must be permitted to ask, would have been the liability of the United States under the 'onerous obligations' referred to, in case the Senate had ratified the treaty, retaining this second article? The binding force of the treaties of amity and commerce, and of alliance, and of the consular convention, was released, and the treaties and convention were themselves suspended by the very article in question; and the subjects of disagreement growing out of them were merely made matters of future negotiation at a convenient time.' What was the value or the burden of such an obligation upon the United States? for this was the only obligation from which our government was released by striking out the article. The value, Mr. W. said, was the value of the privilege, being at perfect liberty, in the premises, of assenting to or dissenting from a bad bargain, in a matter of negotiation between ourselves and a foreign power. This was the consideration passing to the United States, and, so far as he was able to view the subject, this was all the consideration the government had received, if it be granted (which he must by no means be understood to admit), that the striking out of the article was a release of the claims, and that such release was intended as a consideration for the benefits to accrue to the government from the act. "Mr. W. said he felt bound to dwell, for a moment, upon this point. What was the value of an obligation to negotiate at a convenient time?' Was it any thing to be valued? The 'convenient time' might never arrive, or if it did arrive, and negotiations were opened, were not the government as much at liberty as in any other case of negotiation, to refuse propositions which were deemed disadvantageous to itself? The treaties were suspended, and could not be revived without the consent of the United States; and, of consequence, the onerous obligations' comprised in certain articles of these treaties were also suspended until the same consent should revive them. Could he, then, be mistaken in the conclusion that, if the treaty of 1800 had been ratified with the second article forming a part of it, as originally agreed by the negotiators, the United States would have been as effectually released from the onerous obligations of the former treaties, until those obligations should again be put in force by their consent, as they were released when that article was stricken out, and the treaty ratified without it? In short, could he be mistaken in the position that all the inducement, of a national character, to expunge that article from the treaty, was to get rid of an obligation to negotiate at a convenient time?' And could it be possible that such an inducement would have led the Senate of the United States, understanding this consequence, to impose upon the government a liability to the amount of $5,000,000? He could not adopt so absurd a supposition; and he felt himself compelled to say that this view of the action of the government in the ratification of the treaty of 1800, in his mind, put an end to the pretence that the striking out of this article relieved the United States from obligations so onerous as to form a valuable consideration for the payments provided for in this bill. He could not view the obligation released—a mere obligation to negotiate-as onerous at all, or as forming any consideration whatever for a pecuniary liability, much less for a liability for millions. "Mr. W. said he now proposed to consider whether the effect of expunging the second article of the treaty of 1800 was to release any claim of value-any claim which France had ever acknowledged, or ever intended to pay. He had before shown, by extracts from the fourth and fifth articles of the treaty of 1800, that certain classes of claims were saved by that treaty, as it was ratified. The claims so reserved and provided for were paid in pursuance of provisions contained in the treaty between France and the United States, of the 30th of April, 1803; and to determine what claims were thus paid, a reference to some of the articles of that treaty was necessary. The purchase of Louisiana was made by the United States for the sum of 80,000,000 of francs, 60,000,000 of which were to be paid into the French treasury, and the remaining 20,000,000 were to be applied to the payment of these claims. Three separate treaties were made between the parties, bearing all the same date, the first providing for the cession of the territory, the second for the payment of the 60,000,000 of francs to the French treasury, and the third for the adjustment and payment of the claims. Mr. W. said the references proposed were to the last-named treaty, and were the following: "Art. 1. The debts due by France to citizens of the United States, contracted before the 8th of Vendemiaire, ninth year of the French Republic (30th September, 1800), shall be paid according to the following regulations, with interest at six per cent., to commence from the period when the accounts and vouchers were presented to the French government.' "Art. 2. The debts provided for by the pre ceding article are those whose result is comprised in the conjectural note annexed to the present convention, and which, with the interest, cannot exceed the sum of twenty millions of franes. The claims comprised in the said note, which fall within the exceptions of the following articles, shall not be admitted to the benefit of this provision.' "Art. 4. It is expressly agreed that the preceding articles shall comprehend no debts but such as are due to citizens of the United States, who have been and are yet creditors of France, for supplies, for embargoes, and prizes made at sea, in which the appeal has been properly lodged within the time mentioned in the said convention of the 8th Vendemiaire, ninth year (30th September, 1800).' Art. 5. The preceding articles shall apply only, 1st, to captures of which the council of prizes shall have ordered restitution, it being well understood that the claimant cannot have recourse to the United States otherwise than he might have had to the government of the French Republic, and only in case of the insufficiency of the captors; 2d, the debts mentioned in the said fifth article of the convention, contracted before the 8th Vendemaire, and 9 (30th September, 1800), the payment of which has been heretofore claimed of the actual government of France, and for which the creditors have a right to the protection of the United States; the said fifth article does not comprehend prizes whose condemnation has been or shall be confirmed; it is the express intention of the contracting parties not to extend the benefit of the present convention to reclamations of American citizens, who shall have established houses of commerce in France, England, or other countries than the United States, in partnership with foreigners, and who by that reason and the nature of their commerce, ought to be regarded as domiciliated in the places where such houses exist. All agreements and bargains concerning merchandise, which shall not be the property of American citizens, are equally excepted from the benefit of the said convention, saving, however, to such persons their claims in like manner as if this treaty had not been made. "From these provisions of the treaty, Mr. W. said, it would appear that the claims to be paid were of three descriptions, to wit: "1. Claims for supplies. "3. Claims for captures made at sea, of a description defined in the last clause of the 4th and the first clause of the 5th article. "How far these claims embraced all which France ever acknowledged, or ever intended to pay, Mr. W. said he was unable to say, as the time allowed him to examine the case had not permitted him to look sufficiently into the documents to make up his mind with precision upon this point. He had found, in a report made to the Senate on the 14th of January, 1831, in favor of this bill, by the honorable Mr. Livingston, then a Senator from the State of Louisiana, the following classification of the French claims, as insisted on at a period before the making of the treaty of 1800, to wit: "1. From the capture and detention of about fifty vessels. 2. The detention, for a year, of eighty other vessels, under the Bordeaux embargo. 3. The non-payment of supplies to the West India islands, and to continental France. 4. For depredations committed on our commerce in the West Indies.' "Mr. W. said the comparison of the two classifications of claims would show, at a single view, that Nos. 2 and 3 in Mr. Livingston's list were provided for by the treaty of 1803, from which he had read. Whether any, and if any, what portions of Nos. 1 and 4 in Mr. Living ston's list were embraced in No 3 of the provisions of the treaty, as he had numbered them, he was unable to say; but this much he could say, that he had found nothing to satisfy his mind that parts of both those classes of claims were not so included, and therefore provided for and paid under the treaty; nor had he been able to find any thing to show that this treaty of 1803 did not provide for and pay all the claims which France ever acknowledged or ever intended to pay. He was, therefore, unprepared to admit, and did not admit, that any thing of value to any class of individual claimants was released by expunging the second original article from the treaty of the 30th September, 1800. On the contrary, he was strongly impressed with the belief that the adjustment of claims provided for in the treaty of 1803 had gone to the whole extent to which the French government had, at any period of the negotiations, intended to go. "Mr. W. said this impression was greatly strengthened by the circumstance that the claims under the Bordeaux embargo were expressly provided for in this treaty, while he could see nothing in the treaty of 1800 which seemed to him to authorize the supposition that this class of claims was more clearly embraced within the reservations in that treaty than any class which had been admitted by the French government. "Another fact, Mr. W. said, was material to this subject, and should be borne carefully in mind by every senator. It was, that not a cent was paid by France, even upon the claims reserved and admitted by the treaty of 1800, until the sale of Louisiana to the United States, for a sum greater by thirty millions of francs than that for which the French minister was instructed to sell it. Yes, Mr. President, said Mr. W., the only payment yet made upon any portion of these claims has been virtually made by the United States; for it has been made out of the consideration money paid for Louisiana, after paying into the French treasury ten millions of francs beyond the price France herself placed upon the territory. It is a singular fact that the French negotiator was instructed to make the sale for fifty millions, if he could get no more; and when he found that, by yielding twenty millions to pay the claims, he could get eighty millions for the territory, and thus put ten millions more into the treasury of his nation than she had instructed him to ask for the whole, he yielded to the claims and closed the treaty. It was safe to say that, but for this speculation in the sale of Louisiana, not one dollar would have been paid upon the claims to this day. All our subsequent negotiations with France of a similar character, and our present relations with that country, growing out of private claims, justify this position. What, then, would have been the value of claims, if such fairly existed, which were not acknowledged and provided for by the treaty of 1800, but were left for future negotiation at a convenient time?' Would they have been worth the five millions of dollars you propose to appropriate by this bill? Would they have been worth further negotiation? He thought they would not. 6 that, therefore, the desire to get rid of these treaties, and of any onerous obligations' contained in them, was only the desire to get rid of an obligation to negotiate at a convenient time; and that such a consideration could not have induced the Senate of the United States to expunge that article from the treaty, if thereby that body had supposed it was imposing upon the country a liability to pay to its citizens the sum of five millions of dollars-a sum much larger than France had asked, in money, for a full discharge from the 'onerous obligations' relied upon. "3. That the treaty of 1800 reserved and provided for certain portions of the claims; that payment, according to such reservations, was made under the treaty of 1803; and that it is at least doubtful whether the payment thus made did not cover all the claims ever admitted, or ever intended to be paid by France; for which reason the expunging of the second article of the treaty of 1800, by the Senate of the United States, in all probability, released nothing which ever had, or which was ever likely to have value. "Mr. W. said he would avail himself of this occasion, when speaking of the treaty of Louisiana and of its connection with these claims, to explain a mistake into which he had fallen, and which he found from conversation with several gentlemen, who had been for some years members of Congress, had been common to them and to himself. The mistake to which he alluded was, the supposition that the claimants under this bill put their case upon the assumption that their claims had constituted part of the consideration for which Louisiana had been ceded to the United States; and that the consideration they contended the government had received, and upon which its liability rested, was the cession of that territory for a less sum, in money, than was considered to be its value, on account of the release of the French government from those private claims. He had rested under this misapprehension until the opening of the present debate, and until he commenced an examination of the case. He then found that it was an entire misapprehension; that the United States had paid, in money, for Louisiana, thirty millions of francs beyond the price which France had set upon it; that the claimants under this bill did not rest their claims at all up-sustain it, to wit: on this basis, and that the friends of the bill in the Senate did not pretend to derive the liability of the government from this source. Mr. W. said he was induced to make this explanation in justice to himself, and because there might be some person within the hearing of his voice who might still be under the same misapprehension. "He had now, Mr. W. said, attempted to establish the following propositions, viz.: "1. That a state of actual war, by which he meant a state of actual hostilities and of force, and an interruption of all diplomatic or friendly intercourse between the United States and France, had existed from the time of the passage of the acts of the 7th and 9th of July, 1798, before referred to, until the sending of the negotiators, Ellsworth, Davie, and Murray, in 1800, to make a treaty which put an end to the hostilities existing, upon the best terms that could be obtained; and that the treaty of the 30th of September, 1800, concluded by these negotiators, was, in fact, and so far as private claims were concerned, to be considered as a treaty of peace, and to conclude all such claims, not reserved by it, as finally ratified by the two powers. "2. That the treaty of amity and commerce, and the treaty of alliance of 1778, as well as the consular convention of 1788, were suspended by the 2d article of the treaty of 1800, and from that time became mere matters for negotiation between the parties at a convenient time; "Mr. W. said, if he had been successful in establishing either of these positions, there was an end of the claims, and, by consequence, a defeat of the bill. "The advocates of the bill conceded that two positions must be established, on their part, to "1. That the claims were valid claims against France, and had never been paid. And "2. That they were released by the government of the United States for a full and valuable consideration passing to its benefit by means of the release. "If, then, a state of war had existed, it would not be contended that any claims of this character, not reserved or provided for in the treaty of peace, were valid claims after the ratification of such a treaty. His first proposi tion, therefore, if sustained, would defeat the bill, by establishing the fact that the claims, if not reserved in the treaty of 1800, were not valid claims. "The second proposition, if sustained, would establish the fact that, inasmuch as the valuable consideration passing to the United States was alleged to grow out of the 'onerous obligations' in the treaty of amity and commerce, the treaty of alliance, and the consular convention; and inasmuch as these treaties, and all obligations, past, present, or future, onerous' or otherwise, growing out of them, were suspended and made inoperative by the second article of the treaty of the 30th of September, 1800, until further negotiation, by the common consent of both powers, should revive them, the Senate of the United States could not have expected, when they expunged this article from the treaty, that, by thus discharging the government from an obligation to negotiate 'at a convenient time,' they were incurring against it a liability of millions; in other words, the dis- gave to us the liberty of her ports for our armed vessels, privateers, and prizes, and guarded the privilege by the same prohibition to other powers; and by the second we guaranteed to France, for ever, her possessions in America, and France guaranteed to us, for ever, 'our liberty, sovereignty, and independence, absolute and unlimited, as well in matters of government as commerce.' Such were the obligations in their original inception. Will it be contended that they were not mutual, reciprocal, and equal, and that, in each instance, the one did not form the consideration for the other? Surely no one will take this ground. "If, then, said Mr. W., the obligations imposed upon each government by these articles of the respective treaties were mutual, reciprocal, and equal, when undertaken, they must have remained equal until abrogated by war, or changed by treaty stipulation. No treaty, subsequent to those which contain the obligations, had affected them in any manner whatever. If, as he had attempted to show, war had existed from July, 1778, to 1800, that would not have rendered the obligations unequal, but would have abrogated them altogether. If, as the friends of the bill contend, there had been no war, and the treaties were in full force up to the signing of the convention of the 30th of September, 1800, what was the effect of that treaty, as originally signed by the negotiators, upon these mutual, reciprocal, and equal obligations? The second original article of that treaty will It did not attempt to disturb their answer. mutuality, reciprocity, or equality, but suspended them as they were, past, present, or future, and made all the subject of future negotiation at a convenient time.' "But if the Senate should determine that he had been wrong in them all, and had failed to sustain either, he had still another proposition, which he considered conclusive and unanswerable, as to any valuable consideration for the release of these claims having passed to the United States in consequence of their discharge from the onerous obligations' said to have been contained in the former treaties. These 'onerous obligations,' and the only ones of which he had heard any thing in the course of the debate, or of which he had found any thing in the documents, arose under the 17th article of the treaty of amity and commerce, and the 11th article of the treaty of alliance; and, in relation to both, he laid down this broad proposition, which would be fully sustained by the treaties "But, Mr. W. said, the Senate of the United themselves, and by every act and every expression on the part of the American negotiators, States expunged this article of the treaty of and the government of the United States, viz.: 1800, and refused to advise and consent to rati"The obligations, liabilities, and responsify it as a part of the treaty; and hence it was bilities, imposed upon the government of the United States and upon France by the 17th article of the treaty of amity and commerce of 1778, and by the 11th article of the treaty of alliance of 1778, where mutual, reciprocal, and equal: each formed the consideration, and the only consideration, for the other; and, therefore, any release which discharged both powers from those liabilities, responsibilities, and obligations, must have been mutual, reciprocal, and equal; and the release of either must have formed a full and valuable consideration for the release of the other.' Mr. W. said he would not trouble the Senate by again reading the articles from the respective treaties. They would be recollected, and no one would controvert the fact that, when the treaties were made, these articles were intended to contain mutual, reciprocal, and equal obligations. By the first we gave to France the liberty of our ports for her armed vessels, privateers, and prizes, and prohibited all other powers from the enjoyment of the same privilege; and France contended the United States had discharged future negotiation, upon terms of equality, and the striking out of that reservation was but a mutual and reciprocal and equal release from the obligation further to negotiate. This much for the reciprocity of these obligations as derived from the action of the sovereign powers themselves. "What was to be learned from the action of their respective negotiators? He did not doubt but that attempts had been made on the part of France to exhibit an inequality in the obligations under the treaty, and to set up that inequality against the claims of our citizens; but had our negotiators ever admitted the inequality to exist, or ever attempted to compromise the rights of the claimants under this bill for such a consideration? He could not find that they had. He did not hear it contended that they had and, from the evidence of their acts, remaining upon record, as a part of the diplomatic correspondence of the period, he could not suppose they had ever entertained the idea. He had said that the American negotiators had always treated these obligations as mutual, reciprocal, and equal; and he now proposed to read to the Senate a part of a letter from Messrs. Ellsworth, Davie, and Murray, addressed to the French negotiators, and containing the project of a treaty, to justify his assertion. The letter was dated 20th August, 1800, and it would be recollected that its authors were the negotiators, on the part of the United States, of the treaty of the 30th of September, 1800. The extract is as follows: "1. Let it be declared that the former treaties are renewed and confirmed, and shall have the same effect as if no misunderstanding between the two powers had intervened, except so far as they are derogated from by the present treaty. "2. It shall be optional with either party to pay to the other, within seven years, three millions of francs, in money or securities which may be issued for indemnities, and thereby to reduce the rights of the other as to privateers and prizes, to those of the most favored nation. And during the said term allowed for option, the right of both parties shall be limited by the line of the most favored nation. "3. The mutual guaranty in the treaty of alliance shall be so specified and limited, that its future obligation shall be, on the part of France, when the United States shall be attacked, to furnish and deliver at her own ports military stores to the amount of one million of francs; and, on the part of the United States, when the French possessions in America, in any future war, shall be attacked, to furnish and deliver at their own ports a like amount in provisions. It shall, moreover, be optional for either party to exonerate itself wholly of its obligation, by paying to the other, within seven years, a gross sum of five millions of francs, in money or such securities as may be issued for indemnities.' "Mr. W. asked if he needed further proofs that not only the American government. but the American negotiators, treated these obligations under the treaty as, in all respects, mutual, reciprocal, and equal; and if the fallacy of the argument that the United States had obtained to itself a valuable consideration for the release of these private claims in the release of itself from these obligations, was not utterly and entirely disproved by these facts? Was not the release of the obligations on the one side the release of them on the other? And was not the one release the necessary consideration for the other? How, then, could it be said, with any justice, that we sought our release at the expense of the claimants? There was no reasonable ground for such an allegation, either from the acts of our government or of our negotiators. When the latter fixed a value upon our obligations as to the privateers and prizes, and as to the guaranty, in the same article they fixed the same price, to a franc, upon the reciprocal obligations of France; and when the former discharged our liability, by expunging the second article of the treaty of 1800, the same act discharged the corresponding liability of the French government. "Here, then, Mr. W. said, must end all pretence of a valuable consideration for these claims passing to the United States from this source. The onerous obligations were mutual, reciprocal, and equal, and the respective releases were mutual, reciprocal, and equal, and simultaneous, and nothing could be fairly drawn from the act which operated these mutual releases to benefit these claimants. "Mr. W. said he was, then, necessarily brought back to the proposition with which he started in the commencement of his argument, that, if the United States were liable to pay these claimants, that liability must rest upon the broad ground of a failure by the government, after ordinary, and, in this instance, extraordinary efforts to collect the money. The idea of a release of the claims for a valuable consideration passing to the government had been exploded, and, if a liability was to be claimed on account of a failure to collect the money, upon what ground did it rest? What had the government done to protect the rights of these claimants? It had negotiated from 1793 to 1798, with a vigilance and zeal and talent almost unprecedented in the history of diplomacy. It had sent to France minister after minister, and, upon several occasions, extraordinary missions composed of several individuals. tween 1798 and 1800, it had equipped fleets and armies, expended millions in warlike preparation, and finally sent forth its citizens to battle and death, to force the payment of the claims. Were we now to be told, that our failure in these efforts had created a liability against us to pay the money? That the same citizens who had been taxed to pay the expenses of these long negotiations, and of this war for the claims, were to be further taxed to pay such of the claims as we had failed to col Be |