interests had been sacrificed. The correspondence of our ministers engaged in negotiations, both before and after the convention of 1800, sufficiently proves how hopeless was the effort to obtain full indemnity from France for injuries inflicted on our commerce from 1793 to 1800, unless it should be by an account in which the rival pretensions of the two Governments should each be acknowledged and the balance struck between them.

"It is supposable, and may be inferred from the contemporaneous history as probable, that had the United States agreed in 1800 to revive the treaties of 1778 and 1788, with the construction which France had placed upon them, that the latter Government would, on the other hand, have agreed to make indemnity for those spoliations which were committed under the pretext that the United States were faithless to the obligations of the alliance between the two countries.

"Hence the conclusion, that the United States did not sacrifice private rights or property to get rid of public obligations, but only refused to reassume public obligations for the purpose of obtaining the recognition of the claims of American citizens on the part of France."

And, again:

"Before entering on this it may be proper to state distinctly certain propositions which, it is admitted on all hands, are essential to prove the obligations of the Government.

"First. That at the date of the treaty of September 30, 1800, these claims were valid and subsisting as against France.

66

Second. That they were released or extinguished by the United States in that treaty, and by the manner of its ratification.

"Third. That they were so released or extinguished for consideration valuable to the Government, but in which the claimants had no more interests than any other citizens."

The President then makes an argument upon the treaties, and sums up the result of his argument in this language:

66

This review of the successive treaties between France and the United States has brought my mind to the undoubting conviction, that while the United States have, in the most ample and the completest manner, discharged their duty toward such of their citizens as may have been at any time aggrieved by acts of the French Government, so also France has honorably discharged herself of all obligations in the premises toward the United States. To concede what this bill assumes would be to impute undeserved reproach both to France and to the United States."

In the light of this history, hereinbefore given, it has been urged that these claims are not valid claims against either the Government of France or the United States, because it is alleged that they arose when war was existing between the two nations, and that therefore they are essentially war claims," and being such neither Government is liable to pay them.

66

This contention is answered by what has been above presented, which may be summarized as follows:

I.

THE TREATIES.

As will appear from what has been already quoted, the United States guarantied to France her possessions in the West Indies and certain port privileges.

II.

In consideration of this, France agreed to guaranty to the United States independence, which with the aid of France we gained.

III.

These being the treaty stipulations existing between the two Governments, France complained that the United States were not in good faith carrying out on their part these treaty stipulations, and in 1793 began these depredations on

our commerce.

The contention on the part of France that the United States were not carrying out their treaty obligations was intensified when she learned of the Jay treaty of 1794, by which England was accorded rights in our ports that France

considered herself to be, and as your committee believe was, entitled to exclusively under the treaties of 1778, and thereafter these depredations became more flagrant from year to year until the treaty of 1800 practically ended them.

The contention now is that what France did in that regard and what was done by the United States in resistance of this conduct of France constituted a state of war.

We have already referred to the French decrees bearing on this subject, and need not repeat them here.

IV.

DID THE UNITED STATES REGARD A STATE OF WAR AS EXISTING?

These depredations being flagrant and continuing, acts of Congress were passed which it is necessary to consider, and the provisions of which are sufficiently indicated in the opinion of Marshall, C. J., now referred to. (Seeman v. Talbot, 1 Cr., 1.)

In that case Chief Justice Marshall says, "to determine the real situation of America in regard to France the acts of Congress are to be inspected.” He adds:

"The whole powers of war being, by the Constitution of the United States, vested in Congress, the acts of that body can alone be resorted to as our guides in this inquiry. It is not denied, nor in the course of the argument has it been denied, that Congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.

"To determine the real situation of America in regard to France, the acts of Congress are to be inspected.

"The first act on this subject passed on the 28th of May, 1798, and is entitled, An act more effectually to protect the commerce and coasts of the United States.'

"This act authorizes any armed vessel of the United States to capture any armed vessel sailing under the authority, or pretense of authority, of the Republic of France, which shall have committed depredations on vessels belonging to the citizens of the United States, or which shall be found hovering on the coasts for the purpose of committing such depredations. It also authorizes the recapture of vessels belonging to the citizens of the United States.

"On the 25th of June, 1798, an act was passed 'to authorize the defense of the merchant vessels of the United States against French depredations.'

"This act empowers merchant vessels, owned wholly by citizens of the United States, to defend themselves against any attack which may be made on them by the commander or crew of any armed vessel sailing under French colors, or acting, or pretending to act, by or under the authority of the French Republic, and to capture any such vessel. This act also authorizes the recapture of merchant vessels belonging to the citizens of the United States. By the second section such armed vessel is to be brought in and condemned for the use of the owners and captors.

"By the same section recaptured vessels belonging to the citizens of the United States are to be restored, they paying for salvage not less than one-eighth nor more than one-half of the true value of such vessel and cargo.

"On the 28th of June an act passed, 'in addition to the act more effectually to protect the commerce and coasts of the United States.' This authorizes the condemnation of vessels brought in under the first act, with their cargoes, excepting only from such condemnation the goods of any citizen or person resident within the United States, which shall have been before taken by the crew of such captured vessel.

"The second section provides, that whenever any vessel or goods the property of any citizen of the United States or person resident therein, shall be recaptured, the same shall be restored, he paying for salvage one-eighth part of the value, free from all deductions.

"On the 9th of July another law was enacted 'further to protect the commerce of the United States.'

"This act authorizes the public armed vessels of the United States to take any armed French vessel found on the high seas. It also directs such armed vessel, with her apparel, guns, etc., and the goods and effects found on board, being French property, to be condemned as forfeited.

"The same power of capture is extended to private armed vessels.

"The sixth section provides, that the vessel or goods of any citizen of the United States, or person residing therein, shall be restored, on paying for salvage not less than one-eighth nor more than one-half, of the value of such recapture, without any deduction.

"The seventh section of the act for the government of the navy, passed the 2d of March, 1799, enacts 'that for the ships or goods belonging to the citizens of the United States, or to the citizens or subjects of any nation in amity with the United States, if retaken within twenty-four hours, the owners are to allow one-eighth part of the whole value for salvage,' and if they have remained above ninety-six hours in possession of the enemy one-half is to be allowed.

"On the 3d of March, 1800, Congress passed an act providing for salvage in cases of recapture.

"This law regulates the salvage to be paid 'when any vessels or goods, which shall be taken as prize as aforesaid, shall appear to have before belonged to any person or persons permanently resident within the territory and under the protection of any foreign prince, government, or state in amity with the United States, and to have been taken by an enemy of the United States, or by authority, or pretense of authority, from any prince, government, or state, against which the United States have authorized or shall authorize, defense or reprisals.'

"These are the laws of the United States, which define their situation in regard to France, and which regulate salvage to accrue on recaptures made in consequence of that situation.

"It is, I believe, a universal principle, which applies to those engaged in a partial as well as those engaged in a general war, that where there is probable cause to believe the vessel met with at sea is in the condition of one liable to capture, it is lawful to take her and subject her to the examination and adjudication of the courts.

"The Amelia was an armed vessel commanded and manned by Frenchmen. It does not appear that there was evidence on board to ascertain her character. It is not, then, to be questioned but that there was probable cause to bring her in for adjudication."

The recapture, then, was lawful.

"It is true that a violation of the law of nations by one power does not justify its violation by another; but that remonstrance is the proper course, and this is the course which has been pursued. America did remonstrate, most earnestly remonstrate, to France against the injuries committed on her; but, remonstrance having failed, she appealed to a higher tribunal, and authorized limited hostilities. This was not violating the law of nations, but conforming to it. (Talbot v. Seeman, I Cr., 41.)" In the case of Bas v. Tingy, 4 Dallas, each of the justices gave a separate opinion, and Mr. Justice Chase says:

"Congress is empowered to declare a general war, or Congress may wage a limited war; limited in place, in objects, and in time. If a general war is declared, its extent and operations are only restricted and regulated by the jus belli, forming a part of the law of nations; but if a partial war is waged, its extent and operation depend on our municipal laws. What, then, is the nature of the contest subsisting between America and France? In my judgment, it is a limited, partial war. Congress has not declared war in general terms, but Congress has authorized hostilities on the high seas by certain persons in certain cases. There is no authority given to commit hostilities on land; to capture unarmed French vessels, nor even to capture French armed vessels lying in a French port; and the authority is not given indiscriminately to every citizen of America against every citizen of France, but only to citizens appointed by commissions or exposed to immediate outrage and violence. So far it is, unquestionably a partial war; but, nevertheless, it is a publie war, on account of the public authority from which it emanates."

In the same case Mr. Justice Washington says:

"But hostilities may subsist between two nations more confined in its nature and extent, being limited as to places, persons, and things, and this is more properly termed imperfect war, because not solemn, and because those who are authorized to commit hostilities act under special authority, and can go no farther than to the extent of their commission. * * *It is a war between the two nations, though all the members are not authorized to commit hostilities such as in a solemn war, where the government restrains the general power.'

In addition to this, by section 3 of the act approved February 9, 1799, it was provided that no French ship, armed or unarmed, should "be allowed an entry or to remain within the territory of the United States unless driven thither by distress of weather or in want of provisions." And if, contrary to this, any such were found, they "shall be required to depart without unnecessary delay.”

This act unmistakably and irresistibly proves that the nations were not at war with each other at that late date, February 9, 1799. It never was heard of that in

time of open public war the armed vessels of one belligerent were permitted to enter the ports of another for repairs and provisions.a

It is plain from what we have above presented that neither France nor the United States regarded this as a state of general war; that these acts of Congress were purely defensive in their character; that there was that state of limited hostilities on the part of the United States which authorized our merchantmen to arm for defense against the assaults of the French privateers; which authorized our armed vessels to capture French

!

a In this connection the committee desires to call special attention to the following extract from the learned argument on these claims delivered by Mr. Dibble on August 21, 1888:

In April, 1798, negotiations for a new treaty, or a modification of the old ones, having failed, Pinckney and Marshall left France. Gerry remained until July or August following, having received from Mr. Pickering, Secretary of State, a positive recall.

But before his departure news of the vigorous action of Congress, authorizing French cruisers hovering upon our coasts to be attacked, and suspending commercial relations with France and its colonies, had reached Paris. In this state of affairs, Talleyrand writes to Gerry of the intentions of the French Directory, as follows:

"In the present crisis, it confines itself to a measure of security and self-preservation, by laying a temporary embargo on American vessels, with a reserve of indemnities, if there be occasion for them. It is yet ready, it is as much disposed as ever, to terminate by a candid negotiation the differences which subsist between the two countries."

Let me call attention to the fact, that Talleyrand, the great diplomatist of France, informed Gerry, that France would reserve a right to indemnity against our Government, in case our cruisers attacked French cruisers. How can this be reconciled with the position, assumed by those opposed to these claims, that indemnities could not be claimed against France, in face of the fact that France announced her intention to claim indemnity against the United States?

*

*

*

And a few days afterwards Talleyrand reiterates the pacific inclinations of the French Government: "By information which it has just received, it indeed learns that violences have been committed upon the commerce and citizens of the United States in the West Indies and on their coasts. A remedy is preparing for it, and orders will soon arrive in the West Indies calculated to cause everything to return within its just limits, until an amicable arrangement between France and the United States shall re-establish them respectively in the enjoyment of their treaties. This period, sir, can not be too near at hand."

And again, in his final communication to Mr. Gerry, dated August 3, 1798, he says: "Presuming, sir, that you have not yet embarked, I address to you a decree of the Executive Directory, wherein you will find a part of the measures, which I announced to you the 4th of this month (Thermidor). Its solicitude will not be confined to that. Neutrals, in general, will have reason soon to be convinced of its firm attachment to the principles to which it is desirous that all maritime nations might agree. It depends upon the United States in particular, to cause every misunderstanding immediately to disappear between them and the French Republic.

After Gerry's departure, Talleyrand continued this correspondence with Mr. Skipwith, our counsul-general at Paris, who writes to Mr. Pickering, Secretary of State, as follows:

"With a copy of a letter I have just received from the minister of foreign affairs, I have the honor, under cover hereof, to transmit to you copies of two letters which have been officially communicated to me from the minister of marine to all principal civil and military officers at the different ports of this Republic, concerning the safety and protection of American citizens in general, and those seamen in particular, who were detained, or are in confinement at those ports. Agreeably to the intimations contained in the minister's letter to me, I have this day made application to the minister of police in favor of the American seamen, who, by means of one of the public authorities at L'Orient, had been arrested as Englishmen, and are at present confined at Orleans as prisoners of war. In a few days I expect to obtain their liberation, and shall procure their passages home. I have likewise the pleasure of forwarding to you an official copy of an arréte of the directory for raising the embargo, imposed by Government on all vessels belonging to the United States in the ports of the Republic."

And on January 23, 1799, Mr. Skipwith writes to the Secretary of State that he has reason to think that "the rights and property of neutral nations will be considerably more respected than they have hitherto been."

About the same time the Secretary of State wrote to our consul at Havana, that it was a mistake to suppose, that it was unlawful for American vessels to bring Frenchmen as passengers to the United States.

armed vessels that were hovering on our coasts and committing depredations on our merchantmen.

The whole policy of the United States was to protect from actual immediate injuries in specific cases, not to attempt to get compensation for the class of cases now being presented for the consideration of Congress. These cases did not come within this limited war. There was no effort or purpose to procure compensation for injuries in the shape of reprisals, nor were these losses ever compensated for directly or indirectly by reprisals or otherwise, but they are as yet wholly uncompensated for; the whole scope and purpose of the legislation contained in the said four acts being to prevent France from continuing her depredations, and not to secure indemnity for past depredations. Those whose judgment have led them to oppose the validity of these claims have fallen back upon the argument that they were war claims, because France had made war on the United States. This argument seems to have originated with General Dix, of New York, in the speech herein before alluded to. The answer to this argument is readily found in the history of these events as furnished in the official public documents relating to them. The argument of General Dix, repeated in recent debates, rests upon the assumption that France had made war upon the United States, and he begins this alleged war with the violation of the treaty of 1778 by the French decree of May 9, 1793, authorizing the seizure of enemy's property on board of neutral vessels, and those of 1796, March 2, 1797, and January 18, 1798.

66

Mr. Dix's argument was, in substance, this: That France by the decrees above referred to had, on her own separate action and against our earnest, persevering remonstrances, and by a system of flagrant depredations on our commerce, abrogated the treaties of 1778." He further contended that the acts of Congress, passed in 1798, authorizing the arming of merchantmen for the purposes of defense and authorizing the arming of vessels to capture French armed vessels on the high seas, and especially the act of 7th of July, 1798, by which it was declared that the United States were thenceforth freed from the obligations of the treaties, constituted war on the part of the United States. His argument is virtually this: That France was at war with the United States from 1793 to 1798 by virtue of the decrees and the acts of spoliation, and that Congress had placed the United States in the attitude of war with France by the enactment of the laws of 1798, hereinbefore referred to. Upon this theory of the case France was at war with the United States from 1793 to 1798, but the United States was not at war with France, and that the two nations were at war with each other after the 7th of July, 1798.

It is certain that no act of Congress was passed until, in 1798, when our merchantmen were authorized to arm themselves for defensive purposes, and that prior to that time the United States had contented themselves with simply protesting against the spoliations, and through diplomatic means was endeavoring to stop them. Up to the 7th of July, 1798, this alleged war was an altogether one-sided one, and it seems to your committee plain that the condition up to the 7th of July, 1798, was not a state of war, and in this we are supported by the asseverations of both nations constantly repeated and insisted upon, as is shown by what we herein have quoted. This disposes of the position taken by Mr. Dix up to the 7th of July, 1798, and as to the period intervening between July 7, 1798, and the making of the treaty of 1800, your committee consider that both nations insisted that there had been no war, and treated with each other upon that basis. All of these and other decrees were in derogation of the treaty, but it is a curious argument, and certainly a fallacious one, that one nation can, by violating a treaty with and committing depredations on the commerce of another, and in the fact that it has done so, find the proof of a war which released it from all claims for indemnity based upon these depredations. Now, as stated elsewhere herein, there are two fundamental questions in these cases. First, were they valid claims for indemnity as against France? and secondly, has the United States become liable for them? The Dix argument of a war by France relates of course only to the first proposition, viz, the liability of France to make indemnity, and in this aspect of the case it is very material to see how France herself dealt with this question of her liability to make indemnity for these depredations and spoliations. The extracts quoted from 2 Wharton's International Law, 722, and Document 102, in this report, under the head of "French View," can leave no doubt that the French ministers freely admitted their obligation to make indemnity for these spoliations. After frequent admissions of their liability and oftrepeated propositions to make compensation for spoliations and treaty rights the basis of settlement, they sought to narrow the scope of the negotiations by sharply presenting the alternative of the ancient treaties with indemnities, or a new treaty without indemnities.

The entire negotiation was conducted on their part on the basis of the recognition of their liability, and a corresponding demand for compensation for the treaty rights of France which had been withheld. They expressly and repeatedly repudiated the