state pretensions which were the object of the article. of war, at least on the side of France.'
In this declaration of the French government, “ Finally, sir, the treaty itself, what is it? the Senate afterwards acquiesced; so that the It is not called a treaty of peace; it does not government of France, by this retrenchment, provide for putting an end to hostilities. It says agreed to renounce her claims under the treaties not one word of any preceding war; but it does of 1778, and the United States, in like manner, say that 'differences have arisen between the renounced the claims of their citizens for intwo states, and that they have, therefore, re- demnities due to them. spectively, appointed their plenipotentiaries, and “ And this proves, sir, the second proposition given them full powers to treat upon those 'dif- which I stated at the commencement of my references, and to terminate the same.
marks, viz. : that these claims were released, re" But the second article of the treaty, as nego- linquished, or extinguished, by the amendment tiated and agreed on by the ministers of both of the treaty, and its ratification as amended. governments, is, of itself, a complete refutation It is only necessary to add, on this point, that of the whole argument which is urged against these claims for captures before 1800 would have this bill, on the ground that the claims had been been good claims under the late treaty with extinguished by war, since that article distinctly France, and would have come in for a dividend and expressly acknowledges the existence of the in the fund provided by that treaty, if they had claims, and contains a solemn pledge that the not been released by the treaty of 1800. And two governments, not being able to agree on they are now excluded from all participation them at present, will negotiate further on them, in the benefit of the late treaty, because of such at convenient time thereafter. Whether we release or extinguishment by that of 1800. look, then, to the decisions of the American “In the third place, sir, it is to be proved, if it courts, to the acts of Congress, to the instruc- be not proved already, that these claims were tions of the American executive government, surrendered, or released by the government of to the language of our ministers, to the declara- the United States, on national considerations, tions of the French government and the French and for objects in which these claimants had no ministers, or to the unequivocal language of the more interest than any other citizens.
“Now, sir, I do not feel called on to make out insisted on by themselves, the object of two that the claims and complaints of France against special missions, the subjects of so much prethe government of the United States were well vious controversy, and at one time so near being founded. It is certain that she put forth such the cause of open war-did the government surclaims and complaints, and insisted on them to render and renounce them gratuitously, or for the end. It is certain that, by the treaty of al- nothing ? Had it no reasonable motive in the liance of 1778, the United States did guaranty relinquishment ? Sir, it is impossible to mainto France her West India possessions. It is tain any such ground. certain that, by the treaty of commerce of the “ And, on the other hand, let me ask, was it same date, the United States stipulated that for nothing that France relinquished, what she French vessels of war might bring their prizes had so long insisted on, the obligation of the into the ports of the United States, and that the United States to fulfil the treaties of 1778 ? enemies of France should not enjoy that privi- For the extinguishment of this obligation we lege ; and it is certain that France contended had already offered her a large sum of money, that the United States had plainly violated this which she had declined. Was she now willing article, as well by their subsequent treaty with to give it up without any equivalent ? England as by other acts of the government. “Sir, the whole history of the negotiation is For the violation of these treaties she claimed full of proof that the individual claims of our indemnity from the government of the United citizens, and the government claims of France States. Without adınitting the justice of these against the United States, constituted the repretensions, the government of the United States spective demands of the two parties. They found them extremely embarrassing, and they were brought forward together, discussed toauthorized our ministers in France to buy them gether, insisted on together. The French minoff by money.
isters would never consent to disconnect them. “For the purpose of showing the justice of While they admitted, in the fullest manner, the the present bill, it is not necessary to insist that claims on our side, they maintained, with perseFrance was right in these pretensions. Right severing resolution, the claims on the side of or wrong, the United States were anxious to France. It would fatigue the Senate were I to get rid of the embarrassments which they occa- go through the whole correspondence, and show, sioned. They were willing to compromise the as I could easily do, that, in every stage of the matter. The existing state of things, then, was negotiation, these two subjects were kept toexactly this:
gether. I will only refer to some of the more “France admitted that citizens of the United prominent and decisive parts. States had just claims against her ; but she in- “In the first place, the general instructions sisted that she, on the other hand, had just which our ministers received from our own gorclaims against the government of the United emment, when they undertook the mission, diStates,
rected them to insist on the claims of American “She would not satisfy our citizens, till our citizens against France, to propose a joint board government agreed to satisfy her. Finally, a of commissioners to state those claims, and to treaty is ratified, by which the claims on both agree to refer the claims of France for infringesides are renounced.
ments of the treaty of commerce to the sank " The only question is, whether the relinquish- board. I will read, sir, so much of the instrucment of these individual claims was the price tions as comprehend these points : which the United States paid for the relinquish- “61. At the opening of the negotiation you ment, by France, of her claims against our gov- will inform the French ministers that the Uniernment ? And who can doubt it? Look to ted States expect from France, as an indispenthe negotiation; the claims on both sides were sable condition of the treaty, a stipulation to discussed together. Look to the second article make to the citizens of the United States full of the treaty, as originally agreed to; the claims compensation for all losses and damages which on both sides are there reserved together. And they shall have sustained by reason of irregular look to the Senate's amendment, and to the sub- or illegal captures or condemnations of their sequent declaration of the French government, vessels and other property, under color of auacquiesced in by the Senate; and there the thority or commissions from the French Repubclaims on both sides are renounced together. lic or its agents. And all captures and conWhat stronger proof could there be of mutuali- demnations are deemed irregular or illegal when ty of consideration ? Sir, allow me to put this contrary to the law of nations, generally redirect question to the honorable member from ceived and acknowledged in Europe, and to the New-York. If the United States did not agree stipulations in the treaty of amity and com, to renounce these claims, in consideration that merce of the 6th of February, 1778, fairly and France would renounce hers, what was the rea- ingenuously interpreted, while that treaty re son why they surrendered thus the claims of mained in force.' their own citizens? Did they do it without 6.2. If these preliminaries should be satis any consideration at all ? Was the surrender factorily arranged, then, for the purpose of er wholly gratuitous ? Did they thus solemnly amining and adjusting all the claims of our citirenounce claims for indemnity, so just, so long | zens, it will be necessary to provide for the ap