DEC. 23, 1834.]

French Spoliations.

[SENATE.

United States once offered to pay five millions of francs
to be released from the obligations of the ancient trea-
ties, and that France once proposed to receive ten mil-
lions of francs for a part, and thirteen millions for the
whole, violation of plighted faith. It is easy to con-
ceive how these offers might be made on either hand,
although neither party should consider its claims as of
real value. It amounts to nothing more nor less than
this: The United States were willing to allow five mil-vidual injury to the last moment.
lions of francs (less than a million of dollars) if France
would consent to a restitution of all captures, seizures,
and spoliations, on both hands; and, by such an arrange-
ment, no doubt, we should have been great gainers.
France was willing to negotiate in a similar manner, if
the sum of nominal damage for alleged infraction of the
ancient treaties might be raised so much as to bring her
not greatly in our debt. As the parties could not be
brought to agree, it was quite natural that the basis of
actual war should be taken as the ultimate ground of ne-
gotiation, and bona fide captures (excepting public arm-
ed ships) were suffered to remain in the hands of the
captors. For such captures, the bill provides restitu-
tion from our own treasury. The principle that would
allow them would allow restitution from our treasury
for any and every capture made in any maritime war
that ever was waged.

seizures and condemnations by the orders in council,
until finding the prospect of remuneration absolutely
hopeless, and finding peace of more value than further
destruction of lives and property, this Government, in
both cases, consented to waive all further claims for ille-
gal seizures and condemnations. There probably was
never an instance of treaty with any foreign nation,
where this Government did not press the claims for indi-

The admission of our negotiators, that there was ground for pressing these claims on France, is taken for granted as an admission that the claims are now due by this Government. Such an inference is gratuitous and fallacious. The history of diplomacy, in all ages, furnishes evidence that clairns and pretensions are often set up to counteract other claims and pretensions, both of which in the end are yielded; and that these, although sometimes founded in justice, are yielded as an offset to those having really no foundation. The claim by the United States for remuneration of seizures and spoliations under the treaties of alliance and commerce, after the United States by act of Congress had declared those treaties at an end, was likely to be met by the best pretext for claim the French Government could find under the same treaties. As neither of the claims was perhaps tenable, under the practice of nations, to make no restitution where a state of war-call it, if you please, a

The Senator from Maine says: "France offered to submit all claims," including her extraordinary claim for dam-quasi war"-had existed; so both nations at length ages under the ancient treaties, "to a commission," and to abide by the award of that commission; but that the United States refused. This was perfectly natural, if the commissioners for the United States believed, as was the fact, that the French claim for damages was a mere finesse. They did, as all prudent men would do, when they declined to leave that claim to be estimated and decided on by persons who might be interested against them, and who might place them under real obligations to pay for what was really no consideration at

all.

It is said that "claims precisely circumstanced like these, have been pressed upon France until she has consented to pay us twenty-five millions of francs." The circumstances of the two cases, as was shown by the Senator from Missouri, [Mr. BENTON,] are so different, that in no two features are they alike. The claims specified under the four different heads of the treaty nego tiated by Mr. Rives, in 1831, bear a very near analogy to those which were provided for in the Louisiana treaty, but are entirely unlike those which were declared to be desperate by the negotiators of the treaty of September 30, 1800.

There is nothing in the fact that should favor these claims, if it be true, as is alleged, that the board of commissioners under the last treaty with France has determined that this class of claims cannot come in under that treaty. The objects of restitution under that treaty are particularly specified under four different heads; and neither of those heads embraces claims that bear even a distant analogy to the claims under consideration.

The zeal with which our Government has at all times advocated the claims of its citizens, is, in this instance, urged as proof that the Government, admitting their justice, is responsible for their discharge. The Quarterly Review says: "As long as they were to be paid by France, no doubt was entertained of their validity." And again: "In performance of this duty (to procure redress for injuries done to our citizens) the Government of the United States invited its citizens to confide their claims to its management, and undertook to do every thing in its power to obtain satisfaction." So the Government of the United States, to the last end of the chapter, pressed on the Government of Great Britain the claims for remuneration under her illegal and unjust

were willing each to withdraw its respective pretensions under treaties which had been broken and declared to be void, and to offset each against the other, all the captures and condemnations that had occurred during the existing differences. And both nations did well for their citizens, to make peace even on these terms; and neither laid itself liable, by consenting to waive the further pressing of individual claims, for the payment of such claims. Negotiation and war could not reclaim them; and the nation was not bound further to compromit the welfare of its citizens by continuing a belligerent attitude on account of these claims.

Mr. President, my propositions are:

1. That a state of war between France and the United States effectually put an end to all obligation by France to make restitution for captures and spoliations beyond what they particularly specified in the treaty of September 30, 1800.

2. That the United States, after pressing France for a restitution of those claims, so long as they could do it without a sacrifice of other paramount public and private interests, assumed no responsibility for their payment by consenting to press those peculiar claims no further.

3. That, if the fact of the existence of war and the abrogation of prior treaties shall be denied, still the United States, having first violated no previous treaty, were under no obligation to France, and owed her nothing for such infraction.

4. That, as the United States owed nothing to France, so the claimants are entitled to no compensation from the United States for any alleged claims on France.

Mr. President, I listened with close attention to the argument of the Senator from Maine [Mr. SHEPLEY] in favor of these claims. From the logical mind of that gentleman, I had anticipated much stronger reasons for passing the bill than he did present: from his known aptitude for thorough investigation, I had anticipated an array of facts giving color, at least, to the strong and positive statements which he had before promised to make so clear and apparent. In his argument I have been disappointed.

Because the Government of the United States-(when we say Government, we mean not all branches of Government, but only the Executive or its agents,) because the agents of this Government expressed a willingness

SENATE.]

French Spoliations.

and a wish to negotiate on the basis of the ancient treaties, and as if no war had existed, the Senator infers that no war did exist. He quotes the French ministers who negotiated the treaty of 1800, as saying that "the treaties have not been broken; that there has only been a misunderstanding;" that " they never thought of making war, nor of creating commotions" in the United States; and this he considers positive and conclusive proof that war had not existed, and that the treaties had not been broken. But did the Senator recollect that, in starting with his argument, he first labored to show that the French nation, at the very commencement, had violated the treaties by ordering the seizure and arrest of neutral ships, and the ships of the United States with the rest?

"The treaties have not been broken." Will the Senator take this ground, to make the claims binding on the United States? Has it not been shown that the treaties were broken? The gentleman himself had first to insist that France broke the treaty when she directed the seizure of the neutral property. Barbe Marbois says France first broke the alliance: the very book of documents, compiled to prove these claims, opens with complaints that France had been the first to violate her treaty engagements.

The gentleman says the state of things that existed was not war; that neither nation set up that there was war; that France has never plead war as a release from these claims; that the annulling of treaties amounted only to cause of war. If both the American and French authorities at any time chose to negotiate on the basis of status quo ante bellum, or even to infer that a general capture of property and hard-fighting on both sides was not war, the same authorities will rise in contradiction of this position. Messrs. Ellsworth, Davie, and Murray, in their journal of September 12, 1800, expressly say that the president of the French commission declared (and the other two commissioners united with him in the declaration,) that he would sooner resign than sign a treaty with indemnities; that any impartial tribunal would declare the present state of things to be war; and that, being a state of war, no indemnities could be claimed.

66

The same American commissioners themselves, in so many words, declare that there was war; they say the treaties have undergone the nullifying operation that war imposes; that doubtless the congressional act authorizing the reduction of French cruisers by force, was an authorization of war, limited, indeed, in its extent, but not in its nature;" and that "clearly, also, their subsequent act, declaring that the treaties had ceased to be obligatory, however proper it might be for the removal of doubts, was but declaratory of the state of things; and certainly," they say--mark the expression!-"it was only from an exercise of the constitutional prerogative of declaring war, that either of them derived validity."

Oliver Wolcott, Secretary of the Treasury, in his report to Congress, January 23, 1800, after the Consular Government had directed a relaxation of the war operations, inferred a state of war to exist, as will be seen by the following extracts:

"That all exports to France or her dependencies were prohibited after the first day of July, 1798, by law of Congress.

"Vessels have been carried to the vicinity of French ports, where, as it is believed, they have been captured by French privateers, in consequence of preconcerted arrangements; other vessels have entered French ports on pretence of distress. Although the vessels have, in many instances, been liberated, yet the cargoes have been detained by order of Government."

The Secretary continues: "The plea of forcible exchange cannot be admitted, without permitting the

DEC. 23, 1834.

French Government virtually to repeal our laws by means of their own internal regulations; and if the United States refuse to submit to an insidious policy, and some of our citizens suffer losses, it is against the French and not against the American Government that their complaints ought to be directed."

I repeat, sir, if these claims had not been interposed, a state of war would never have been doubted; and it will be seen that the whole French commission repudiated the idea that the "state of things" was any thing else than war.

It was entirely unnecessary that the Senator so long dwelt on the proofs that the property for which restitution is claimed was illegally seized; the illegal seizure is not doubted. And while he would urge this as a reason why the American Government should stand in the place of France to make restitution, we urge it as one of the proofs that the United States are exonerated from this restitution; for if by these seizures France first broke the treaties, nothing was due from the United States, even if it should be admitted that we afterwards violated those treaties, as it cannot be contended that one party was bound to a rigid adherence of the treaties, after the other party had repeatedly violated them, and persisted in her determination to continue their violation.

The Senator says the United States, in repeated instances, acknowledged the goodness of these claims; that the negotiators, on some occasions, urged them on France as good and valid; and the Secretary of State declared that the captures were made “in direct violation of the treaties." Instructions also were given, making it an "indispensable condition" that all captures shall be indemnified. The fact that when the whole treaty-making power (not the negotiators alone, but the President and Senate) was brought to act, indemnification was not "an indispensable condition," is better proof that the Government did not, than did, consider this a debt good and of valuable consideration on their part.

But the Senator says "France was willing to indemnify, provided we would acknowledge the treaties to be still in existence;" that she said "the parties on both sides ought to be compensated." Has France, since she threw up indemnities on both sides, ever made restitu tion to her citizens for the property which was captured and condemned by the Americans? Not a dollar! France, it is true, was willing to allow an indemnity, provided we would allow her a greater indemnity, or give her a chance to obtain one; she was willing to revive ancient treaties, that had been declared null and void on both sides, if she could make a better bargain in the one case than she could in the other. But France, in the end, great as was the amount of her claim, was willing to make it a draw game.

The gist of the whole matter is, "the consideration," "the valuable consideration," received by the United States, for which we are bound to pay these claims.

The astute advocate of the claims in the American Quarterly Review had said the claims of France on the United States "were indefinite, and, from their nature, incapable of exact calculation; but they were not on that account less real, or less entitled to attention."

I had hoped the Senator from Maine would be more definite. The violation of the guarantee in the treaty of alliance is set up as giving France her principal claim on us. I have shown you, as I trust, that France never asked of the United States the performance of this guarantee, which would at once have thrown us into collision with England. It was for the interest of France itself that the United States should maintain a neutral position after she had declared war against England; and if it had not been her interest, the guarantee was binding on us only while France was engaged in a defensive, not an

offensive, war. In any event, she could not complain until she had at least made a formal request. Even had France requested, the reasoning of General Hamilton, and his quotation from Vattel, most conclusively demonstrate that if the United States had promised succors to France by treaty, if the furnishing those succors would expose it to an evident danger, this danger is a lawful dispensation from the obligation.

The lengthy correspondence that took place between different envoys and agents, from 1793 to 1800, as well under the ever-changing administrations of the French Directory as under the consular rule of Bonaparte, is full of evidence that neither the guarantee in the treaty of alliance, nor the obligations of the treaties of commerce, were at any time insisted on by France. Then, Messrs. Pinckney, Marshall, and Gerry, in a letter to the Secretary of State, assign as the principal ground of complaint, that the French Directory "wanted a loan" from the United States, which they had no authority to grant; and added, "the Directory felt itself wounded by the different speeches of Mr. Washington and Mr. Adams."

General Washington, accepting the command-in-chief of the armies of the United States, in 1798, at the time of the rupture or war with France, distinctly alleges the unfounded pretensions of the French Directory as his principal reason for once again standing in the service of the country. He says he is induced to enter the service by "their disregard of solemn treaties and the laws of nations;" and that "their demands on us amount to tribute."

The Senator has undertaken to show what were the claims of France on the United States, constituting the obligation of the United States to the present claimants. If I understood him right, they consisted entirely in the value of our obligations to France, under the several treaties of alliance and commerce of 1778. He says the mutual guarantee of one of the treaties, that one party should protect the other in trade with its own enemy, was a valuable property to France, inasmuch as it would have secured her a trade of incalculable amount.

[SENATE.

The Senator from Maine has not shown that this construction of the treaties by the eminent men then constituting the Government of the United States was a false construction. He must show this to prove that the United States were under any obligation to France for failing to perform any treaty stipulation. Will Senators at this day contend that Washington's proclamation of neutrality was indefensible!

The offer of the envoys of the United States to pay a specific sum to release them from the obligations of these treaties, I consider in no other light than an offer to subtract that amount from the claims on France, if she would consent to allow those claims. It was a diplomatic expedient to evade that state of things which really existed, and which, if admitted to exist, precluded all chance of restitution. It was a diplomatic expedient, calculated to secure something for the claims on France; whereas, without it, nothing could be obtained. Hence we find the American envoys willing to give eight millions of francs, while they absolutely refused to leave any thing to the uncertain decision of a board of commissioners. If they had considered this French pretension as of any real value, they would have been equally willing, as was France, to have submitted the whole questions arising under the treaties to a board of commissioners.

Mr. President, of late years invention seems to be put to the rack in devising ways and means to abstract money from the public treasury: in proportion to the sacilities of accumulating money under an onerous system of duties and taxation, have the expedients for expending and making way with the funds of the Government multiplied. Individual claimants are continually pressing on Congress for those antiquated claims, of the existence of which the claimants themselves were not aware until they obtained the information from some speculator, whose whole business is to hunt them up from musty records, and magnanimously offer, for a moiety of what shall be recovered, to do the business of obtaining them. To confront his exposition of these obligations, and Many a man, in some distant section of the country, has even the allegation that the United States at any time unexpectedly received the offer of five, or ten, or violated the treaties, the volumes of published diplomatic twenty per cent. for his chance of recovering a claim in papers furnish abundant testimony. You can scarcely behalf of his father or grandfather, for something done open the books without falling upon them. One or two or suffered in the days of the Revolution, or in the time quotations to this point, at different periods, may suffice. of the quasi war with France, or at some other period of General Washington, in his message to Congress, De-national distress. Claims of this kind, although thoucember 5, 1793, speaking of the difficulties with France,

says:

"In the mean time, I have respected and pursued the stipulations of our treaties, according to what I judged their true sense; and have withheld no act of friendship which their [the French] affairs have called for from us, and which justice to others left us free to perform."

And, as covering nearly the whole ground of controversy, the following extract of a letter from the three American envoys, Messrs. Pinckney, Marshall, and Gerry, to the French Minister of Foreign Affairs, dated February 7, 1798, will serve to prove that, from the beginning to nearly the end of the chapter, the American Government had no idea it was violating any obligation to France by the neutral position it had assumed:

"America (say they) found herself at peace with all the belligerent Powers; she was connected with some of them by treaties of amity and commerce, and with France by a treaty of alliance also. These several treaties were considered with the most serious attention, and with a sincere wish to determine, by fair construction, the obligations which they really imposed. The result of this inquiry was a full conviction that her engagements by no means bound her to take part in the war, but left her so far the mistress of her own conduct, as to VOL. XI.-5

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sands have been paid off, are more numerous now than they have been at any period within the last thirty years, and they will continue to multiply. Success in procuring large sums on claims which have little or no foundation, emboldens others to advance theirs: fraud and forgery are sometimes brought in to aid in abstracting the money of the treasury. It is made the interest of the several States to procure each as much as possible for its share of these allowances; and even members of Congress, acting honestly for the local interests of their constituents, become themselves instrumental in contributing to the common abuses.

If the claims intended to be provided for in this bill shall be allowed, the main part of them will go to swell the enormous wealth of a class of men who owe their good fortune not to their patriotism, but to that cupidity which has often shown itself willing to sacrifice the country's best good on the altar of avarice. Who but the underwriters and ensurers, and those who have ventured on the ocean in pursuit of an unauthorized trade-who but those who have shown themselves willing to sacrifice "free trade and sailors' rights," and to abandon their country in a great contest for equal rights and justice on the ocean-who but these, and such as these, will be benefited by the passage of this bill? Never