Chapter CXVIII (1)

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:

"'_Art._ 12. In order to fix more precisely the sense and
application of the preceding article, the contracting parties
declare that, in case of a rupture between France and England,
the reciprocal guaranty declared in the said article shall have
its full force and effect the moment such war shall break out;
and if such rupture shall not take place, the mutual obligations
of the said guaranty shall not commence until the moment of
the cessation of the present war between the United States and
England shall have ascertained their possessions.'

"These, said Mr. W., are the treaty stipulations between France
and the United States, existing at the time of the commencement
of the disturbances between the two countries, which gave rise
to the claims now the subject of consideration, and which seem
to bear most materially upon the points in issue. There were
other provisions in the treaties between the two governments
more or less applicable to the present discussion, but, in the
course he had marked out for himself, a reference to them was
not indispensable, and he was not disposed to occupy the time
or weary the patience of the Senate with more of these dry
documentary quotations than he found absolutely essential to
a full and clear understanding of the points he proposed to
examine.

"Mr. W. said he was now ready to present the origin of the
claims which formed the subject of the bill. The war between
France and England broke out, according to his recollection,
late in the year 1792, or early in the year 1793, and the
United States resolved upon preserving the same neutral
position between those belligerents, which they had assumed at
the commencement of the war between France and certain other
European powers. This neutrality on the part of the United
States seemed to be acceptable to the then French Republic, and
her minister in the United States and her diplomatic agents at
home were free and distinct in their expressions to this effect.

"Still that Republic made broad claims under the 17th article of
the treaty of amity and commerce before quoted, and her minister
here assumed the right to purchase ships, arm them as privateers
in our ports, commission officers for them, enlist our own
citizens to man them and, thus prepared, to send them from our
ports to cruise against English vessels upon our coast. Many
prizes were made, which were brought into our ports, submitted
to the admiralty jurisdiction conferred by the French Republic
upon her consuls in the United States, condemned, and the
captured vessels and cargoes exposed for sale in our markets.
These practices were immediately and earnestly complained of by
the British government as violations of the neutrality which
our government had declared, and which we assumed to maintain
in regard to all the belligerents, as favors granted to one of
the belligerents, not demandable of right under our treaties
with France, and as wholly inconsistent, according to the rules
of international law, with our continuance as a neutral power.
Our government so far yielded to these complaints as to prohibit
the French from fitting out, arming, equipping, or commissioning
privateers in our ports, and from enlisting our citizens to bear
arms under the French flag.

"This decision of the rights of France, under the treaty of
amity and commerce, produced warm remonstrances from her
minister in the United States, but was finally ostensibly
acquiesced in by the Republic, although constant complaints
of evasions and violations of the rule continued to harass
our government, and to occupy the attention of the respective
diplomatists.

"The exclusive privilege of our ports for her armed vessels,
privateers, and their prizes, granted to France by the treaty
of amity and commerce, as has before been seen, excited the
jealousy of England, and she was not slow in sending a portion
of her vast navy to line our coast and block up our ports and
harbors. The insolence of power induced some of her armed
vessels to enter our ports, and to remain, in violation of our
treaty with France, though not by the consent of our government,
or when we had the power to enforce the treaty by their
ejection. These incidents, however, did not fail to form the
subject of new charges from the French ministers, of bad faith
on our part, of partiality to England to the prejudice of our
old and faithful ally, of permitted violations of the treaties,
and of an inefficiency and want of zeal in the performance of
our duties as neutrals. To give point to these complaints,
some few instances occurred in which British vessels brought
their prizes into our ports, whether in all cases under those
casualties of stress of weather, or the dangers of the sea,
which rendered the act in conformity with the treaties and the
law of nations or not, is not perhaps very certain or very
material, inasmuch as the spirit of complaint seems to have
taken possession of the French negotiators, and these acts gave
colorable ground to their remonstrances.

"Contemporaneously with these grounds of misunderstanding and
these collisions of interest between the belligerents, and
between the interests of either of them and the preservation of
our neutrality, the French began to discover the disadvantages
to them, and the great advantages to the British, of the
different rules which governed the commerce between the two
nations and the United States. The rule between us and France
was the commercial treaty of which the articles above quoted
form a part, and the rule between us and Great Britain, was that
laid down by the law of nations. Mr. W. said he would detain
the Senate to point out but two of the differences between
these rules of commerce and intercourse, because upon these
two principally depended the difficulties which followed. The
first was, that, by the treaty between us and France, 'free
ships shall also give a freedom to the goods; and 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 enemy of either, contraband goods being
always excepted;' while the law of nations, which was the rule
between us and England, made the goods of an enemy a lawful
prize, though found in the vessel of a friend. Hence it followed
that French property on board of an American vessel was subject
to capture by British cruisers without indignity to our flag,
or a violation to international law, while British property on
board of an American vessel could not be captured by a French
vessel without an insult to the flag of the United States, and
a direct violation of the twenty-third article of the treaty of
amity and commerce between us and France, before referred to.

"Mr. W. said the second instance of disadvantage to France which
he proposed to mention, was the great difference between the
articles made contraband of war by the twenty-fourth article of
the treaty of amity and commerce, before read to the Senate, and
by the law of nations. By the treaty, provisions of all kinds,
ship timber, ship tackle (guns only excepted), and a large list
of other articles of trade and commerce, were declared not to be
contraband of war, while the same articles are expressly made
contraband by the law of nations. Hence an American vessel,
clearing for a French port with a cargo of provisions or ship
stores, was lawful prize to a British cruiser, as, by the law
of nations, carrying articles contraband of war to an enemy,
while the same vessel, clearing for a British port, with the
same cargo, could not be captured by a French vessel, because
the treaty declared that the articles composing the cargo
should not be contraband as between the United States and
France. Mr. W. said the Senate would see, at a single glance,
how eminently these two advantages on the part of Great Britain
were calculated to turn our commerce to her ports, where, if the
treaty between us and France was observed, our vessels could
go in perfect safety, while, laden with provisions, our only
considerable export, and destined for a French port, they were
liable to capture, as carrying to an enemy contraband articles.
Upon their return, too, they were equally out of danger from
French cruisers, as, by the treaty, free ships made free the
goods on board; while, if they cleared from a port in France
with a French cargo, they were lawful prize to the British, upon
the principle of the law of nations, that the goods of an enemy
are lawful prize, even when found in the vessel of a friend.

"Both nations were in constant and urgent want of provisions
from the United States; and this double advantage to England
of having her ports open and free to our vessels, and of
possessing the right to capture those bound to French ports,
exasperated the French Republic beyond endurance. Her ministers
remonstrated with our government, controverted our construction
of British rights, again renewed the accusations of partiality,
and finally threw off the obligations of the treaty; and, by
a solemn decree of their authorities at home, established the
rule which governed the practice of the British cruisers.
France, assuming to believe that the United States permitted the
neutrality of her flag to be violated by the British, without
resistance, declared that she would treat the flag of all
neutral vessels as that flag should permit itself to be treated
by the other belligerents. This opened our commerce to the
almost indiscriminate plunder and depredation of all the powers
at war, and but for the want of the provisions of the United
States, which was too strongly felt both in England and France
not to govern, in a great degree, the policy of the two nations,
it would seem probable, from the documentary history of the
period, that it must have been swept from the ocean. Impelled by
this want, however, the British adopted the rule, at an early
day, that the provisions captured, although in a strict legal
sense forfeited, as being by the law of nations contraband,
should not be confiscated, but carried into English ports, and
paid for, at the market price of the same provisions, at the
port of their destination. The same want compelled the French,
when they came to the conclusion to lay aside the obligations
of the treaty, and to govern themselves, not by solemn compacts
with friendly powers, but by the standards of wrong adopted
by their enemies, to adopt also the same rule, and instead of
confiscating the cargo as contraband of war, if provisions, to
decree a compensation graduated by the market value at the port
of destination.

"Such, said Mr. W., is a succinct view of the disturbances
between France and the United States, and between France and
Great Britain, out of which grew what are now called the French
claims for spoliations upon our commerce, prior to the 30th of
September, 1800. Other subjects of difference might have had
a remote influence; but, Mr. W. said, he believed it would be
admitted by all, that those he had named were the principal,
and might be assumed as having given rise to the commercial
irregularities in which the claims commenced. This state of
things, without material change, continued until the year 1798,
when our government adopted a course of measures intended to
suspend our intercourse with France, until she should be brought
to respect our rights. These measures were persevered in by the
United States, up to September, 1800, and were terminated by the
treaty between the two nations of the 30th of that month. Here,
too, terminated claims which now occupy the attention of the
Senate.

"As it was the object of the claimants to show a liability, on
the part of our government, to pay their claims, and the bill
under discussion assumed that liability, and provided, in part
at least, for the payment, Mr. W. said it became his duty to
inquire what the government had done to obtain indemnity for
these claimants from France, and to see whether negligence
on its part had furnished equitable or legal ground for the
institution of this large claim upon the national treasury.
The period of time covered by the claims, as he understood the
subject, was from the breaking out of the war between France and
England, in 1793, to the signing of the treaty between France
and the United States, in September, 1800; and he would consider
the efforts the government had made to obtain indemnity:

"1st. From 1793 to 1798.

"2d. From 1798 to the treaty of the 30th September, 1800.

"During the first period, Mr. W. said, these efforts were
confined to negotiation, and he felt safe in the assertion
that, during no equal period in the history of our government,
could there be found such untiring and unremitted exertions
to obtain justice for citizens who had been injured in their
properties by the unlawful acts of a foreign power. Any one who
would read the mass of diplomatic correspondence between this
government and France, from 1793 to 1798, and who would mark
the frequent and extraordinary missions, bearing constantly in
mind that the recovery of these claims was the only ground upon
our part for the whole negotiation, would find it difficult to
say where negligence towards the rights and interests of its
citizens is imputable to the government of the United States,
during this period. He was not aware that such an imputation
had been or would be made; but sure he was that it could not be
made with justice, or sustained by the facts upon the record. No
liability, therefore, equitable or legal, had been incurred, up
to the year 1798.

"And if, said Mr. W., negligence is not imputable, prior to
1798, and no liability had then been incurred, how is it for
the second period, from 1798 to 1800? The efforts of the former
period were negotiation--constant, earnest, extraordinary
negotiation. What were they for the latter period? His answer
was, war; actual, open war; and he believed the statute book
of the United States would justify him in the position. He was
well aware that this point would be strenuously controverted,
because the friends of the bill would admit that, if a state of
war between the two countries did exist, it put an end to claims
existing prior to the war, and not provided for in the treaty of
peace, as well as to all pretence for claims to indemnity for
injuries to our commerce, committed by our enemy in time of war.
Mr. W. said he had found the evidences so numerous, to establish
his position that a state of actual war did exist, that he
had been quite at a loss from what portion of the testimony
of record to make his selections, so as to establish the fact
beyond reasonable dispute, and at the same time not to weary
the Senate by tedious references to laws and documents. He had
finally concluded to confine himself exclusively to the statute
book, as the highest possible evidence, as in his judgment
entirely conclusive, and as being susceptible of an arrangement
and condensation which would convey to the Senate the whole
material evidence, in a satisfactory manner, and in less compass
than the proofs to be drawn from any other source. He had,
therefore, made a very brief abstract of a few statutes, which
he would read in his place:

"By an act of the 28th May, 1798, Congress authorized the
capture of all armed vessels of France which had committed
depredations upon our commerce, or which should be found
hovering upon our coast for the purpose of committing such
depredations.

"By an act of the 13th June, 1798, only sixteen days after the
passage of the former act, Congress prohibited all vessels of
the United States from visiting any of the ports of France or
her dependencies, under the penalty of forfeiture of vessel and
cargo; required every vessel clearing for a foreign port to
give bonds (the owner, or factor and master) in the amount of
the vessel and cargo, and good sureties in half that amount,
conditioned that the vessel to which the clearance was to be
granted, would not, voluntarily, visit any port of France or
her dependencies; and prohibited all vessels of France, armed
or unarmed, or owned, fitted, hired, or employed, by any person
resident within the territory of the French Republic, or its
dependencies, or sailing or coming therefrom, from entering or
remaining in any port of the United States, unless permitted by
the President, by special passport, to be granted by him in each
case.

"By an act of the 25th June, 1798, only twelve days after the
passage of the last-mentioned act, Congress authorized the
merchant vessels of the United States to arm, and to defend
themselves against any search, restraint, or seizure, by vessels
sailing under French colors, to repel force by force to capture
any French vessel attempting a search, restraint, or seizure,
and to recapture any American merchant vessel which had been
captured by the French.

"Here, Mr. W. said, he felt constrained to make a remark upon
the character of these several acts of Congress, and to call
the attention of the Senate to their peculiar adaptation to the
measures which speedily followed in future acts of the national
legislature. The first, authorizing the capture of French armed
vessels, was peculiarly calculated to put in martial preparation
all the navy which the United States then possessed, and to
spread it upon our coast. The second, establishing a perfect
non-intercourse with France, was sure to call home our merchant
vessels from that country and her dependencies, to confine
within our own ports those vessels intended for commerce with
France, and thus to withdraw from the reach of the French
cruisers a large portion of the ships and property of our
citizens. The third, authorizing our merchantmen to arm, was the
greatest inducement the government could give to its citizens
to arm our whole commercial marine, and was sure to put in
warlike preparation as great a portion of our merchant vessels
as a desire of self-defence, patriotism, or cupidity, would arm.
Could measures more eminently calculated to prepare the country
for a state of war have been devised or adopted? Was this the
intention of those measures, on the part of the government, and
was that intention carried out into action? Mr. W. said he would
let the subsequent acts of the Congress of the United States
answer; and for that purpose, he would proceed to read from his
abstract of those acts:

"By an act of the 28th June, 1798, three days after the passage
of the act last referred to, Congress authorized the forfeiture
and condemnation of all French vessels captured in pursuance of
the acts before mentioned, and provided for the distribution of
the prize money, and for the confinement and support, at the
expense of the United States, of prisoners taken in the captured
vessels.

"By an act of the 7th July, 1798, nine days after the passage
of the last-recited act, Congress declared 'that the United
States are of right freed and exonerated from the stipulations
of the treaties and of the consular convention heretofore
concluded between the United States and France; and that the
same shall not henceforth be regarded as legally obligatory on
the government or citizens of the United States.'

"By an act of the 9th July, 1798, two days after the passage
of the act declaring void the treaties, Congress authorized
the capture, by the public armed vessels of the United States,
of all armed French vessels, whether within the jurisdictional
limits of the United States or upon the high seas, their
condemnation as prizes, their sale, and the distribution of the
prize money; empowered the President to grant commissions to
private armed vessels to make the same captures, and with the
same rights and powers, as public armed vessels; and provided
for the safe keeping and support of the prisoners taken, at the
expense of the United States.

"By an act of the 9th February, 1799, Congress continued the
non-intercourse between the United States and France for one
year, from the 3d of March, 1799.

"By an act of the 28th February, 1799, Congress provided for an
exchange of prisoners with France, or authorized the President,
at his discretion, to send to the dominions of France, without
an exchange, such prisoners as might remain in the power of the
United States.

"By an act of the 3d March, 1799, Congress directed the
President, in case any citizens of the United States, taken on
board vessels belonging to any of the powers at war with France,
by French vessels, should be put to death, corporally punished,
or unreasonably imprisoned, to retaliate promptly and fully upon
any French prisoners in the power of the United States.

"By an act of the 27th February, 1800, Congress again continued
the non-intercourse between us and France, for one year, from
the 3d of March, 1800.

"Mr. W. said he had now closed the references he proposed
to make to the laws of Congress, to prove that war--actual
war--existed between the United States and France, from July,
1798, until that war was terminated by the treaty of the 30th
of September, 1800. He had, he hoped, before shown that the
measures of Congress, up to the passage of the act of Congress
of the 25th of June, 1798, and including that act, were
appropriate measures preparatory to a state of war; and he had
now shown a total suspension of the peaceable relations between
the two governments, by the declaration of Congress that the
treaties should no longer be considered binding and obligatory
upon our government or its citizens. What, then, but war could
be inferred from an indiscriminate direction to our public armed
vessels, put in a state of preparation, by preparatory acts, to
capture all armed French vessels upon the high seas, and from
granting commissions to our whole commercial marine, also armed
by the operation of previous acts of Congress, authorizing them
to make the same captures, with regulations applicable to both,
for the condemnation of the prizes, the distribution of the
prize money, and the detention, support, and exchange of the
prisoners taken in the captured vessels? Will any man, said Mr.
W., call this a state of peace?

"[Here Mr. Webster, chairman of the select committee which
reported the bill, answered, 'Certainly.']

"Mr. W. proceeded. He said he was not deeply read in the
treatises upon national law, and he should never dispute with
that learned gentleman upon the technical definitions of peace
and war, as given in the books; but his appeal was to the plain
sense of every senator and every citizen of the country. Would
either call that state of things which he had described, and
which he had shown to exist from the highest of all evidence,
the laws of Congress alone, peace? It was a state of open and
undisguised hostility, of force opposed to force, of war upon
the ocean, as far as our government were in command of the
means to carry on a maritime war. If it was peace, he should
like to be informed, by the friends of the bill, what would
be war. This was violence and bloodshed, the power of the one
nation against the power of the other, reciprocally exhibited by
physical force.

"Couple with this the withdrawal by France of her minister
from this government, and her refusal to receive the American
commission, consisting of Messrs. Marshall, Pinckney, and Gerry,
and the consequent suspension of negotiations between the two
governments, during the period referred to; and Mr. W. said, if
the facts and the national records did not show a state of war,
he was at a loss to know what state of things between nations
should be called war.

"If, however, the Senate should think him wrong in this
conclusion, and that the claims were not utterly barred by war,
he trusted the facts disclosed in this part of his argument
would be considered sufficient at least to protect the faith
of the government in the discharge of its whole duty to its
citizens; and that after it had carried on these two years of
war, or, if not war, of actual force and actual fighting, in
which the blood of its citizens had been shed, and their lives
sacrificed to an unknown extent, for the single and sole purpose
of enforcing these claims of individuals, the imputation of
negligence, and hence of liability to pay the claims, would not
be urged as growing out of this portion of the conduct of the
government.

"Mr. W. said he now came to consider the treaty of the 30th
September, 1800, and the reasons which appeared plainly to his
mind to have induced the American negotiators to place that
negotiation upon the basis, not of an existing war, but of a
continued peace. That such was assumed to be the basis of the
negotiation, he believed to be true, and this fact, and this
fact only, so far as he had heard the arguments of the friends
of the bill, was depended upon to prove that there had been no
war. He had attempted to show that war in fact had existed, and
been carried on for two years; and if he could now show that the
inducement, on the part of the American ministers, to place the
negotiation which was to put an end to the existing hostilities
upon a peace basis, arose from no considerations of a national
or political character, and from no ideas of consistency with
the existing state of facts, but solely from a desire still
to save, as far as might be in their power, the interests of
these claimants, he should submit with great confidence that it
did not lay in the mouths of the same claimants to turn round
and claim this implied admission of an absence of war, thus
made by the agents of the government out of kindness to them,
and an excess of regard for their interests, as the basis of
a liability to pay the damages which they had sustained, and
which this diplomatic untruth, like all the previous steps of
the government, failed to recover for them. What, then, Mr.
President, said Mr. W., was the subject on our part, of the
constant and laborious negotiations carried on between the two
governments from 1793 to 1798? The claims. What, on our part,
was the object of the disturbances from 1798 to 1800--of the
non-intercourse--of the sending into service our navy, and
arming our merchant vessels--of our raising troops and providing
armies on the land--of the expenditure of the millions taken
from the treasury and added to our public debt, to equip and
sustain these fleets and armies? The claims. Why were our
citizens sent to capture the French, to spill their blood, and
lay down their lives upon the high seas? To recover the claims.
These were the whole matter. We had no other demand upon France,
and, upon our part, no other cause of difference with her.

"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.