SPEECH OF WILLIAM H. SEWARD, ON, THE CLAIMS OF AMERICAN MERCHANTS FOR INDEMNITIES FOR FRENCH SPOLIATIONS. [Delivered in the Senate of the United States^ January 21, 1851.] Mr. President : While no lawful public engagement ought ever to be ibroken, debts founded on the appropriation of private property to the general use, and especially to the discharge of obligations incurred in the war of the Revolution, are practically guarantied by the Constitution, and. are .stamped with a peculiar equity. They ought, therefore, to be held as sacred as the safety of the State itself. The claims before us fall within that •class of inviolable obligations. The peace of Paris, in 1763, reduced the broad possessions of France in America to Cayenne on the continent, and the islands of St. Domingo, Martinique, Guadaloupe, St. Lucia, St. Vincent, Tobago, Deseada, Mari- galante, St. Pierre, Miquelon, Grenada, and Dominica, in the Atlantic •ocean. Great Britain, at the same time, acquired the Canadas, together with the vast region of New France, and thus secured to herself an empire ’extending from the Gulf of Mexico to the Arctic circle. In February, 1778, the new thirteen American States were struggling to disengage themselves from that empire. It was a conflict ripened and final between Great Britian to retain supreme dominion, and the United States to acquire absolute'sovereignty and independence. Great Britian, so lately victorious over her great continental rival, was now confessed mistress of the seas. The United States had, then, a free population scarcely surpassing their present number of slaves. Their sovereignty had been assumed <oniy nineteen months before, and had not yet been recognised by any foreign nation, nor even by the least of the hundred savage tribes w'hom the wilderness protected within and around their borders. They had no navy, mercantile marine, fortifications, constitution, nor even confirmed •confederation. The hopes which had been kindled by early successes were almost extinguished by recent and successive disasters. Boston had, indeed, been regained, and Burgoyne had given back the passes of the North : but the enemy yet retained New York, and now victorious over Washington in successive pitched battles, on fields chosen by himself, on the Brandywine and at Germantown, was marching unobstructed towards Philadelphia, then the American capital. The precious metals seemed to Buell & Blanchard, Printers. v
2 have hidden themselves again in the earth, and paper credits had everywhere collapsed. The chaplain of Congress implored Washington “to give over the ungodly war in which he was engaged.” The discomfited army, without recruits, pay, or sufficient food, had tracked their way with bleeding feet into winter quarters on the Schuylkill. Two hundred officers had resigned and retired; the hospitals and the neighboring farmers’ firesides were crowded by soldiers without blankets or shoes; and the great leader, in the midst of discontents fast growing into mutiny, announced to the loosely constituted Legislature, which was now convulsed with distrust and faction, that “ unless some great and capital change should occur, the troops under his care must starve, dissolve, or disperse.” A great and capital change did occur. Allied armies, fresh, vigorous, and well appointed, co-operating with a gallant fleet, met the invader, and his surrender at Yorktown opened the way to peace, sovereignty, and independence. An auspicious star had led Franklin, Deane, and Lee, the first of American ambassadors, to Paris ; and it was an alliance with France, a hereditary foe, but thenceforth a fraternal nation, that wrought out this great and capital change, and effected that triumphant consummation. The courses of the allies immediately separated, and thenceforward widely diverged. The United States completed their union in peace and tranquillity, and established their Constitution on the unremovable foundations on which loyal citizens hope, and wise men throughout the world believe, that it stands firmly fixed forever; while, by well-directed devotion of the national revenues to the payment of their debts and the establishment of their credit, and a wise cultivation of arts and industry, they prepared the way for permanent and extended empire. France, on the contrary, began the descent towards revolution in the- very year when the United States emerged from its dangerous labyrinths; and thereafter, distracted herself, for thirteen years she convulsed all Europe. It was during this period that these claims for indemnities for spoliations arose. The political and commercial relations between France and the United States had been defined by treaties. First. The Treaty of Amity and Commerce, the most ancient treaty of the United States, executed on the 6th of February, 1778. It stipulated [Art. 1] a firm, inviolable, universal, and perpetual peace. [Art. 2.] That all commercial privileges to be granted by either party to any State should become common to the other contracting party. [Arts. 3 and 4.] The most favored footing for each party in the other’s ports. [Arts. 5 and 6.] Reciprocal protection to vessels in their respective jurisdictions. [Art. 8.] The aid of France in negotiations by the United States with the Barbary Powers. [Art. 12.] The mutual exhibition-of passports and certificates of cargo in cases of suspicious vessels making the ports of an enemy of one of the parties. [Art. 14.] That goods of either party should be forfeited if laden in ships of an enemy of the other. [Art. 17.] That armed vessels of one party might freely carry prizes into the other's ports, without paying duties to courts, and might freely depart to the places designated in their commissions, and that neither party should give shelter to captors of prizes from the other. [Art. 22.] That privateers of an enemy of one party should not be allowed to be fitted out or to sell prizes in the ports of the other. [Art. 23.] That free ships should make free goods. [Art. 24.] Defined articles contraband of war, and excepted from that class many articles not free by the law of nations. [Art. 25.] In case one party should be at war, the vessels of the other should be furnished with sea letters, or
3 passports, and with certificates containing the particulars of the cargo, so as to relieve the rigors of search. Secondly. The Treaty of Jllldance, concluded on the same day, February 6, 1778. In this treaty, the parties recited the execution of the Treaty of Amity and Commerce, declared that they had considered the means- of strengthening-their engagements, particularly in case Great Britain,, in resentment against those engagements, should break the peace wittP France, either by direct hostilities or by hindering her cotnmerce and navigation, contrary to the rights of nations and the peace subsisting , between those countries; and that therefore they had agreed,. that [Art. 1] if war should break out between France and Great Britain, during the continuance of the existing war between the United Statesand England, that then his Majesty and the United States would make it a common cause, and aid each other mutually with their good offices,. their counsel, and their forces, as was becoming to good and faithful allies. [Art. 2.] That the essential and direct end of their defensive alliance was to maintain effectually the Liberty, Sovereignty,, and Independence, absolute and unlimited, of the United States of America, as well in matters of government as of commerce. [Arts. 3 and 4.] ThaU each party should make every effort to attain that end; and that they should, in every possible way, act in concert, and with promptness and* good faith. [Arts. 5, 6, and 7.] That France renounced, in favor of the United States, conquests that might be made by the allied armies, except- the British Islands in or near the Gulf of Mexico. [Arts. 8 and 9.] That- neither party should conclude a truce or peace without the other’s con-- sent; and that neither party should demand any compensation from the other. [Art. 11.] The two parties guarantied mutually, from, the date of' the treaty forever against all other Powers, to wit—the United States to his Most Christian Majesty the then existing possessions of the Crown ol France in America, as well as those it might acquire by the treaty of peace. And his Most Christian Majesty, on his own part, guarantied to the United States their Liberty, Sovereignty, and Independence, absolute and unlimited, and also their possessions, and the additions or conquests that the Confederation might obtain during the war, conformably to the 5th and 6th. articles. [Art. 12.] In order to fix more precisely the application of the preceding article, the contracting parties declared that, in case of a rupture between France and England, the reciprocal guaranty declared in that article should have its full force and effect the moment such rupture should: break out; and if such rupture should not take place, the mutual obligations of the said guaranty should not commence until the moment of the- cessation of the war then existing between the United States and England: should have ascertained their possessions. Thirdly. The Treaty called the Consular Convention, concluded on the 14th of November, 1788, containing the following articles : “ Art. 8. The Consuls or Vice Consuls shall exercise police over all the vessels- of their respective nations ; and shall have, on board the said vessels, all power and jurisdiction in civil matters, in all the disputes which may there arise. They shall have an entire inspection over the said vessels, their crews, and the changes and substitutions therein to be made; for which purpose they may go on board the said, vessels whenever they may judge it necessary.” “ Art. 12. All differences and suits between the subjects of the Most Christian, King in the United States, or between the citizens of the United States within the. dominions of the Most Christian King, and particularly all disputes relative to the wages and terms of engagement of the crews of their respective vessels, and all the differences, of whatever nature they be, which may arise between the privates of the said crews, or between captains of different vessels of their nations, shall be
4 determined by their respective Consuls. The officers of the country, civil or military, shall not interfere therein, or take any part whatever in the matter; and the appeals from the said consular tribunals shall be carried before the tribunals of France or of the United .States.” The French Revolution began in 1789, and in 1793 it became a general European war, in which France, while treading continually upon the fiercest internal fires, bared her head to all the thunderbolts of Despotism. Washington, by the serene tranquillity and majestic justice of his character, repressed the sympathies of the United States for France and the Republican cause, and sent forth his memorable proclamation : “ Whereas,” said the President, “ it appears that a state of war exists between Austria, Prussia, Sardinia, Great Britain, and the United Netherlands, of the one part, and France, on the other, and the duty and interest of the United States require that they should, with sincerity and good faith, adopt and pursue a conduct friendly and impartial towards the belligerent Powers, I have therefore thought fit, by these presents, to declare the disposition of the United States to observe the conduct aforesaid.” No less a character than Washington could have assumed neutrality in such a crisis. Nor could even he protect it in that fierce conflict of armed opinion which raged throughout Europe, as if all its separate and widely different States had been one entire yet distracted commonwealth. The cost of supplies rose two, three, and four fold, under the demands of the belligerent nations. The United States put in motion, for once, and all at once, the three wheels of industry, Production, Manufacture, and Exchange, and wealth flowed in upon them like a spring tide. The combatants, relapsing into the morality of the Barbary Powers, seized arid confiscated neutral ships and their cargoes. American commerce was thus suddenly checked, and the revenues it yielded rapidly declined. Jefferson, then'Secretary of State, met the enemy with a declaration— “ I have it in charge from the President to assure the merchants of the United States concerned in foreign commerce or navigation, that attention wifi be paid to any injuries they may suffer on the high seas or in foreign countries, contrary to the law of nations or to existing treaties; and that, on their forwarding hither well- authenticated evidences of the same, proper proceedings will be adopted for their relief.” The American merchants, thus stimulated, prosecuted more diligently than before a trade which yielded enticing profits, while its risks seemed to have been underwritten by their country. The maritime injuries suffered by Americans at the hands of France in the course of the'war were at the time classified as follows : First. Spoliations and mal-treatment of the vessels of American citizens at sea, by French ships of war and privateers. Second. A long and distressing embargo, which detained many American vessels at Bordeaux in 1793 and 1794. Third. The dishonor of bills and other evidences of debt due to American citizens for supplies furnished, at the request of France, to herself and to her West India Islands, in a period of famine and civil war. Fourth. The seizure or forced sales of the cargoes of American vessels, ■and the appropriation of them to public uses. Fifth. The non-performance of contracts for supplies, made by the French authorities with American citizens. .Sixth. The condemnation of American vessels and cargoes under marine ordinances of France incompatible with treaties. Seventh. Captures, in violation of the provisions of the commercial treaty, of American vessels laden with provisions, bound to the ports of tire enemy.
5 To elucidate the nature of these injuries : On the 9th of May, 1793, France authorized armed vessels and privateers to arrest and bring into her ports neutral ships, laden wholly or in part either with provisions belonging to neutral nations and destined to an enemy’s ports, or with merchandise belonging to an enemy, and declared that such merchandise should be lawful prize, while such provisions should be paid for according to their value at the place of destination, and just indemnification should be made for the freights and the detention of the ships. This decree was alternately rescinded as to the United States, restored, rescinded again, and finally restored and left in full effect. American vessels known and confessed, but found without passport or certificate, in the exact form prescribed by the 22d article of the Treaty of Amit}' and Commerce, were, by a decree of the 3d of March, 1797, declared lawful prizes. On the 2d of July, 1796, France decreed that she would treat neutral vessels, either as to confiscations, searches, or captures, in the same manner that they suffered the English to treat them—a decree that punished with violence the endurance of aggression committed by another, while it confided in the discretion of the second corsair to determine who, by becoming victims of the first, had offended against so extraordinary a code.. On the 29th of October, 1799, France decreed that any native of an allied or even of a neutral country, found wearing a hostile commission, or serving in an enemy’s crew, should suffer as a pirate, without being allowed to allege duress, by violence, menace, or otherwise. Besides one hundred and three vessels w'hich were detained by the embargo at Bordeaux, there is a list of six hundred and nineteen which were captured and plundered before 1800. The true number of spoliations is said to have been three times greater. Contemporaneous expositions by the authorities of the United States placed the aggregate of damages sustained by the, merchants at more than twenty millions of dollars. Of these , damages, portions amounting to about ten millions of dollars were adjusted and paid chiefly under the convention of 1800, finally carried into effect by the Louisiana treaty in 1803. The exact amount of damages due, however, is not now in question. The bill before the Senate confines itself to unadjusted claims to be actually proved, and awards only five millions, without interest, in satisfaction of all that shall be established. The United States diligently prosecuted the claims from 1793 to 1800, but France did not so long remain a mere respondent. Edmund C. Genet, her minister, claimed, and actually assumed to fit out privateers in American ports, to cruise against British vessels. Under the 22d article of the Treaty of Amity and Commerce, he demanded what, in fact, were admiralty powers, for French consuls in American ports, by virtue of article 8th of the Consular Convention ; while, under color of the 17th article of the Treaty of Amity and Commerce, he insisted that French vessels had a right to sell their prizes free from all duties in American ports ; and, finally, he complained that British ships were permitted to take French goods out of American vessels, while a reciprocal right was denied to the French marine. All these complaints, however, were disallowed, upon grounds which wfill not now' be questioned. Nor were the relations between the United States and Great Britain les?, disturbed. Besides having offended earlierand more flagrantly than France- against our neutrality, Great Britain still, in violation of the Treaty of Independence, held the military posts on our Western frontiers, and, through, them, the control of the disaffected Indian tribes; nor did she seem unwilling, amidst our domestic distractions, to provoke a new trial of our/
f) ability to maintain the independence she had so reluctantly Confessed. While John Jay opened negotiations with Great Britain, at London, James Monroe, at Paris, assured the French Directory that Mr. Jay;s object was to obtain cofnpensation for spoliations, with an immediate restitution of the Western posts; and that he was positively forbidden from weakening the engagements, existing between the United States and France. These assurances were effectual. Early in 1795 the French Directory decreed that the Treaty of Amity and Commerce should thenceforth be strictly •observed, and provided for indemnifying those who had suffered by the embargo at Bordeaux ; and Mr. Monroe began a dispatch with announcing that a satisfactory arrangement of the claims for spoliations was at hand. But he closed the communication with a statement, that the ground thus happily gained had been suddenly lost, by reason of rumored stipulations injurious to France in the British treaty just then signed at London. A cloud, of political mystery gathered upon this compact from the day of its execution, the 19th of November, 1794, until it was finally promulgated on the 9th of May, 1796. France complained of this concealment as disingenuous ; and she ever afterwards maintained that the United States had not merely violated their engagements with her, but had even abandoned, ■also, their professed neutrality, by relinquishing the principle that free ships made free goods, and by giving to England a too favorable standard of contraband. She therefore pursued her depredations more recklessly than beforehand with the avowed purpose of compelling the United States to break their new engagements with Great Britain, her ancient and most inveterate enemy. Mr. Monroe was replaced by Charles Cotesworth Pinckney, but France now refused to receive or recognise a Minister. A new and august commission was constituted, consisting of Mr. Pinckney, John Marshall, and Elbridge Gerry, who, after enduring many insults and baffling many intrigues, returned to the United States. The United States, apprehending war with not only France, but Great Britain also, laid the foundations of their present systems of military and naval defence ; and the controversy with the former Power ripened into resistance, reprisal, and retaliation. After two years had thus passed, and the French Directory had consented to negotiate, Oliver Ellsworth, William R. Davie, and William Vans Murray, proceeded to Paris as ambassadors. They found France just entering the fourth act of the drama of her Revolution, the Consulate of the youthful Conqueror of Italy. The American ministers demanded indemnities for the spoliations, as a sine qua non. The French ministers, at whose head was Joseph Bonaparte, readily yielded this condition, but insisted at the samfe time on a recognition and renewal of the ancient treaties, with national damages for the violation of them, as a sine qua non on their part. The Americans, declining in every case to continue the ancient treaties, proposed to, purchase exemption from their most embarrassing stipulations. They offered ten millions of francs for a release from the article of guaranty, and three millions of francs for a reduction of the privileges granted to France by the 17th article of the Treaty of Commerce, to such as were ■allowed by the United States to the most favored nation. France rejected all such overtures, and the commissioners, respectively receding from their extreme demands, concluded an accommodation by which the United 'States received compensation for the plunder of vessels not yet condemned, together with payment of the claims founded upon contracts, and also a satisfactory designation of articles contraband of war. The claims for spoliations in cases where condemnation had already passed, the original sine qua non on our part, together with the reciprocal claims of
France for indemnities, and for a recognition and renewal of the ancient _ treaties, the original sine qua non on the part of France, were reserved by the following article : “ Art. 2. The Ministers Plenipotentiary of the two parties not being able to agree at present respecting the Treaty of Alliance of the 6th of February, 1778, the Treaty of Amity and Commerce of the same date, and the Convention of the 14th of November, 1788, nor upon the indemnities mutually due or claimed, the parties will negotiate further on those subjects.at a convenient time; and until they may have agreed upon these points, the said Treaties and Conventions shall have no operation, and the relations of the two countries shall be i^gulated as follows.” The United States amended the new compact by striking out this second article altogether, and by adding a new one which limited its duration to' eight years. Bonaparte, First Consul, accepted the amendments, with an explanation, in these words: “ Provided, That by this retrenchment the two States renounce their respective pretensions which are the objects of the said (second) article.” The United States assented, and the compact was ratified as thus mutually amended. This is the Convention of 1800. “ The pretensions ” which France thus relinquished were claims for indemnities for violations of the ancient treaties by the United States, together with a continuance and a renewal of those treaties; and the “ pretensions” which the United States thus renounced were the claims for indemnities for spoliations upon the property of American merchants, which are the subjects of the bill now before the Senate of the United States. Mr. President, this review discloses— First. That on the 16th day of February, 1778, and on the 14th November, 1788, the United States and France entered into reciprocal political and commercial engagements mutually beneficial. Secondly. That, previously to the 30th of September, 1800, France violated her engagements by committing depredations, in which merchants, citizens of the United States, sustained damages to the amount of twenty millions of dollars, of which, after allowing all claims adjusted, there still remains the sum of ten millions of dollars, exclusive of interest. Thirdly. That the United States negotiated with France for payment of those damages, and also for a release from their ancient obligations ; and that France conceded the claims for damages, but demanded national indemnities for a violation of the treaties by the United States, and also a continuance and renewal of them. Fourthly. That the United States renounced their claims for damages, in consideration of a release by France of the treaties, and of her claims for damages. Fifthly. That thus the United States confiscated ten millions of private property of their merchants, and applied it to the purchase of national benefits, under a Constitution which declares that private property shall not be taken for public uses without just compensation to its owners. It seems to result from these facts, that the United States became immediately liable to pay to the American merchants the sums before due to them by France ; and as this obligation was assumed by the United States in lieu of their ancient engagements with France, undertaken to secure the establishment of the national liberty and independence, it becomes in equity invested with their sacredness and sanctions, and therefore ought to be regarded as a debt incurred for the attainment of the sovereignty, liberty, and independence of the United States.
8 Why, then, Mr. President, shall not this debt, so ancient,, and apparently so sacred and so just, be discharged ? I proceed to review the reasons which have been at various times assigned. First. The intrinsic justice of the claims has been questioned. The very learned and justly distinguished Senator from Missouri, [Mr.. Benton,] in a former debate, stated that France had justified these spoliations, on the ground that the ships seized were in part laden with goods belonging to Englishmen, who had borrowed the names of Americans. I have not been able torfind evidence to support such a pretension. On the other hand, the diplomatic language of the United States constantly claimed that the sufferers were American citizens. Sir, if these claims are spurious, then it must be true that either Ellsworth, Marshall, Pinckney,. Monroe, Morris, Jefferson, Adams the elder, and Washington, were ignorant of the fact, or that they colluded to defraud France. Neither position can be true. The claims are therefore just. An objection raised by the Senator from Virginia [Mr. Hunter] falls under the same head. It is that the French Government have a list or table of the claims submitted in 1803, which was presented to the French Government by the American Commissioners, and which shows that the French, as the Senator says, suppose that they paid, under the Convention of 1803, all the claims of American citizens. I have this table before me. If the honorable Senator will refer to the treaty of 1800, he will find that it stipulated for the payment of the class specified in that table only—to witt debts owing on contracts—and that the claims for the spoliations now in question were omitted expressly on the ground that they were excluded by the treaty of 1800. Here is the article of that treaty : “ The debts contracted by one of the two nations with individuals of the other, or by the individuals of one with the 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 conf scations.'’—Volume VIII of Statutes at Large, p. 180. Then, what is left out of this table ? The reduced amount, in the apprehension of the Senator from Virginia, [Mr. Hunter,] is just exactly that portion of the claims left out of the treaty, and which is the subject of the present bill. Secondly. It has been objected in late years that the claims belonged to speculators. Certainly few of the sufferers survive, and soon all will have departed.- But the claims are property; they were the property of those sufferers. As property they could be transferred and transmitted by assignment, will, and administration. These are only modes in which property is perpetuated; and this capability of being perpetuated is inherent in it, and is always rightfully and necessarily recognised and protected by all Governments, with proper limitations. Individual property is the ballast of the State. Wo to the State that casts it overboard. That State is sure to drift away, and to break upon rocks. But the allegation that speculators have purchased these claims is denied, while the bill protects,the public if it be true. None but a lawful assignee can take any benefit from the bill, nor can he receive in any case more than he actually paid for the claim. Thirdly. It is said that the evidences of the claims and of title must necessarily be loose and inconclusive. However this may be, the fault does not rest with the claimants, while the loss will fall upon them. Moreover, they must produce legal evidence. The United States can justly ask no more.
9 Fourthly. It is denied that 'the United States exchanged a release-of the claims for a release of the ancient treaties. We have seen that in form at least the treaty of 1800 was such an exchange of those equivalents. It was understood to be such an exchange, in effect, when made. Robert R. Livingston said : “ It will be well recollected by the distinguished c’ aracters who had the management of the negotiation, that the payment for illegal captures, with damages and indemnities, was demanded on the one side, and the renewal of the treaties of 1778 on the other; that they are considered as of equivalent value, and that they only formed the subject of the second article.”—Letter to Talleyrand, .April 17, 1802. Napoleon, at St. Helena, declared— “ That the suppression of the second article at once put an end to the privileges which France had possessed by the treaties of 1778, and annulled the just claims which America might have had for injuries done in time of peace.”—Conversation with Gourgand. Notwithstanding these and similar contemporaneous expositions, it has been insisted here by two of my very eminent predecessors, [Mr. Wright and Mr. Dix,] as well as by others, that this confessed form of the treaty was a mere diplomatic artifice ; that in fact it was not an exchange of equivalents ; and that the claims for spoliations were renounced because they could not be enforced, and not for an adequate and admitted consideration. Sir, did Oliver Ellsworth and his colleagues combine to practice a diplomatic fraud upon France ? Certainly not. Were they then circumvented ? If we should grant that they were, there would yet remain John Adams, President in 1800, and Thomas Jefferson, President in 1801, and the Senate of those years, all equally compromited. Who will impeach their intelligence or their directness ? Sir, upon whom shall we rely to vindicate our own less deserved and ephemeral fame, if we strike so rudely the monuments where these great names lie sleeping. If the United States can plead fraud in this or any other case, how shall creditors or allies, individuals or States, learn to distinguish between obligations which we admit to be valid and those which we claim a right to repudiate ? No, sir ; we cannot raise such a defence. Nor could it be maintained. No one questions the sincerity of the United States in prosecuting these claims. France was equally sincere in admitting them, and in preferring her own. Even in her piratical decrees, she pleaded an overpowering pressure, and promised reparation : “ Being informed that some French privateers have taken vessels belonging to the United States of America, I hasten to engage you to- take the most speedy and efficacious means to put a stop to this robbery.”—Monge, Minister of Marine, to the Ordonnateurs of France, March 30, 1793. Thus France was ingenuous even in her agony of social convulsion. “ Although it [the treaty of 1778] is reciprocal upon the whole, some provisions are more specially applicable to the fixed position of the United States, and others have allusion only to the eventual position of France. The latter has stipulated few advantages—advantages which do not in any respect injure the United States, and the lawfulness of which no foreign nation can contest. The French nation will never renounce them.”—M. Talleyrand to Mr. Gerry, January 18, 1798. The Convention of 1800 was then, in fact as well as in form, a treaty of equivalents. Can the United States impeach it now, on the ground of the inadequacy of the equivalent received ? Certainly not, sir. It is too late; the parties are changed. The merchants’ claims are just the same, whether
10 you received an adequate equivalent, or exchanged their demands for an insufficient consideration. Nevertheless, let us pursue the objection. You say that however intrinsically just the claims may have been,'they were renounced because you could not collect them without resort to war. I reply, a just claim against a civilized State is never valueless. If the State is insolvent to-day, it may become able to pay to-morrow; if it refuses to be just to-day, it may become more just to-morrow. It is true that the United States were not bound to declare war for the claims, but it is equally true that they had no right to confiscate them without indemnity. Thus we have reached one of the main defences against these claims, viz : Fifthly. That the ancient treaties had become void as against the United States, and therefore the release of them by France'in 1800 was valueless. This argument involves two propositions : 1. That France flagrantly violated those compacts. 2. That the United States perfectly fulfilled them. 1. That France flagrantly violated those compacts. The chief object of the treaties of 1778 was the establishment of the Liberty, Sovereignty, and Independence of th$ United States, in the war of the Revolution, and for- . ever afterwards. France fulfilled her guarantee in the Revolution; But the merit of that fulfilment is denied. It was said by one of my predecessors, [Mr. Dix,] that France was not moved by generosity or sympathy in entering into the treaties, or in fulfilling them. Sir, a nation whose pride can condescend so far as to receive benefits, vindicates itself fully by the exercise of unquestioning and enduring gratitude. Sir, interest and ambition do indeed too often mingle with the purest and highest of human motives, not less of States than of individuals. But the character of motives must be determined by the character of the actions in which they result. Sir, in the strait of the Revolution, your agents applied for aid, not to the King of France only, but also to the Emperor of Germany, to the Kings of Spain and Prussia, and to the Grand Duke of Tuscany. From neither of them could they gain so much as a protest to discountenance the hire of mercenaries by the German Princes to the King of Great Britain, to be employed with savage Indian tribes against us. But France yielded money, volunteers, recognition, and armed alliance. Was there no merit in that ? It is true that in our oppressor France found a rival to humble and overthrow. But had Britain no other rival or enemy than France ? If there were others, why did we not win them to our side ? France did -indeed exact a guarantee from the United States in exchange for her own. But did we find any othef Power willing to enter into such an exchange ? Moreover, France conceded to us all the conquests which should be made by the allied armies, in the war of the Revolution, except such as would have been useless to us, and even including the Canadas, of which we had so recently assisted to deprive her; and she insisted on no remuneration after the war should end. Was there no magnanimity in that ? France was not actuated chiefly by ambition or revenge in making the engagements of 1778. The People and even the Court were filled with enthusiastic admiration of the United States and of their cause. Fenelon had already educated even Royalty in that cause, in the palace and under the eye of the Grand Monarque. The court, the army, the navy, the rulers and the people of France, had no standard of a hero but Washington, no model of a philosopher but Franklin, nor of a State but the United States. Seventeen years ago I traversed the now deserted and desolate chambers of the Bourbons of France. Never shall I forget the grateful pride I felt when I
11 found among the family pictures of the House of Orleans one which commemorated the visit of Franklin to the Palais Royale, and among the illustrations of the national glory at Versailles, one that celebrated the surrender of Cornwallis. The failure of Louis XVI as a King resulted from his attempting, like Nerva in ancient Rome, and Pio Nono in modern Rome, to combine the two incompatible things, the enlargement of popular freedom with the maintenance of regal power. Nor may we undervalue the aid received from France. It decided the contest. It cost her more than three hundred millions of dollars, and hurried her into a Revolution more exhausting than any other State, in the tide of time, has endured. . Thus it appears that France fulfilled faithfully and completely her chief engagements in the treaties of 1778, while it is admitted that she failed afterwards in less essential obligations, but with protestations of adherence and promises of reparation. 2. Did the United States completely and absolutely fulfil their reciprocal obligations? When the war of 1793 broke out, France held all the posses? sions in America which they had guarantied to her forever, and they were all exposed. Yet the United States never defended nor attempted to defend them ; never devoted a life nor even a dollar to than end. Thus, instead of standing on fulfilment, we are at once brought to the necessity of justifying a non-performance of the engagements.' The justification has been placed on several grounds, viz : 1. That France did not demand fulfilment. Such an inference is warranted by some of the papers before us, but there are others which leave the fact very doubtful: “ I beg you to lay before the President of the United States, as soon as possible, the decree and the enclosed note, and to obtain from him the Cabinet decision, either as to the guaranty that I have claimed the fulfilment of for our colonies, &c.”—E, C. Genet’s Letter of November 14, 1793. But if France did not demand the performance of the guaranty in the war, she insisted on its obligation. The United States practically disavowed and renounced it. The proposition is self-evident. The treaty stipulated Alliance, when France should demand it. The United States assumed Neutrality in every event. 2. The non-performance by the United States has been justified on the ground that the casus foederis of the stipulated guaranty was a defensive war. and that the war of 1793 was not of that character. In reply to this argument, I observe, in the first place, that the terms of the Treaty of Alliance stipulated for the execution of the guaranty in the case of “ war to break out:” Any war, offensive or defensive. But the Senator from Virginia [Mr. Hunter] overpowers us with an argument w’hich by me is irresistible. He says that only a defensive war must have been contemplated, because a stipulation for aid and alliance in an aggressive war would be immoral, unjust, and therefore void. Sir, I acknowledge that higher law of universal and eternal justice. And I admit that all laws of States, and all treaties and compacts between States, which contravene its sacred provisions, are utterly void and of no effect. I accept therefore the Senator’s definition of the casus foederis; that it was a defen- ;sive war. I controvert, and I rest my'cause upon controverting, his assumption, that the war of 1793, between the Allied Powers and France, was on her part an aggressive and not a defensive war. The very proclamation of neutrality implies a denial of that assumption. The war therein described is a war “ between Austria, Prussia, Sardinia, -Great Britain, and the United Netherlands, of the one part, and France, on •the other.” Why was the aggressor the last party to be named ? But
12 History has determined the character of the parties in that momentous , contest. “ The first war of the French Revolution,” says Wheaton, in his History of the Law of Nations, “originated in the application by the Allied Powers: of the principle of armed intervention to the internal affairs of France, for- the purpose of checking the progress of her revolutionary principles and the extension of her military power.” War was declared, indeed, by France, but only as a reply to the ultimatum of a Restoration of Despotism) tendered by the Armed League of Enemies. Thus, sir, we have arrived at the true ground of defence of the neutrality of 1793, to wit: that performance of the treaty was impossible. Sir, in a practical sense, performance was impossible. First, on account . of the condition of France. The parties in 1778 of course expected that. France would remain an organized State, capable of conducting combined operations under the treaty, upon a method and towards an end, without. danger from herself to her ally. But it was not so with France. She became not merely revolutionary, but disorganized, having no cettain and: permanent head, no stable and effective legislature. All the organs of the State were shattered broken, and scattered. “ Nee color imperii, nec frons erat ulla Senaius.” The King, after unavailing changes of ministry, convened the Assembly of the Notables. After holding the bed of justice, and after attempting to establish the new plenary courts, he called the States General, which soon became a Constituent Assembly, absorbing all the functions of government. Suddenly the People of Paris rose, and brought the King, Queen, and Assembly, into captivity. A constitutional monarchy rose under the dictation of the People ; but the King was degraded, condemned, and executed, and a Republic appeared. The Republic went down before the power of’ cabals, which rapidly succeeded each other, all sustaining their administrations, throughout a reign of terror, by the tribunal of blood. These unnatural convulsions could have but one end—the restoration of the State by a Dictator. That magistrate, in 1800, appeared in the person of Napoleon. When and where, before that event, could the United States have been required to go to the aid of France ? It was well that France had regained her liberty ; but her ally had a right, before going into a war with her against Europe, to see that liberty combined with government and with< public force—with national morality, with social order, and with civil man- - ners. All this was wisely deemed by Washington necessary to secure the United States against absolute danger, and to render their alliance at all useful to France. For, on what side were the United States to array themselves ? With the King while he yet held the reins of state, or with the National Assembly while abolishing the monarchy? With the ephemeral Directories, which governed France through the guillotine, or with the Counter-Revolutionists, struggling to restore internal peace and repose r Well did Mr. Jefferson say, that if the United States had panted for war as much as ancient Rome—if their armies had been as effective as those of Prussia—if their coffers had been full and their debts annihilated—even then, peace was too precious to be put at hazard, in an enterprise with an ally thus deranged and disorganized. And what was the condition of the United States, that they should periH all in the domestic rage of France and her foreign strife?. Mr. Jefferson^ was no false interpreter, and he thus describedit. “An infant country,, deep in debt, necessitated to borrow in Europe—without a land or naval*, force—without a competency of arms and ammunition—with a commerce: connected beyond the Atlantic—with the certainty of enhancing the price?
13 <■ of foreign productions, and of diminishing that of our own—with a Constitution little more than four years old, in a state of probation, and not exempt from foes.” No greater calamity than wrar could then have fallen upon the United States, nor could war, in any other case, ever come in a iform so fearful. It was not a fault of Washington, as it was of Cato, not to see that public affairs were incapable of perfection, and that States could not be governed without submitting lesser interests to greater. On the contrary, the measure of his duty was that of Cicero in the consulship—to take care that the Republic should suffer no detriment. Well and wisely did he perform that duty. He could not aid. France, but he . saved his own country. Forever, then, let the justice and the wisdom of ^Washington, fn that memorable crisis, stand vindicated and established. But what does all this prove ? Just this, and no more : That circum- *Stances, affecting France and the United States equally, unforeseen and imperious, prevented the United States from even undertaking to perform their compact with France, in the way stipulated in a particular emergency. But the circumstances creating this impossibility were not alone the fault or misfortune of France, but arose in part out of their own condition; and the omission to perform it assured the safety and promoted the welfare of the United States. Under such circumstances, the United States owed to France, if not indemnities for past non-performance, at Teast recognition and renewal of the ancient treaties. If, then, France was held by the treaties, because the United States excused their non-performance,, they were equally bound to extenuate her deviations, under such a pressure, from prudence, order, and even from justice, if she were willing to make reparation. None knew so well as they, that France broke the treaties in Tess essential obligations, not from want of virtue to be faithful, but from want of magistracy to enforce fidelity. But while France was always " willing to make reparation, the United States insisted on being absolutely free from obligations. Jay’s treaty was confessedly injurious to France. Either that treaty was necessary to the United States, or it was unnecessary. If it was unnecessary, the complaints of France were just. If ne- <cessary, then she was entitled to equivalents. A release from the engagements in the ancient treaties was necessary to the United States, or it was <not. If it was not necessary, then the United States ought not to have bartered the merchants’ claims away for it. If it was necessary, then the United States received an adequate equivalent. Thus it appears that the ancient treaties had not lost their obligation against the United States by reason of any flagrant violation of them by France. Sixthly. The opponents of this bill next insist that the treaties had been ■abrogated by an act of Congress which was passed on the 1th day of July, 4798, viz: “Whereas the treaties concluded between the United States and France have ' been repeatedly violated on the part of the French Government, and the just claims • of the United States for reparation of the injuries so committed have been refused, and their attempts to negotiate an amicable adjustment of all complaints between the two nations have been repelled with indignity; and whereas, under the authority of the French Government, there is yet pursued against the United States a .system of predatory violence, infracting the. said treaties, and hostile to the rights of .a free and independent nation— “ Be it enacted by the Senate and House of Representatives of the United States of . America in Congress assembled, 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'.”—,Statutes at Large, I, p. 578.
14 The treaty-making power is vested, not in Congress, but in the President, by and with the advice and consent of the Senate. A valid treaty can be abrogated only by the power which is competent to make one. A treaty already void needs no act of Congress or of the President or of the Senate to abrogate it, while one not void cannot be abrogated except in the constitutional way. A treaty, moreover, is the act of two parties. Neither can dissolve it without the concurrence of the other. The act of Congress, then, left the obligations of the ancient treaties, so far as France was concerned, and so far as the United States politically were concerned, just as it found them. Seventhly. As a last resort, the opponents of these claims assert that the release of the ancient treaties was valueless, because they had been abrogated by war between the two nations. I waive the objection that these treaties were of such a nature that they could not be abrogated by war, and I simply deny that any such war occurred. If war did take place, it must, have begun in some way and at some time,, and have ended in some other way and at some other time. It is quite certain that France never declared war against the United States, and equal}', so that the United States never declared war against France. There were hostilities between them, but hostilities are not always war. The statute book of the United States shows the nature and extent of these hostilities. We were not at war with France on the 14th of January, 1797; for on that day Congress declared it a misdemeanor for an American to engage in privateering against nations with whom the United States were at peace, and we know that France was then regarded as standing in that relation because the United States afterwards authorized privateering against her in certain cases. We were not at war with France on the 28th of May, 1798; for on that day Congress directed that a provisional army should be raised in the event of a declaration of war against the United States, or of actual invasion of their territory by a foreign Power, or of imminent danger of such invasion. Nor were we at war with France on the 13th of June, 1798; for on that, day Congress suspended commercial relations with France—a measure quite unnecessary, if war had already broken up that intercourse. Nor were we at war on the 25th of June, 1798 ; for on that day Congress authorized American vessels to oppose and resist searches, restraints,, and seizures, by armed vessels of France. Such opposition and resistance- would have needed no sanction if committed in open war. We were not at war with France on the 2d day of March, 1799 ; for on that day Congress authorized the President to levy and organize additional regiments, in case war should break out between the United States and a foreign European Power. We were not yet at war on the 20th of February, 1800 ; for on that day Congress directed that all further enlistments should be suspended, unless during the recess of Congress and during the existing differences (which existing differences the sequel wall show were not war) between the United States and France, or imminent danger of invasion of the territory of the- United States by that Republic, should, in the opinion of the President, be deemed to have arisen. Finally, we were not at war on the 30th of September, 1800 ; for on that day the then “existing differences” between France and the United States were adjusted by a Convention, concluded on the basis that al though,.
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