Thirty Years' View (Vol. I of 2)

"The senator had also spoken in strong language as to that part of the report which related to the committee of exchange. He had said that a false issue had been presented – that the late Secretary of the Treasury (Mr. Taney) had never contended that the bank had no right to appoint a committee of exchange – that such a committee was appointed by all banks. In this last declaration the gentleman is correct. All banks have a committee to purchase exchange. But Mr. T. would admonish the gentleman to beware. He would find himself condemning him whom he wished to defend. Mr. Taney's very language is quoted in the report. He places the violation of the charter distinctly on the ground that the business of the bank is intrusted to three members on the exchange committee, when the charter requires that not less than seven shall constitute a board to do business. His very words are given in the report, so that he cannot be misunderstood; and the commentary of the committee consists in a mere narrative of facts. Little more is done than to give facts, and the honorable senator takes the alarm; and, in his effort to rescue the late Secretary from their influence, plunges him still deeper into difficulty.

"The senator had loudly talked of the committee having been made an instrument of, by the bank. For himself, he renounced the ascription. He would tell the honorable senator that he could not be made an instrument of by the bank, or by a still greater and more formidable power, the administration. He stood upon that floor to accomplish the purposes for which he was sent there. In the consciousness of his own honesty, he stood firm and erect. He would worship alone at the shrine of truth and of honor. It was a precious thing, in the eyes of some men, to bask in the sunshine of power. He rested only upon the support, which had never failed him, of the high and lofty feelings of his constituents. He would not be an instrument even in their hands, if it were possible for them to require it of him, to gratify an unrighteous motive."

CHAPTER CXVII.

FRENCH SPOLIATIONS BEFORE 1800

These claims had acquired an imposing aspect by this time. They were called "prior" to the year 1800; but how much prior was not shown, and they might reach back to the establishment of our independence. Their payment by the United States rested upon assumptions which constituted the basis of the demand, and on which the bill was framed. It assumed, first– That illegal seizures, detentions, captures, condemnations, and confiscations were made of the vessels and property of citizens of the United States before the period mentioned. Secondly– That these acts were committed by such orders and under such circumstances, as gave the sufferers a right to indemnity from the French government. Thirdly– That these claims had been annulled by the United States for public considerations. Fourthly– That this annulment gave these sufferers a just claim upon the United States for the amount of their losses. Upon these four assumptions the bill rested – some of them disputable in point of fact, and others in point of law. Of these latter was the assumption of the liability of the United States to become paymasters themselves in cases where failing, by war or negotiation, to obtain redress they make a treaty settlement, surrendering or abandoning claims. This is an assumption contrary to reason and law. Every nation is bound to give protection to the persons and property of their citizens; but the government is the judge of the measure and degree of that protection; and is not bound to treat for ever, or to fight for ever, to obtain such redress. After having done its best for the indemnity of some individuals, it is bound to consider what is due to the whole community – and to act accordingly; and the unredressed citizens have to put up with their losses if abandoned at the general settlement which, sooner or later, must terminate all national controversies. All this was well stated by Mr. Bibb, of Kentucky, in a speech on these French claims upon the bill of the present year. He said:

"He was well aware that the interests of individuals ought to be supported by their governments to a certain degree, but he did not think that governments were bound to push such interest to the extremity of war – he did not admit that the rights of the whole were to be jeoparded by the claims of individuals – the safety of the community was paramount to the claims of private citizens. He would proceed to see if the interests of our citizens had been neglected by this government. These claims have been urged from year to year, with all the earnestness and zeal due from the nation. But they went on from bad to worse, till negotiations were in vain. We then assumed a hostile position. During the year '98, more than twenty laws were passed by Congress upon this very subject – some for raising troops – some for providing arms and munitions of war – some for fitting out a naval force, and so on. Was this neglecting the claims of our citizens? We went as far as the interests of the nation would permit. We prosecuted these claims to the very verge of plunging into that dreadful war then desolating Europe. The government then issued its proclamation of neutrality and non-intercourse. Mr. B. next proceeded to show that France had no just claims upon us, arising from the guaranty. This guaranty against France was not considered binding, even by France herself, any further than was consistent with our relations with other nations; that it was so declared by her minister; and, moreover, that she acknowledged the justice of our neutrality. These treaties had been violated by France, and the United States could not surely be bound by treaties which she had herself violated; and consequently, we were under no obligation on account of the guaranty. Mr. B. went on to show that, by the terms of the treaty of 1800, the debts due to our citizens had not been relinquished: – that as the guaranty did not exist, and as the claims had not been abandoned, Mr. B. concluded that these claims ought not to be paid by this government. He was opposed to going back thirty-four years to sit in judgment on the constituted authorities of that time. There should be a stability in the government, and he was not disposed to question the judgment of the man (Washington) who has justly been called the first in war and the first in peace. We are sitting here to rejudge the decisions of the government thirty-four years since."

This is well stated, and the conclusion just and logical, that we ought not to go back thirty-four years to call in question the judgment of Washington's administration. He was looking to the latest date of the claims when he said thirty-four years, which surely was enough; but Washington's decision in his proclamation of neutrality was seven years before that time; and the claims themselves have the year 1800 for their period of limitation – not of commencement, which was many years before. This doctrine of governmental liability when abandoning the claims of citizens for which indemnity could not be obtained, is unknown in other countries, and was unknown in ours in the earlier ages of the government. There was a case of this abandonment in our early history which rested upon no "assumption" of fact, but on the fact itself; and in which no attempt was made to enforce the novel doctrine. It was the case of the slaves carried off by the British troops at the close of the Revolutionary War, and for which indemnity was stipulated in the treaty of peace. Great Britain refused that indemnity; and after vain efforts to obtain it by the Congress of the confederation, and afterwards under Washington's administration, this claim of indemnity, no longer resting upon a claim of the sufferers, but upon a treaty stipulation – upon an article in a treaty for their benefit – was abandoned to obtain a general advantage for the whole community in the commercial treaty with Great Britain. As these claims for French spoliations are still continued (1850), I give some of the speeches for and against them fifteen years ago, believing that they present the strength of the argument on both sides. The opening speech of Mr. Webster presented the case:

"He should content himself with stating very briefly an outline of the grounds on which these claims are supposed to rest, and then leave the subject to the consideration of the Senate. He, however, should be happy, in the course of the debate, to make such explanations as might be called for. It would be seen that the bill proposed to make satisfaction, to an amount not exceeding five millions of dollars, to such citizens of the United States, or their legal representatives, as had valid claims for indemnity on the French government, rising out of illegal captures, detentions, and condemnations, made or committed on their property prior to the 30th day of September, 1800. This bill supposed two or three leading propositions to be true.

"It supposed, in the first place, that illegal seizures, detentions, captures, condemnations, and confiscations, were made, of the vessels and property of the citizens of the United States, before the 30th September, 1800.

"It supposed, in the second place, that these acts of wrong were committed by such orders and under such circumstances, as that the sufferers had a just right and claim for indemnity from the hands of the government of France.

"Going on these two propositions, the bill assumed one other, and that was, that all such claims on France as came within a prescribed period, or down to a prescribed period, had been annulled by the United States, and that this gave them a right to claim indemnity from this government. It supposed a liability in justice, in fairness and equity, on the part of this government, to make the indemnity. These were the grounds on which the bill was framed. That there were many such confiscations no one doubted, and many such acts of wrong as were mentioned in the first section of the bill. That they were committed by Frenchmen, and under such circumstances as gave those who suffered wrong an unquestionable right to claim indemnity from the French government, nobody, he supposed, at this day, would question. There were two questions which might be made the subject of discussion, and two only occurred to him at that moment. The one was, 'On what ground was the government of the United States answerable to any extent for the injury done to these claimants?' The other, 'To what extent was the government in justice bound?' And first– of the first. 'Why was it that the government of the United States had become responsible in law or equity to its citizens, for the claims – for any indemnity for the wrongs committed on their commerce by the subjects of France before 1800?'

"To this question there was an answer, which, whether satisfactory or not, had at least the merit of being a very short one. It was, that, by a treaty between France and the United States, bearing date the 30th of September, 1800, in a political capacity, the government of the United States discharged and released the government of France from this indemnity. It went upon the ground, which was sustained by all the correspondence which had preceded the treaty of 1800, that the disputes arising between the two countries should be settled by a negotiation. And claims and pretensions having been asserted on either side, commissioners on the part of the United States were sent out to assert and maintain the claims of indemnity which they demanded; while commissioners appointed on the part of France asserted a claim to the full extent of the stipulations made in '78, which they said the United States had promised to fulfil, and in order to carry into effect the treaty of alliance of the same date, viz.: February, 1778.

"The negotiation ultimately terminated, and a treaty was finally ratified upon the terms and conditions of an offset of the respective claims against each other, and for ever; so that the United States government, by the surrender and discharge of these claims of its citizens, had made this surrender to the French government to obtain for itself a discharge from the onerous liabilities imposed upon them by the treaty of 1778, and in order to escape from fulfilling other stipulations proclaimed in the treaty of commerce of that year, and which, if not fulfilled, might have brought about a war with France. This was the ground on which these claims rested.

"Heretofore, when the subject had been before Congress, gentlemen had taken this view of the case; and he believed there was a report presented to the Senate at the time, which set forth that the claims of our citizens, being left open, the United States had done these claimants no injury, and that it did not exempt the government of France from liability."

Mr. Wright, of New-York, spoke fully against the bill, and upon a close view of all the facts of the case and all the law of the case as growing out of treaties or found in the law of nations. His speech was not only a masterly argument, but an historical monument, going back to the first treaty with France in 1778, and coming down through our legislation and diplomacy on French questions to the time of its delivery. A separate chapter is due to this great speech; and it will be given entire in the next one.

CHAPTER CXVIII.

FRENCH SPOLIATIONS: SPEECH OF MR. WRIGHT, OF NEW-YORK

"Mr. Wright understood the friends of this bill to put its merits upon the single and distinct ground that the government of the United States had released France from the payment of the claims for a consideration, passing directly to the benefit of our government, and fully equal in value to the claims themselves. Mr. W. said he should argue the several questions presented, upon the supposition that this was the extent to which the friends of the bill had gone, or were disposed to go, in claiming a liability on the part of the United States to pay the claimants; and, thus understood, he was ready to proceed to an examination of the strength of this position.

"His first duty, then, was to examine the relations existing between France and the United States prior to the commencement of the disturbances out of which these claims have arisen; and the discharge of this duty would compel a dry and uninteresting reference to the several treaties which, at that period, governed those relations.

"The seventeenth article of the treaty of amity and commerce of the 6th February, 1778, was the first of these references, and that article was in the following words:

"'Art. 17. It shall be lawful for the ships of war of either party, and privateers, freely to carry whithersoever they please the ships and goods taken from their enemies, without being obliged to pay any duty to the officers of the admiralty or any other judges; nor shall such prizes be arrested or seized when they come to or enter the ports of either party; nor shall the searchers or other officers of those places search the same, or make examination concerning the lawfulness of such prizes; but they may hoist sail at any time and depart and carry their prizes to the places expressed in their commissions, which the commanders of such ships of war shall be obliged to show; on the contrary, no shelter or refuge shall be given in their ports to such as shall have made prize of the subjects, people, or property of either of the parties; but if such shall come in, being forced by stress of weather, or the danger of the sea, all proper means shall be vigorously used, that they go out and retire from thence as soon as possible.'

"This article, Mr. W. said, would be found to be one of the most material of all the stipulations between the two nations, in an examination of the diplomatic correspondence during the whole period of the disturbances, from the breaking out of the war between France and England, in 1793, until the treaty of the 30th September, 1800. The privileges claimed by France, and the exclusions she insisted on as applicable to the other belligerent Powers, were fruitful sources of complaint on both sides, and constituted many material points of disagreement between the two nations through this entire interval. What these claims were on the part of France, and how far they were admitted by the United States, and how far controverted, will, Mr. W. said, be more properly considered in another part of the argument. As connected, however, with this branch of the relations, he thought it necessary to refer to the twenty-second article of the same treaty, which was in the following words:

"'Art. 22. It shall not be lawful for any foreign privateers, not belonging to subjects of the Most Christian King, nor citizens of the said United States, who have commissions from any other prince or State in enmity with either nation, to fit their ships in the ports of either the one or the other of the aforesaid parties, to sell what they have taken, or in any other manner whatsoever to exchange their ships, merchandises, or any other lading; neither shall they be allowed even to purchase victuals, except such as shall be necessary for their going to the next port of that prince or State from which they have commissions.'

"Mr. W. said he now passed to a different branch of the relations between the two countries, as established by this treaty of amity and commerce, which was the reciprocal right of either to carry on a free trade with the enemies of the other, restricted only by the stipulations of the same treaty in relation to articles to be considered contraband of war. This reciprocal right is defined in the twenty-third article of the treaty, which is in the words following:

"'Art. 23. It shall be lawful for all and singular the subjects of the Most Christian King, and the citizens, people, and inhabitants of the said United States, to sail with their ships with all manner of liberty and security, no distinction being made who are the proprietors of the merchandises laden thereon, from any port to the places of those who now are or hereafter shall be at enmity with the Most Christian King, or the United States. It shall likewise be lawful for the subjects and inhabitants aforesaid to sail with the ships and merchandises aforementioned, and to trade with the same liberty and security from the places, ports, and havens of those who are enemies of both or either party, without any opposition or disturbance whatsoever, not only directly from the places of the enemy aforementioned to neutral places, but also from one place belonging to an enemy to another place belonging to an enemy, whether they be under the jurisdiction of the same prince, or under several. And it is hereby stipulated that free ships shall also give a freedom to goods, and that every thing shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading, or any part thereof, should appertain to the enemies of either, contraband goods being always excepted. It is also agreed, in like manner, that the same liberty be extended to persons who are on board a free ship, with this effect, that although they be enemies to both or either party, they are not to be taken out of that free ship, unless they are soldiers and in actual service of the enemies.'

"The restrictions as to articles to be held between the two nations as contraband of war, Mr. W. said, were to be found in the twenty-fourth article of this same treaty of amity and commerce, and were as follows:

"'Art. 24. This liberty of navigation and commerce shall extend to all kinds of merchandises, excepting those only which are distinguished by the name of contraband, and under this name of contraband, or prohibited goods, shall be comprehended arms, great guns, bombs, with fuses and other things belonging to them, cannon ball, gunpowder, match, pikes, swords, lances, spears, halberds, mortars, petards, grenades, saltpetre, muskets, musket ball, helmets, breastplates, coats of mail, and the like kinds of arms proper for arming soldiers, musket rests, belts, horses with their furniture, and all other warlike instruments whatever. These merchandises which follow shall not be reckoned among contraband or prohibited goods; that is to say, all sorts of cloths, and all other manufactures woven of any wool, flax, silk, cotton, or any other material whatever; all kinds of wearing apparel, together with the species whereof they are used to be made; gold and silver, as well coined as uncoined: tin, iron, latten, copper, brass, coals; as also wheat and barley, and any other kind of corn and pulse: tobacco, and likewise all manner of spices; salted and smoked flesh, salted fish, cheese, and butter, beer, oils, wines, sugars, and all sorts of salts; and, in general, all provisions which serve for the nourishment of mankind, and the sustenance of life; furthermore, all kinds of cotton, hemp, flax, tar, pitch, ropes, cables, sails, sail cloths, anchors, and any part of anchors, also ships' masts, planks, boards, and beams, of what trees soever; and all other things proper either for building or repairing ships, and all other goods whatever which have not been worked into the form of any instrument or thing prepared for war by land or by sea, shall not be reputed contraband, much less such as have been already wrought and made up for any other use; all which shall be wholly reckoned among free goods; as likewise all other merchandises and things which are not comprehended and particularly mentioned in the foregoing enumeration of contraband goods, so that they may be transported and carried in the freest manner by the subjects of both confederates, even to the places belonging to an enemy, such towns or places being only excepted as are at that time besieged, blocked up, or invested.'

"Mr. W. said this closed his references to this treaty, with the remark, which he wished carefully borne in mind, that the accepted public law was greatly departed from in this last article. Provisions, in their broadest sense, materials for ships, rigging for ships, and indeed almost all the articles of trade mentioned in the long exception in the article of the treaty, were articles contraband of war by the law of nations. This article, therefore, placed our commerce with France upon a footing widely different, in case of a war between France and any third power, from the rules which would regulate that commerce with the other belligerent, with whom we might not have a similar commercial treaty. Such was its effect as compared with our relations with England, with which power we had no commercial treaty whatever, but depended upon the law of nations as our commercial rule and standard of intercourse.

"Mr. W. said he now passed to the treaty of alliance between France and the United States, of the same date with the treaty of amity and commerce before referred to, and his first reference was to the 11th article of this latter treaty. It was in the following words:

"'Art. 11. The two parties guarantee mutually from the present time, and for ever, against all other powers, to wit: The United States to His Most Christian Majesty the present possessions of the Crown of France in America, as well as those which it may acquire by the future treaty of peace: And His Most Christian Majesty guarantees on his part to the United States, their liberty, sovereignty, and independence, absolute and unlimited, as well in matters of government as commerce, and also their possessions, and the additions or conquests that their confederation may obtain during the war, from any of the dominions now or heretofore possessed by Great Britain in North America, conformable to the fifth and sixth articles above written, the whole as their possessions shall be fixed and assured to the said States at the moment of the cessation of their present war with England.'

"This article, Mr. W. said, was the most important reference he had made, or could make, so far as the claims provided for by this bill were concerned, because he understood the friends of the bill to derive the principal consideration to the United States, which created their liability to pay the claims, from the guaranty on the part of the United States contained in it. The Senate would see that the article was a mutual and reciprocal guaranty, 1st. On the part of the United States to France, of her possessions in America; and 2d. On the part of France to the United States, of their 'liberty, sovereignity, and independence, absolute and unlimited, as well in matters of government as commerce, and also their possessions,' &c.; and that the respective guarantees were 'for ever.' It would by-and-by appear in what manner this guaranty on the part of our government was claimed to be the foundation for this pecuniary responsibility for millions, but at present he must complete his references to the treaties which formed the law between the two nations, and the rule of their relations to and with each other. He had but one more article to read, and that was important only as it went to define the one last cited. This was the 12th article of the treaty of alliance, and was as follows: