Thirty Years' View (Vol. I of 2)

"What public, or national, or political object had we in the negotiation of 1800, which led to the treaty of the 30th September of that year? None, but to put an end to the existing hostilities, and to restore relations of peace and friendship. These could have been as well secured by negotiating upon a war as a peace basis. Indeed, as there were in our former treaties stipulations which we did not want to revive, a negotiation upon the basis of existing war was preferable, so far as the interests of the government were concerned, because that would put all questions, growing out of former treaties between the parties, for ever at rest. Still our negotiators consented to put the negotiation upon the basis of continued peace, and why? Because the adoption of a basis of existing war would have barred effectually and for ever all classes of the claims. This, Mr. W. said, was the only possible assignable reason for the course pursued by the American negotiators; it was the only reason growing out of the existing facts, or out of the interests, public or private, involved in the difficulties between the two nations. He therefore felt himself fully warranted in the conclusion, that the American ministers preferred and adopted a peace basis for the negotiation which resulted in the treaty of the 30th of September, 1800, solely from a wish, as far as they might be able, to save the interests of our citizens holding claims against France.

"Did they, Mr. President, said Mr. W., succeed by this artifice in benefiting the citizens who had sustained injuries? He would let the treaty speak for itself. The following are extracts from the 4th and 5th articles:

"'Art. 4. Property captured, and not yet definitively condemned, or which may be captured before the exchange of ratifications (contraband goods destined to an enemy's port excepted), shall be mutually restored on the following proof of ownership.'

"[Here follows the form of proof, when the article proceeds:]

"'This article shall take effect from the date of the signature of the present convention. And if, from the date of the said signature, any property shall be condemned contrary to the intent of the said convention, before the knowledge of this stipulation shall be obtained, the property so condemned shall, without delay, be restored or paid for.'

"'Art. 5. The debts contracted for by one of the two nations with individuals of the other, or by individuals of the one with individuals of the other, shall be paid, or the payment may be prosecuted in the same manner as if there had been no misunderstanding between the two States. But this clause shall not extend to indemnities claimed on account of captures or confiscations.'

"Here, Mr. W. said, was evidence from the treaty itself, that, by assuming a peace basis for the negotiation, the property of our merchants captured and not condemned was saved to them, and that certain classes of claimants against the French government were provided for, and their rights expressly reserved. So much, therefore, was gained by our negotiators by a departure from the facts, and negotiating to put an end to existing hostilities upon the basis of a continued peace. Was it, then, generous or just to permit these merchants, because our ministers did not succeed in saving all they claimed, to set up this implied admission of continued peace as the foundation of a liability against their own government to pay what was not recovered from France? He could not so consider it, and he felt sure the country never would consent to so responsible an implication from an act of excessive kindness. Mr. W. said he must not be understood as admitting that all was not, by the effect of this treaty, recovered from France, which she ever recognized to be due, or ever intended to pay. On the contrary, his best impression was, from what he had been able to learn of the claims, that the treaty of Louisiana provided for the payment of all the claims which France ever admitted, ever intended to pay, or which there was the most remote hope of recovering in any way whatever. He should, in a subsequent part of his remarks, have occasion to examine that treaty, the claims which were paid under it, and to compare the claims paid with those urged before the treaty of September, 1800.

"Mr. W. said he now came to the consideration of the liability of the United States to these claimants, in case it shall be determined by the Senate that a war between France and the United States had not existed to bar all ground of claim either against France or the United States. He understood the claimants to put this liability upon the assertion that the government of the United States had released their claims against France by the treaty of the 30th of September, 1800, and that the release was made for a full and valuable consideration passing to the United States, which in law and equity made it their duty to pay the claims. The consideration passing to the United States is alleged to be their release from the onerous obligations imposed upon them by the treaties of amity and commerce and alliance of 1778, and the consular convention of 1778, and especially and principally by the seventeenth article of the treaty of amity and commerce, in relation to armed vessels, privateers, and prizes, and by the eleventh article of the treaty of alliance containing the mutual guarantees.

"The release, Mr. W. said, was claimed to have been made in the striking out, by the Senate of the United States, of the second article of the treaty of 30th September, 1800, as that article was originally inserted and agreed upon by the respective negotiators of the two powers, as it stood at the time the treaty was signed. To cause this point to be clearly understood, it would be necessary for him to trouble the Senate with a history of the ratification of this treaty. The second article, as inserted by the negotiators, and as standing at the time of the signing of the treaty, was in the following words:

"'Art. 2. The ministers plenipotentiary of the two powers not being able to agree, at present, respecting the treaty of alliance of 6th February, 1778, the treaty of amity and commerce of the same date, and the convention of 14th of November, 1788, nor upon the indemnities mutually due or claimed, the parties will negotiate further upon these subjects at a convenient time; and, until they may have agreed upon these points, the said treaties and convention shall have no operation, and the relations of the two countries shall be regulated as follows:'

"The residue of the treaty, Mr. W. said, was a substantial copy of the former treaties of amity and commerce, and alliance between the two nations, with such modifications as were desirable to both, and as experience under the former treaties had shown to be for the mutual interests of both.

"This second article was submitted to the Senate by the President as a part of the treaty, as by the constitution of the United States the President was bound to do, to the end that the treaty might be properly ratified on the part of the United States, the French government having previously adopted and ratified it as it was signed by the respective negotiators, the second article being then in the form given above. The Senate refused to advise and consent to this article, and expunged it from the treaty, inserting in its place the following:

"'It is agreed that the present convention shall be in force for the term of eight years from the time of the exchange of the ratifications.'

"In this shape, and with this modification the treaty was duly ratified by the President of the United States, and returned to the French government for its dissent or concurrence. Bonaparte, then First Consul, concurred in the modification made by the Senate, in the following language, and upon the condition therein expressed:

"'The government of the United States having added to its ratification that the convention should be in force for the space of eight years, and having omitted the second article, the government of the French Republic consents to accept, ratify, and confirm the above convention, with the addition, purporting that the convention shall be in force for the space of eight years, and with the retrenchment of the second article: Provided, That, by this retrenchment, the two States renounce the respective pretensions which are the object of the said article.'

"This ratification by the French Republic, thus qualified, was returned to the United States, and the treaty, with the respective conditional ratifications, was again submitted by the President of the United States to the Senate. That body 'resolved that they considered the said convention as fully ratified, and returned the same to the President for the usual promulgation;' whereupon he completed the ratification in the usual forms and by the usual publication.

"This, Mr. W. said, was the documentary history of this treaty and of its ratification, and here was the release of their claims relied upon by the claimants under the bill before the Senate. They contend that this second article of the treaty, as originally inserted by the negotiators, reserved their claims for future negotiation, and also reserved the subjects of disagreement under the treaties of amity and commerce, and of alliance, of 1778, and the consular convention of 1788; that the seventeenth article of the treaty of amity and commerce, and the eleventh article of the treaty of alliance, were particularly onerous upon the United States; that, to discharge the government from the onerous obligations imposed upon it in these two articles of the respective treaties, the Senate was induced to expunge the second article of the treaty of the 30th September above referred to, and, by consequence, to expunge the reservation of their claims as subjects of future negotiation between the two nations; that, in thus obtaining a discharge from the onerous obligations of these treaties, and especially of the two articles above designated, the United States was benefited to an amount beyond the whole value of the claims discharged, and that this benefit was the inducement to the expunging of the second article of the treaty, with a full knowledge that the act did discharge the claims, and create a legal and equitable obligation on the part of the government to pay them.

"These, Mr. W. said, he understood to be the assumptions of the claimants, and this their course of reasoning to arrive at the conclusion that the United States were liable to them for the amount of their claims. He must here raise a preliminary question, which he had satisfied himself would show which assumptions of the claimants to be wholly without foundation, so far as the idea of benefit to the United States was supposed to be derived from expunging this second article of the treaty of 1800. What, he 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 preceding 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 francs. 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 Vendemiaire, 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.

"2. Claims for embargoes.

"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. Livingston's list were embraced in № 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.

"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 upon 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.