SENATE.]

French Spoliations prior to 1800.

[JANUARY, 1835.

judicial question, to be decided by the effect | Government is bound to come to the assistance of treaties and the general law of nations.

of its citizens in seeking retribution for inThat private property shall not be taken,juries, if denied by the aggressor. nor applied to public use, without just compensation, is a principle of equity ingrafted into our constitution; not made by it, but expressly recognized, because it was pre-existing, universal, and immutable.

The property proposed to be compensated by this bill was not taken by the Government of the United States, but by the Government of France and French citizens, against the consent of the United States, in violation as well of the law of nations as of treaties then subsisting between the United States and France. They commenced in 1793, and run to the 30th of September, 1800.

The argument is, that the United States have applied these claims of American citizens to their use, in exchange for indemnities due by the United States to France, on account of the supposed breach committed by the United States of the guarantee of the French West India possessions, contained in their treaty of alliance of the fifth of February, 1778, and for a release of that guaranty. To maintain that argument, the treaty of amity and commerce between the United States and France of the 6th of February, 1778, the treaty of alliance of the same date, and the consular convention of the 14th of November, 1788, are relied on as having been subsisting and undischarged obligations on the United States at the making of the treaty of the 30th September, 1800: moreover, that a casus fœderis, provided for in the treaty of alliance, had occurred; that the United States had not kept their stipulation to guarantee the French possession of the West India islands; and to purchase their release from France for that past breach, and from the obligation of the guaranty in future, they had released to France the claims of the American citizens.

These releases are supposed to have been wrought by the united effects of these causes -the act of the Senate in expunging the second article of the treaty of 1800; the assent of France to that retrenchment, with the declaration "provided that by this retrenchment the two States renounce the respective pretensions which are the object of the said article; and the acceptance of such ratification from France by the treaty-making power of the United States.

If that guaranty was a subsisting obligation at the signature of the treaty of 1800, and if the United States have purchased their release from the guaranty, or from indemnities due to France for a past breach of that guaranty, in consideration of the claims of American citizens on France, then indeed compensation is due to such citizens.

Government ought to protect its citizens in their lawful pursuits against the aggressions of foreign powers, if such acts be committed against the law of nations or of treaties. The

But these rights of the citizens to protection, and this duty of the Government to aid and assist in seeking retribution, is circumscribed and held in subjection to the general welfare. The Government ought to prosecute the claims of its citizens upon a foreign Government with diligence and good faith. The citizens have a right to expect that their claims to compensa tion shall not be injured by any ill conduct of their own Government. But no citizen has the right to demand that his claim upon a foreign Government shall be pushed by his own Government to the extremity of war, much less to a war which is inconsistent with the general weal, and may endanger the national existence and independence. Such are the limitations, without dissent, promul gated by those eminent writers who have treated of the law of nature and of nations, as a system of morality, jurisprudence, and politics.

Under a most solemn impression of the high obligation imposed by the Constitution of the United States to protect our foreign commerce, as being one among the leading inducements to its adoption; and under a full persuasion that an established character of Government for the observance of justice and good faith is above all price, (for such a character can com mand the surplus wealth of its citizens and of the world,) I proceed to examine the conduct of the Government of the United States relative to the claims now brought up for compensation.

When President Washington issued his proclamation of neutrality of the 22d of April, 1793, a state of war existed between Austria, Prussia, Sardinia, the United Netherlands, and Great Britain, of the one part, and France on the other. That man, justly styled "first in war, first in peace, and first in the hearts of his countrymen," took this position for his country after a mature deliberation, aided by the counsel of those eminent statesmen and jurists who stood responsible to him and to the people for the fidelity of their counsels. Mr. Jefferson, then Secretary of State, Mr. Hamilton, the Secretary of the Treasury, and Mr. Edmund Randolph, the Attorney-General, were of the number of those distinguished citizens to whose researches and discussions President Washing ton had recourse, on questions of great public concern, to assist his own unrivalled judgment in coming to a just conclusion. After mature deliberation upon the then existing state of things, as the Senator from Missouri (Mr. BENTON) has well demonstrated, President Washington adopted and pursued the enlight ened policy of observing a strict neutrality, cultivating the friendship of all, and observing existing treaties with good faith. He deter mined that the United States were of right to be respected as a neutral in that war.

JANUARY, 1835.]

French Spoliations prior to 1800.

[SENATE.

watching over the welfare of that generation, and they did so decide. That decision was thenceforth sustained and acted upon by both Houses of Congress during President Washington's and President Adams' administrations, down to the final ratification of the treaty of the 30th of November, 1800.

His proclamation, with his instructions to the collectors, were alluded to in his speech to both Houses of Congress on the 3d December, 1793, at the opening of their ensuing session, and were laid before them. The addresses of the Senate and of the House of Representatives, respectively, in answer, express for each House their hearty approbation. The Senate said: The views and policies of the French Repub"As the European Powers with whom the United lic, as declared by her accredited minister, States have the most extensive relations, are involved corresponded with that of the United States in in war, in which we had taken no part, it seemed respect to the neutrality of the United States. necessary that the disposition of the nation for The communication of citizen Genet, the minispeace should be promulgated to the world, as well ter of France, of the 23d May, 1793, to Mr. for the purpose of admonishing our citizens of the Jefferson, Secretary of State, so far from claimconsequence of a contraband trade, and of acts hos- ing from the United States an abandonment of tile to any of the belligerent parties, as to obtain, by their neutrality, announces the desire of France a declaration of the existing legal state of things, an "to increase the prosperity and add to the hapeasier admission of our right to the immunities of piness which she is pleased to see them enjoy." our situation: we therefore contemplate with pleas-The obstacles raised with intentions hostile ure the proclamation by you issued, and give it our to liberty, by the perfidious ministers of despothearty approbation. We deem it a measure well-ism, whose object was to stop the rapid progress

timed and wise.

The address of the House of Representatives is equally explicit in the expressions of their "approbation and pleasure "at witnessing the proclamation. They commend it as an act of proper vigilance to guard against an interruption of the blessings of peace, and as promoting "by a declaration of the existing legal state of things, an easier admission of our right to the immunities belonging to our situation."

The neutrality of the United States, upon the breaking out of the war between France and the powers of Europe, was that "legal state of things."

In the speech of President Washington to both Houses of Congress, on the 19th November, 1794, after alluding to our intercourse with foreign nations, and to circumstances which would be transmitted, he proceeds:

"However, it may not be unreasonable to announce that my policy, in our foreign transactions, has been to cultivate peace with all the world; to observe treaties with pure and absolute faith; check every deviation from the line of impartiality," &c.

to

The Senate and the House of Representatives again approved the policy pursued towards foreign powers. The Senate's address concludes thus: "At a period so momentous in the affairs of nations, the temperate, just, and firm policy, that you have pursued in respect to foreign powers, has been eminently calculated to promote the great and essential interests of our country, and has created the fairest title to the public gratitude and thanks."

Such were the decisions of the executive and legislative councils of the United States upon "the then existing legal state of things." The right and the duty of the United States to be neutral, and to demand and insist upon the immunities of our situation as a neutral nation, is most emphatically pronounced by those whose powers and duties devolved upon them the high trust of maintaining the national faith, and

of the commerce of the Americans, and the extension of their principles, exist no more. The French Republic, seeing in them but brothers, has opened to them, by the decrees now enclosed, all her ports in the two worlds; has granted them all the favors which her own citizens enjoy in her vast possessions; invited them to participate the benefits of the navigation, in granting to their vessels the same rights as to her own," and professed himself authorized to enter into a new compact.

In the progress of the discussions between the two Governments, the minister of the United States pressed the great advantages which France derived from the neutrality of the United States, in receiving supplies and carrying on her commerce. France was fully sensible of these advantages. She saw that her West India possessions could be more effectually supplied with provisions, and her goods in neutral bottoms more advantageously secured from the captures of her enemy, and her own vessels of war and private armed vessels as well as her merchantmen more conveniently sheltered and accommodated in the ports of the United States, as neutral, than as belligerent. The guaranty was never a subject of demand, or of complaint, or of indemnity. In the instructions of Mr. Randolph, Secretary of State, to Mr. Monroe, plenipotentiary to France, of the 10th June, 1794, the Secretary says: "From Mr. Genet and Fauchet we have uniformly learned that France did not desire us to depart from the neutrality, and it would have been unwise to have asked us to do otherwise: for our ports are open to her prizes while they are shut to those of Great Britain; and supplies of grain could not be furnished to France with so much certainty, were we at war, as they can even now, notwithstanding the British instructions."

As late as the 11th of March, 1796, the Minister of Foreign Affairs, Ch. de la Croix, addressed to our minister in France a summary exposition of the complaints of the French Republic against the United States. The sub

ject of the guarantee forms no part of that statement.

(JANUARY, 1835.

Britain, ours with France was annihilated."*

On the 7th July, 1798, an act was passed by the Congress of the United States, and approved by the President, entitled "An act to declare the treaties heretofore concluded with France no longer obligatory on the United States." [Here Mr. B. read that act, in the following words :]

"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

The complaints of the United States against France commenced in a decree of the 9th of May, 1793-in violation of the treaty of amity and commerce of 1778-which decree authorized French ships of war and privateers to stop and bring into the ports of the Republic neutral vessels laden with provisions belonging to neutrals, destined for enemy ports, or with merchandise belonging to enemies. Merchandise belonging to enemies to be good prize and confiscated for the benefit of the captors-the provisions belonging to neutrals to be paid for. Citizen Genet, the minister of France, granted military commissions to American citizens in the ports of the United States, armed and equip-repelled with indignity: and whereas, under author ped vessels in our ports to cruise against nations at peace with the United States; exercised admiralty and maritime jurisdiction in condemning captured vessels brought into the ports of the United States-he threatened to appeal from the President to the people, and otherwise so dis-of Representatives of the United States of America in Congress assembled, That the United States are of respected the jurisdiction and authorities of the right free and exonerated from the stipulations of United States as to produce his recall by the the treaties, and of the consular convention, here French Republic at the request of the President. tofore concluded between the United States and Without going into a tedious detail of French France; and that the same shall not henceforth be aggressions, it is sufficient for the present pur- regarded as legally obligatory on the Government pose to allude to the claims of American citizens and citizens of the United States." as classified by our minister in France in 1794; and again as reported in 1797, in obedience to a resolution of the Senate, and communicated by the Secretary of State, Mr. Pickering, on the 28th February, 1798.

1st. Captures sanctioned by the decree of 1793, before stated.

2d. Condemnations of vessels and cargoes under marine ordinances of France, contrary to the treaties between the two countries.

3d. Spoilations and captures of American vessels at sea by French ships of war and privateers.

4th. For the detention of American vessels by the same embargo at Bordeaux.

5th. Seizure and forced sales of cargoes, and applying them to public use, without payment, or without adequate payments.

6th. Non-performance of contracts made by the agents of the Government for supplies.

7th. Non-payment of bills drawn, and debts contracted, by the agents of the Government in the West Indies.

ity 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:

"Sec. 1. Be it enacted by the Senate and House

The facts recited in that act, of repeated infractions on the part of the French Government, refusal of demanded reparation, the indignities offered to our ministers authorized to negotiate, and of predatory violence, were notorious at that day, and are fully sustained by the diplomatic correspondence, from 1793 down to that time.

Connected with this state of our foreign af fairs, about thirty acts were passed.

[Here Mr. BIBB read the title and stated the object of each act.]

By force of these laws of the United States, and the decrees of France, the armed vessels of the United States were brought into collision with the armed vessels of France, both public and private. Hard-fought battles ensued. Pub lic and private vessels were subdued, seized, libelled, and condemned as lawful prize to the captors; about eighty armed vessels of France were taken. A naval warfare was waged.

But it is said it did not have the effect of abrogating pre-existing treaties, or cancelling pre-existing claims for retributions or indemnities; because it was not a general war; be cause no war was declared; because the armaments and enactions on the part of the United States professed to be defensive, for the protec tion of the commerce of the United States. Yet it is true that this was war in fact; war after repeated demands and refusals of retributions for past injuries; after the refusal of France to receive our special envoy and minis

The depredations at sea by the public and private armed vessels were continued under the sanction of the decrees of the French Directory; and it appears by the letter of Mr. Monroe, our minister at Paris, of the 16th of February, 1796, to Mr. Pickering, the Secretary of State, our Government was informed that the French Minister of Foreign Affairs had announced to him that the Directory of France considered the alliance as ceasing to exist from the moment our treaty of 1794, with Great Britain, was ratified. And on the 20th of February, 1796, the same minister again repeated to our minister, that, by the treaty of 1794 with Great 1, pp. 780, 731.

See American State Papers, by Gales and Seaton, vol

French Spoliations prior to 1800.

ter plenipotentiary, Mr. Charles C. Pinckney, | quence of war, but to impress more emphatically clothed with full powers to treat of all com- the posture of the two countries at the time the plaints on either side, after the commercial treaty of 1800 was negotiated. intercourse between the two countries had been interdicted by the United States; after the Minister of Foreign Affairs of France had announced to our minister at Paris, that the French Directory considered the treaty between the United States and France "as ceasing to exist," as "annihilated; " after the subsequent aggressions of France corresponded with that annunciation; and after the act of the Congress of the United States of the 7th of July, 1798, had declared the treaties theretofore concluded with France no longer obligatory on the United States.

[JANUARY, 1835. war, enabled them to assume a position of strict and unqualified neutrality.

of the treaty of 1800, it seems to me that the duty of endeavoring to protect the commerce of the Union; of asserting the rights, public This quasi war had given rise to direct taxes, and individual, and maintaining them against excises, and loans, to increased armies and naforeign powers, were duly respected and ob- vies. The whole community were made to bear served. The means of fulfilling that duty were large contributions to maintain our neutral prudently selected, diligently prosecuted, and rights, including redress for injuries which are faithfully conducted. If those means did not the objects of this bill. Having done so much, command the full measure of protection and the obligations of duty and regard for the priindemnity for injuries inflicted by foreign pow-vate rights of our citizens involved in those ers, the fault is not with our Government. Our measures were fulfilled. Individual rights and negotiations were conducted with very great interests are held in subjection to the common ability. Our military and naval establishments good. No citizen has the right to require his were increased, munitions of war were provid-Government to prosecute his claims upon a ed, the physical powers of the country were put foreign Government to open war. That is a in requisition, and the sinews of war were pro- question of policy and regard for the general vided. If our rights were not completely and welfare. The extremities of the commonwealth fully protected, if full compensation to our citi- are unanswerable exceptions to all sorts of prizens for wrongs committed was not obtained, vate rights and privileges. It is a contradiction the failure must be attributed to the peculiar to pretend to be a citizen under the protection temper of the times, to the gigantic struggles of a Government, and yet to claim a right and peculiar character and desolations of this wholly inconsistent with the common safety. wide-spread warfare. If the efforts of the Whatever losses these claimants have susAmerican Government did not obtain success, tained, they flow from the injuries inflicted by they deserved it. If our negotiators, strength- a foreign Government. The principles of moral ened by our preparations by sea and land, by jurisprudence and politics make a distinction non-intercourse, by the maritime war, by the between the rights of a citizen when his properthunders of our cannon, with the capture of ty is taken by his own, and when taken by a eighty-three French armed vessels, could not foreign Government. In the first case, the citicompel France to terms satisfactory, in all re- zen has a perfect right to demand, and have, of spects, to our desires, there is no just cause of his own Government, compensation for the loss; complaint against our Government as having and this obligation subsists until payment is done too little; the public sentiment of that made. Nor is the State acquit by present inaday was, the Government had done too much.bility; whenever she possesses the means, the The United States had proceeded so far in prosecution of satisfaction for these claims, and for protecting our maritime rights, that a single advance beyond would have plunged them into the open and general war then raging upon the European continent and upon the ocean. All Europe was convulsed; republican France, with gigantic strength, invigorated by a devotion to liberty, was contending with the coalition of the most formidable powers and potentates. In this mighty warfare ancient laws and usages respecting the rights of neutrals were disregarded by the belligerents: new principles of maritime law were proclaimed. Great Britain and France each made war upon the rights of neutrals, for the purpose of weaken- When we consider the conduct of the Goving the resources of the adversary; even pro- ernment from 1793 down to the ratification of visions, belonging to neutrals, on board of neu- the treaty of 1800-the condition of the United tral vessels, were treated as articles contraband States, (not then recovered from the exhaustion of war, under a pretence of starving thirty of the Revolution,) the assiduity and good faith millions of Frenchmen into submission. The with which these claims were pressed upon the duration and issue of the war was then beyond consideration of the French Government, the the ken of mortals. It only terminated with want of success, the cause of that quasi war, the battle of Waterloo. The soundest policy, the great expenditures of the Government, the the best interests of the United States, public dangers of being drawn into the vortex of the sentiment, forbid them from proceeding to an European war as a belligerent, the great losses open and general war, which would have en- to flow from the community from persisting, dangered even our Union and independence. and the prospect then presented to the view of The councils of the United States preferred the that generation-we may well conclude that treaty of 1800 to the hazards of the war, and the Government would have been well justified ratified it, which, putting an end to the quasi | in abandoning these claims for the purpose of

claim must be respected and paid. But for damages caused by a foreign Power, no right accrues to the citizen to demand and have compensation from his own Government. In such case the sovereign ought to interpose, as far as the situation of affairs, and the common interests and safety will permit, to aid the citizen in demanding and receiving satisfaction from such foreign Power. The Government ought to show an equitable regard for such suffering of the citizen; but the extent to which that regard shall be indulged is a question of sound policy, to be judged by the State. The right of the citizen in this behalf, belongs to the class of imperfect obligations.