advantages and privileges stipulated by the treaties, by means of the reciprocal relinquishment of indemnities, would prove to be the most advantageous arrangement, and also the most honorable to the two nations." (Ibid., p. 636.) Here, again, was a proposition of set-off, which was repeated in other different forms.

The deadlock which clogged the negotiation, even at the beginning, was now complete. The American plenipotentiaries announced to their Government that they "were driven to quit France," or to find some other terms of adjustment. The latter alternative was adopted, and the negotiation was renewed, with the understanding "that the parties put off to another time the discussion of the indemnities and the treaties." (Ibid., p. 687.) The other questions of a general character furnished no ground of serious controversy; and the conferences proceeded tranquilly from day to day, till September 30, 1800, when the negotiations resulted in what was entitled a "provisional treaty." The title revealing its temporary character was subsequently changed, at the request of the French plenipotentiaries, to that of convention, which it now bears in the statute book.

The convention, after declaring in its first article that "there shall be a firm, inviolable, universal peace, and a true and sincere friendship, between the French Republic and the United States of America,” proceeded in the next article to stipulate as follows (Statutes at Large, vol. 8, p. 178):

"ARTICLE II. The ministers plenipotentiary of the two parties not being able to agree at present respecting the treaty of alliance of February 6, 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 on 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."

By the language of this article, the disagreement of the two parties with regard to the early treaties and the indemnities mutually due or claimed is specifically declared, and it is then provided that "the parties will negotiate further on this subject at a convenient time," which means, of course, that hereafter, at a more auspicious moment, and with other plenipotentiaries, "the parties" will attempt to reconcile this disagreement. The whole subject, with its eight years of controversy and heartburning, was postponed. Claims and counter-claims were left to sleep, while the spirit of peace descended upon the two countries.

The convention was signed at Morfortaine, the elegant country home of Joseph Bonaparte, and the occasion was turned into a festival, illustrated afterwards by the engraving of Piranesi, where nothing was wanting that hospitality could supply. The First Consul was there, with his associates in power; also Lafayette, the friend of our country, rescued from his Austrian dungeon and restored to France; and there also were the plenipotentiaries of both sides, and the American citizens then in France, all gathered in brilliant company to celebrate the establishment of concord between the two republics. (Memoires due Roi Joseph, tom. 1, p. 94.) The First Consul proposed as a toast, "The manes of the French and the Americans who died on the field of battle for the independence of the New World;" so that even at this generous festival, to grace a reconciliation founded on the postponement of claims and counterclaims, the youthful chief, whose star was beginning to fill the heavens, proclaimed the undying obligations of the United States to France. This strain has been adopted also by M. Thiers, who, after referring to this convention as the first that was concluded by the consular government, says: "It was natural that the reconciliation of France with the different powers of the globe should begin with that republic to which she had in a measure given birth." But the great historian, while thus recording our obligations to France, shows how claims and counter-claims had been postponed. "The First Consul,' he says, "had allowed the difficulties relative to the treaty of alliance of 1778 to be adjourned; but, on the other hand, he had required the adjournment of the claims of the Americans relative to captured vessels." (Histoire du Consulat, tom. 2, liv. 7.) In this summary, the stipulations of the convention at the time of its signature are accurately stated. But, however imperfect, it was the first in that procession of peace, embracing Lunéville, Amiens, and the Concordat, which for a moment closed the temple of Janus, whose gates were left open by the revolution in France.

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The ratification of the First Consul followed the celebration at Morfortaine, so that the convention, with its postponement of mutual claims, was definitely accepted by France. It was otherwise in the United States, where the result was not regarded with favor. The postponement of a controversy is not a settlement, and here was nothing but postponement, leaving the old cloud still hanging over the country, ready to burst at the demand of England or of France. It was important that the early treaties, with their entangling engagements, should cease, even as a subject of future negotiations. In this spirit the Senate of the United States, when the convention was submitted for ratification, expunged the second article, providing that "the parties will negotiate further on these subjects," and limited the convention to eight years. On the 8th of February, 1801, President Adams, by proclamation countersigned by John Marshall as Secretary of State, published the convention as duly ratified, "saving and excepting the second article," which was declared to be expunged, and of no force or validity. (Statutes at Large, vol. 8, p. 192.) The precise effect of this proceeding was not explained, and it remained to see how it would be regarded in France.

Were the claims on France abandoned? This was the question which occupied the attention of our minister, Mr. Murray, when charged to exchange with France the ratifications of the convention as amended by the Senate. Reporting to the Government at home his conference with the French plenipotentiaries, he said, "I fear that they will press an article of formal abandonment on our part, which I shall evade." (French Spoliations, 1826, p. 666.) He hoped to keep still another chance for indemnities. On the other hand, the French plenipotentiaries feared that an unconditional suppression of the second article would leave them exposed to the claims of the United States without any chance for their counter-claims; but they did not object to a mutual abandonment of indemnities, which Mr. Murray admitted would "always be set off against each other." (Ibid., 675.) At last the conclusion was reached, and on the 31st of July, 1801, the convention was ratified by the First Consul, with the addition by the Senate limiting it to eight years, and with the retrenchment by the Senate of the second article, the whole with a proviso by the First Consul, "That by this retrenchment the two states renounce the respective pretensions which are the object of the said article." Such were the important words of final settlement. What had been left to inference in the amendment of the American Senate was placed beyond question by this French proviso. Claims and counter-claims were not merely suspended; they were formally abandoned. The convention, with this decisive modification, was submitted to the Senate by President Jefferson, and again ratified by a vote of twenty-two yeas to four nays. On the 21st of December, 1801, it was promulgated by the President in the usual form, with the supplementary proviso, and all persons were enjoined to observe and fulfill the same, "and every clause and article thereof." There is one aspect of this result which cannot fail to arrest attention. Here was a release of all outstanding obligations of the United States under those famous treaties with France which assured national independence. The joy with which those treaties, ancient heralds of triumph, were originally welcomed in camp and Congress has been already portrayed, and now a kindred joy prevailed when the country, anxious and sorely tried, was at last set free from their obligations, and American commerce, venturing forth again from its banishment, brought back its treasures to pour them into the lap of the people. Strange fate! There was joy at the birth of these treaties, and joy also at their death. But it was because their death had become to us, like their birth, a source of national strength and security.

Thus closed a protracted controversy, where each power was persistent to the last. Nothing could be more simple than the mode of adjustment, and nothing more equitable, if we regard the two Governments only. The claims of each were treated as a set-off to the claims of the other, and mutual releases were interchanged, so that each, while losing what it claimed, triumphed over its adversary. But the triumph of the United States was at the expense of American citizens. Nothing is without price, and new duties originating in this triumph sprang into being.

ASSUMPTION OF CLAIMS BY THE UNITED STATES, AND SUBSTITUTION OF UNITED STATES FOR FRANCE.

IV. The natural consequence of this set-off and mutual release was the assumption by our Government of the original obligations of France to American citizens, and its complete substitution for France as the responsible debtor. This liability was completely foreseen by the American plenipotentiaries, Messrs. Pinckney, Marshall, and Gerry. These were their words, under date of November 8, 1797: "We observed to Mr. Bellamy that none of our vessels had what the French call a rôle d'équipage, and that if we were to surrender all the property which had been taken from our citizens in cases where their vessels were not furnished with such a rôle, the Government would be responsible to the citizens for the property so surrendered, since it would be impossible to undertake to assert that there was any plausibility in the allegation that our treaties required a rôle d'équipage." (French Spoliations, Ex. Doc., 1826, p. 467.) This admission, so important in this discussion, was so clearly in conformity with correct principles that it was naturally made, even without special instructions from the Government.

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Had the claims on each side been "national," no subsequent question could have occurred, for each would have extinguished the other in all respects forever. It was the peculiarity in this case that on one side the claims were "national," and on the other side "individual;" but a set-off of "individual” claims against national claims must, of course, leave that Government responsible which has appropriated the " individual" claims to this purpose. The set-off and mutual release is between nation and nation; but if the claims on one side are only "individual," and not "national," the nation which, by virtue of this consideration, is released from "national" obligations, must be substituted for the other nation as debtor, so that every individual" whose claims are thus appropriated can confidently turn to it for satisfaction. On this point there can be no doubt, whether we regard it in the light of common sense, reason, duty, Constitution, or authority.

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(1) According to common sense, any individual" interest appropriated to a "national" purpose must create a debt on the part of the nation, still further enhanced, if through this appropriation the nation is relieved from outstanding engagements already the occasion of infinite embarrassment, and hanging like a drawn sword over the future.

(2) According to reason, any person intrusted with the guardianship of particular interests become personally responsible with regard to them, especially if he undertakes to barter them against other interests for which he is personally responsible. Thus, an attorney sacrificing the claims of his clients for the release of his own personal obligations becomes personally liable, and so also the trustee appropriating the trust fund for any personal interest becomes personally liable. All this is too plain for argument, but it is applicable to a nation as to an individual. In the case now before your committee our Government was attorney to prosecute" individual" claims of citizens, and also trustee for their benefit, to watch and protect their interests, so that it was bound to all the responsibilities of attorney and trustee, absolutely incapacitated from any act of personal advantage, and compelled to regard all that it obtained, whatever form of value it might assume, whether money or release, as a trust fund for the original claimants.

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(3) Duty, also, in harmony with reason, enjoins upon government the protection of citizens against foreign spoliations and the prosecution of their claims to judgment. Claimants are powerless as individuals." Their claims are effective only when adopted by the nation. This duty, so obvious on general principles, was reenforced in the present case by the special undertaking of Mr. Jefferson, already adduced, when he announced that he "had it in charge from the President to assure the merchants of the United States concerned in foreign commerce and navigation that due attention will be paid to any injuries they may suffer on the high seas or in foreign countries." Such a duty, thus founded and thus openly assumed, could not be abandoned, on any inducement proceeding from France, without a corresponding responsibility toward those citizens whose interests were allowed to suffer. A waiver of national duty, especially where made for the national benefit, must entail national obligation.

(4) The Constitution also plainly requires what seems so obvious to common sense, reason, and duty, when it declares that “private property shall not be taken for public use without just compensation." Here "private property," to a vast amount, was taken for "public use," involving the peace and welfare

of the whole country; and down to this day the sufferers are petitioning Congress for that "just compensation" solemnly promised by the Constitution.

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(5) Public law is also in harmony with the Constitution in this requirement. According to Vattel, the sovereign may, in the exercise of his right of eminent domain, dispose of the property, and even the person, of a subject, by a treaty with a foreign power; "but," says this eminent authority, as it is for the public advantage that he thus disposes of them, the state is bound to indemnify the citizens who are sufferers by the transaction." (Vattel, Law of Nations, book 4, ch. 2, § 12.) Words more applicable to the present case could not be employed.

(6) The authority of great names confirms this liability of the United States. Among those who took part in the negotiations with France, there were none but Mr. Pickering and Chief Justice Marshall, who still lingered on the stage when the subject was finally pressed upon Congress. Mr. Pickering was Secretary of State under Washington and Adams, and drew the instructions to our plenipotentiaries. His testimony is explicit. Without giving his statement at length, it will be enough to quote these words, in a letter dated November 19, 1824 (Mr. Clayton's speech, Senate, 1846, Appendix):

"Thus the Government bartered the just claim of our merchants on France to obtain a relinquishment of the French claim for a restoration of the old treaties, especially the burdensome treaty of alliance, by which we were bound to guarantee the French territories in America. On this view of the case it would seem that the merchants have an equitable claim for indemnity from the United States. * * * It follows, then, that if the relinquishment had not been made the present French Government would be responsible; consequently, the relinquishment by our own Government having been made in consideration that the French Government relinquish its demands for a renewal of the old treaties, then it seems clear that, as our Government applied the merchants' property to buy off those old treaties, the sums so applied should be reimbursed." Chief Justice Marshall, who was one of the plenipotentiaries that attempted to secure payment of these claims from France, and afterward, as Secretary of State, countersigned the proclamation of President Adams first promulgating the convention of 1800, has borne a testimony similar to that of Mr. Pickering. In conversation with Mr. Preston, of South Carolina, he said that “having been connected with the events of the period, and conversant with the circumstances under which the claims arose, he was, from his own knowledge, satisfied that there was the strongest obligation on the Government to compensate the sufferers by the French spoliations." (Ibid.) Mr. B. Watkins Leigh, of Virginia, testifies that the same eminent authority said in his presence distinctly and positively, "that the United States ought to make payment of these claims." This testimony made a particular impression upon Mr. Leigh, because he had been unfavorable to the claims. The obligation of the United States may be inferred properly from the declared justice of the claims which had been renounced. On this point the authority is equally explicit.

Of course, in urging them upon France, earnestly and most assiduously, by successive plenipotentiaries, there was a plain adoption of these as just. But even after their abandonment they continued to be recognized as just.

Robert R. Livingston, plenipotentiary at Paris, in his correspondence with our Government, shortly after the abandonment, shows his discontent. In one of his dispatches he speaks compendiously of "the payment for illegal captures, with damages and indemnities on the one side, and the renewal of the treaties of 1778 on the other, as of equivalent valve." And in another dispatch, under date of January 13, 1802, he says "he has always considered the sacrifices we have made of immense claims as a dead loss." (French Spoliations, 1826, p. 704.) But this "dead loss" fell upon "individuals," and not upon the

nation." Mr. Madison, as Secretary of State, in his instructions to Mr. Charles Pinckney, our minister at the court of Spain, under date of February 6, 1804, upholds the justice of the claims in pregnant words, as follows (Ibid., p. 795): "The claims from which France was released were admitted by France, and the release was for a valuable consideration in a correspondent release of the United States from certain claims on them."

Thus, according to official declaration, the claims of American citizens were "admitted by France," but they were released for a valuable consideration which first inured to the benefit of the Government of the United States. Equitably that valuable consideration must belong to the claimants.

Mr. Clay, as Secretary of State, under John Quincy Adams, made a report which had the sanction of the latter, where he testifies to the justice of the claims in the following words (ibid., p. 7):

"The pretensions of the United States arose out of the spoliations under color of French authority in contravention to law and existing treaties. Those of France sprang from the treaty of alliance of the 6th of February, 1778, the treaty of amity and commerce of the same date, and the convention of the 16th November, 1788. Whatever obligations or indemnities from those sources either party had a right to demand were respectively waived and abandoned and the consideration which induced one party to renounce his pretensions was that of the renunciation by the other party of his pretensions. What was the value of the obligations and indemnities so reciprocally renounced can only be matter of speculation."

Mr. Clay concludes his report by saying that the Senate, to which it is addressed, was most competent to determine how far the appropriation of the indemnities due to American citizens was "a public use of private property, within the spirit of the Constitution, and whether equitable considerations do not require some compensation to be made to the claimants."

There is one other authority of commanding character that ought not to be forgotten. It is Edward Livingston, jurist, statesman, and diplomatist, who, though not engaged in the negotiations on the subject, knew them as contemporary, and afterward, as Senator, made a report, accepted ever since as an authentic statement of the whole case, in which he says:

"The committee think it sufficiently shown that the claim for indemnities was surrendered as an equivalent for the discharge of the United States from its heavy national obligations, and for the damages that were due for their preceding non-performance of them. If so, can there be a doubt, independent of the constitutional provision, that the sufferers are entitled to indemnity? Under that provision is not this right converted into one that we are under the most solemn obligations to satisfy? To lessen the public expenditure is a great legislative duty; to lessen it at the expense of justice, public faith, and constitutional right would be a crime. Conceiving that all these require that relief should be granted to the petitioners, they beg leave to bring in a bill for that purpose."

The list of authorities may be closed with that of the Emperor Napoleon, who, at St. Helena, dictated to Gourgaud the following testimony with regard to the convention of 1800:

"The suppression of this article (2d of the convention) at once put an end to the privileges which France had possessed by the treaty of 1778, and annulled the just claims which America might have made for injuries done in time of peace." This was exactly what the First Consul had proposed to himself in fixing these two points as equi-ponderating each other. (Gourgaud's Memoirs, vol. 2, p. 129.)

Thus the head of the French Government at the time of the convention unites with the statesmen of our own country in conceding the justice of these claims.

To all this array of argument and authority the committee see no answer. They follow its teaching, when they adopt the conclusion, in which so many previous committees have already united, that these individual claims were originally just, and that the Government of the United States, having appropriated them for a "national" purpose, was substituted for France as the debtor.

OBJECTIONS.

Assuming, then, the obligations of the United States, the question occurs: What sum should be applied by Congress to its liquidation? But before proceeding to this point, the committee will glance at what is urged sometimes against this obligation, so far at least as they are aware of objections.

Objections of a preliminary character have been already considered, but there are others which belong properly to this stage of the inquiry.

Curiously, the two main objections most often adduced answer each other flatly. It is sometimes insisted that the claims were invalid, by reason of the abnormal relations between France and the United States, anterior to the convention of 1800, pronounced to be a state of war; and then, again, it is sometimes insisted that these claims were provided for in the subsequent convention of 1803 for the purchase of Louisiana. But if the claims were really invalid, as has been argued, it is absurd to suppose that France would have