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ber, 1796, which will be found at page 354<, and which, I
think, I was not mistaken in saying had been cited to show
that we had been called on to fulfil by force the guaranty of
her West India islands to France. Mr. Adet commences
his letter by claiming, " in the name of American honor, in
the name of the faith of treaties, the execution of that con-
tract, which assured to the United States their existence, and
which France regarded as the pledge of the most sacred
union between two people, the freest upon earth." He
then proceeds to state the grievances of which the Govern-
ment of France complained, discussing in an elaborate man-
ner the various subjects of disagreement between the two
countries, the interpretations given to the 17th and 22d
articles of the treaty of amity and commerce in respect to
privateers and prizes, the mission of Mr. Jay, the treaty he
negotiated with Great Britain, and other kindred subjects.
On the S65th. page will be found a recapitulation of these
grievances by Mr. Adet, as the result of the statement I
have just given, and no reference will be found to the guar-
anty of the West India islands. The only reference I have
been able to find to these islands is a general one, near the
close of the letter, (page 367,) J" which the United States
are charged with allowing " the F'rench colonies to be de-
clared in a state of blockade, and its citizens interdicted the
right of trading to them " ; and this reference I cannot
regard as a call on the United States then, or as the evi-
dence of a previous call, to execute the guaranty, — the
question I suppose to be at issue.

Mr. Jefferson's letter to Mr. Madison, in April, 1794-, to
which the Senator from Delaware referred, (see volume 3 of
his Works, page 303,) was written at Monticello, and it
certainly expresses the opinion that we ought, at a proper



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89



time, to interpose and declare that the French West India
islands should rest with France. But would Mr. Jefferson
have expressed the same opinion a few years later, when our
difficulties with her had ripened into open hostility ] It is
not to be believed. At page 4-00 of the same volume, a
letter will be found from him to Samuel Smith, dated
August ;2!2, 1798, in which he says both France and Eng-
land " have given, and are daily giving, sufficient cause for
war " ; and at page 425 of the same volume, in another
letter, dated March 12, 1799, lie says, (though expressing
the belief that France had sincerely desired peace,) " The
atrocious proceedings of France towards this country had
wellnigh destroyed its liberties." Both these letters were
written while he was Vice-President of the United States,
and while he was. taking an active part in the political con-
cerns of the country.

I do not regard this question of any very material con-
sequence so far as it concerns the claims under consider-
ation ; but it has been referred to as the evidence of a
breach of faith on the part of the United States, and I felt
it due to the subject to present the facts I have stated, leav-
ing to the Senate to draw its own conclusions from these
facts.

Let us return a moment to the treaties of 1778. They
were, as we have seen, treaties for the mutual benefit of the
parties. The treaty of amity and commerce contained stip-
ulations of reciprocal advantage. France placed a higher
value on the advantages secured to her than we on those
secured to us; but this does not affect the nature of the
treaties. Their fundamental purpose was mutuality. In
renouncing or abandoning them, both parties renounced
substantial benefits. In renouncing the treaty of amity
and commerce, we lost the benefit of the stipulation that free
ships make free goods, — a great principle, for which we
had been contending from the foundation of our indepen-
dence, — and were thrown back upon the more rigorous prin-



12



90



SPEECHES IN THE SENATE.



ciple of the international rule, as then asserted, understood,
and acted on, that enemy's goods may he taken in neutral
bottoms. (Page 624*.) We also lost the henefit of the
stipulation concerning contraband articles, which were placed
by the treaty on a more liberal footing than they would have
been if governed by the existing usages of civilized States.
France lost some benefits also ; but the advantages on the
one side under the treaty of amity and commerce may be
considered as fairly counterbalancing those on the other.
The treaty of alliance contained mutual guaranties; and
these were considered beneficial both to us and France. In
the instructions to Messrs. Pinckney, Marshall, and Gerry,
they were directed to propose an exchange of these guaran-
ties for specific succors ; — the United States to furnish a
moderate sum of money, or quantity of provisions, when
the casus foederis (a defensive war) should occur, and France
a like sum of money, or an equivalent in military stores or
clothing. (Page 4<57-) The same view of the subject was
taken in 1800 by the American Ministers, who proposed, in
case the treaties were revived, that the guaranty should be
specific and the succors equal. (Page Q>SS.^ I cite these
views to show that the treaties were considered as conferring
reciprocal benefits and imposing nmtual burdens, and that,
in renouncing them, the advantage gained was not wholly on
the part of the United States. The latter, it is true, were
unwiUing to reassume the obligations imposed by the* treaties,
from an earnest desire to avoid alliances which should involve
us in wars waged by the great powers of Europe against
each other ; and the American Ministers offered at one time
to pay eight millions of francs (about a million and a half
of dollars) as a consideration for not reviving them, — (page
629,) — not as a consideration for getting rid of existing
obligations, but for not reviving old ones. But this propo-
sition was a part of a series of offers, embracing an adjust-
ment of all the subjects of dissension, — offers which were
not accepted by France because they were considered too



FRENCH SPOLIATIONS.



91



advantageous to us. Indeed it was made by the American
Ministers with extreme reluctance, even in connection with
propositions for our benefit, and from their great desire, to
use tlieir own words, " to terminate, without further loss of
time, the present negotiation." The oifer was made, too,
with a distinct recorded declaration by the American Minis-
ters, almost contemporaneous with it, that, if " the guaranty
between France and the United States did in fact contem-
plate succors, they must have been principally for the latter
[the United States], who might need them, rather than for
the former [France], who was evidently competent to protect
herself." (Page 63S.)

From the whole course of the negotiation, it is manifest
that the treaties were considered as imposing mutual obliga-
tions, — not mutual in name merely, but in effect ; and I have
been able to discover nothing in the history of the negotia-
tion to justify the inference that the United States intended,
by finally treating without exacting indemnity for all our
claims on France, to offset indemnities to the obligations
imposed on her by the treaties, and to assume the payment
of the indemnities ourselves. The French negotiators en-
deavored to set them off against each other, for the reasons
I have already assigned; but the justice of such a set-off
was never acceded to by the United States. On the con-
trary, the American Ministers virtually refused to set them
off against each other ; and they refused, also, to assume
the payment of indemnities by the United States.

After a long negotiation, a convention was concluded on
the 30th of September, 1800. The second article, which
related exclusively to the treaties and to the indemnities, I
will read to the Senate.

" The Ministers Plenipotentiary of the two pai-ties, not being able
to agree at present respecting the treaty of alliance of the 6th of Feb-
ruary, 1778, the treaty of amity and commerce of the same date, and
the convention of the 14th of November, 1788, nor upon the indem-
nities mutually due or claimed, the parties will negotiate further on
these subjects at a convenient time ; and until they may have agreed



Q2 SPEECHES IN THE SENATE.

upon these points, the said treaties and convention shall have no oper-
ation, and the relations of the two countries shall be regulated as fol-
lows." (Page 683.)

The third article provided for a mutual restoration of pub-
lic ships taken before or after the exchange of ratifications.

The fourth article provided for a mutual restoration of
property captured, and not then definitively condemned, or
which might be captured before the exchange of ratifications.

The fifth article provided for the payment of debts con-
tracted by either nation with individuals of the other, or by
the individuals of one with the individuals of the other, or
the prosecution of the payment, as if no misunderstanding
had existed. But this article was declared not to extend to
indemnities claimed on account of captures or confiscations.

The effect of the second article of the convention was to
postpone all further negotiation in respect to the treaties and
indemnities named in it to a future day.

The Senate of the United States ratified the convention,
after expunging the second article, and limiting the duration
of the convention to eight years.

Bonaparte, as First Consul, accepted and ratified the
convention, as amended, (page 685,) with a proviso, that,
by the retrenchment of the second article, " the two States
renounce the respective pretensions which are the object
of the said article."

On the submission of the convention, as modified by
France, to the Senate, it was declared by a vote of that
body, on the 19th of December, 1801, that they considered
it fully ratified.-^

The questions which arise from the facts I have stated
are: —

1st. Whether the engagement contained in the second
article of the convention to negotiate at a future day, in
respect to the treaties and indemnities, secured to the United
States any advantage in respect to claims for spoliations ?

1 Executive Journal, Vol. I. p. 398.



FRENCH SPOLIATIONS.



93



2d. Whether the United States, by expunging the second
article, released any claims to indemnities which had been
so distinctly recognized by France as to make the United
States legally or equitably responsible for their payment
to her citizens ] And,

3d. Whether the United States, by assenting to the
proviso inserted in the ratification by France, renouncing
the respective pretensions which were the object of the
second article, imposed on herself any obligation to pay
the indemnities claimed by her citizens on account of spoha-
tions.

1st. The first question appears to be satisfactorily an-
swered by the whole history of the correspondence between
the Ministers by whom the convention was negotiated.
The French negotiators uniformly refused to acknowledge
the claim of the United States to indemnities, excepting
upon a concession of what they professed to regard as
important advantages to France by a recognition of the
treaties of 1778. The Ministers of the United States
refused to accede to these demands. In other words,
they refused to secure to the United States the acknowl-
edgment of these claims on the conditions insisted on by
the French negotiators. It was a question with them, not
of recognizing existing obligations, but reviving obligations
which had ceased to exist ; and this they declined to do.
They refused to purchase the payment of indemnities at
the price demanded by France. The result of a fruitless
negotiation was, to leave the whole controversy where it
was when the correspondence commenced ; and if the con-
vention had been ratified without expunging the second
article, there is no reason to suppose that a negotiation
at a future day would have led to any other issue. On
the contrary, I do not see how any one can rise from a
perusal of the volume I hold in my hand with the slightest
impression that a renewal of the diplomatic correspondence
between the two governments would have resulted more



94



SPEECHES IN THE SENATE.



favorably to us. The American Ministers state, in sub-
stance, in their letter giving- a history of the negotiation,
that the real object avowed by the French Ministers was
to avoid indemnities (pages 632 and 6i<3) ; that a prom-
ise to pay them at a remote period might as easily prove
delusive as it would be reluctantly made ; and that such
a promise could only be obtained by an unqualified recog-
nition of the treaties, the future operation of which could
not be varied in any particular for any consideration or
compensation whatever. It is not reasonable to suppose,
under such circumstances, that any subsequent claim to
indemnities in a future negotiation would have had any
other result.

2d. The suppression of the second article was a release
of the parties from the obligation of further negotiating
at a convenient time in respect to the treaties and indem-
nities, leaving them precisely where they were in respect
to the claims or pretensions which were the object of the
article. It is not possible to ascertain now what was the
object of the Senate in expunging this article. The injunc-
tion of secrecy has been removed from the votes, but the
debates have not been preserved ; and it appears that the
American Minister, Mr. Murray, who was appointed to
exchange the ratifications, was "perfectly in the dark on
the views of the Senate in suppressing the second article."
This was his owti language. But it is quite clear that
the omission of the second article in negotiating the con-
vention would have left the parties, in respect to the matters
contained in the article, entirely uncommitted as to their
future course ; and its suppression did no more. Thus
far no claims on France had been released, and no obli-
gations assumed by the United States.

3d. The proviso inserted by Bonaparte in ratifying the
convention after its modification by us, and our assent to
the terms of the proviso, appear at first view to have
changed the position of the parties in respect to the claims



FRENCH SPOLIATIONS.



95



or pretensions which were the object of the second article.
Those claims or pretensions were in terms renounced. But
it is quite clear that the Senate of the United States did
not regard the renunciation as changing the state of the
question ; they did not consider a new ratification neces-
sary ; they declared that they considered the convention
" fully ratified." Would they have made such a declara-
tion if they had considered the insertion of the proviso as
creating new liabilities on either side, or discharging old
ones ? It is difficult to believe so. Mr. Jefferson spoke
of it as " a clause declaratory of the effect given to the
meaning of the treaty"; and he authorized Mr. Madison
to say that he did not regard it as anything " more than
a legitimate inference from the rejection by the Senate of
the second article." (Page 7C)"5-) Mr. Livingston, our
Minister to France, spoke of it as intended '• to remove
ambiguities " ; not to give a new effect to the treaty, but
to explain its true meaning and intent. (Page 7^1')

Besides, there was no formal offset of the advantages
claimed by France as resulting to her from the treaties
against the advantages to result to us from a recognition
of the indemnities claimed. Down to the termination of
the negotiation, and, indeed, to the final exchange of ratifica-
tions, such a set-off" of one to the other was only inferable,
as I think, from the connection of the two subjects, for an
interested purpose, by the French Ministers. (Pages 64 1,
et seq.)

The Senator from Delaware has referred to the opinions
of distinguished individuals, favoring the idea that the
United States intended to release France from the pay-
ment of these indemnities, in consideration of being herself
released from the obligations of the treaties. I will ex-
amine two of the most important.

Ml-. R. Livingston, who went out to France as Minister
near the close of the year 1801, said (page 704') he consid-
ered " as a dead loss " " the sacrifices we had made of an



96 SPEECHES IN THE SENATE

immense claim, to get rid of the guaranty contained in the
treaty of alliance." And again, in a letter to the French
Minister of Exterior Relations, he said : —

" It wiU, sir, be well recollected by the distinguished characters who
had the management of the negotiation, that the payment for illegal
captures, with damages and indemnities, was demanded on one side,
and the renewal of the treaty of 1778 on the other ; that they were
considered as of equivalent value, and that they only formed the sub-
ject of the second article." (Page 717.)

Mr. Livingston had taken no part in these negotiations;
and it has been satisfactorily shown that there was no formal
exchange of pretensions, arising under the treaties on the
one side, and claims arising from spoliations on the other.
On the contrary, the benefits and the burdens under the trea-
ties were mutual, as well as the claims to indemnities. I
will proceed to show, by official documents, that Mr. Living-
ston was entirely in error in saying that claims for indemni-
ties on our side, and the treaties on the side of France, were
considered by the negotiators of equiv^alent value. Indeed
I have already proved, by the testimony of our Ministers,
that they considered the prospect of obtaining a recognition
of our claims as delusive. (Page 64^3.) But there is
stronger evidence on this point. Mr. Murray, on the 1st
of October, 1 800, the day after the convention was executed,
speaks of the indemnities as " impossible " [hopeless].
(Page 661.) On the 2d of July, 1801, he speaks of
our claim to indemnities " as not worth a quarter jjer
centumr (Page 676.) On the Sd August, 1801, he
says : " If the Senate meant, as I hope, to consider indem-
nities as worth nothing, then the business, I presume, is
closed ; " and in the same communication he alleges " the
absolute want of value in the prospect of indemnities " as a
reason for accepting the proviso inserted by Bonaparte, re-
nouncing all pretensions on both sides under the second arti-
cle. How, then, can it be said that the negotiators consid-
ered the treaties on one side, and the indemnities on the



FRENCH SPOLIATIONS.



97



Other, as of equivalent value ] The testimony proves pre-
cisely the contrary : that they considered our claims to in-
demnities as of no value, or at least hopeless ; and such was
probably the opinion of the Senate in abandoning them.

I now come to an opinion, which I will admit to be much
more formidable if it has been properly interpreted by the
advocates of the claims under consideration. I allude to the
letter of instructions from Mr. Madison to Mr. Pinckney,
our Minister to Spain, in February, 1804*. Mr. Madison
said that " the claims from which France had been released
were admitted by France, and the release was for a valuable
consideration, in a correspondent release of the United States
from claims on them." (Page 795.)

I should certainly hesitate to call in question so high an
authority as Mr. Madison in any statement relating to a
matter directly in issue, which he (Mr. M.) had fully inves-
tigated ; and I do not intend now to question this statement
in the sense in which it ought, as I believe, to be understood.
The only points of any importance in this statement are :
first, that our claims " were admitted by France " ; and, sec-
ond, that they were released, and that " the release was for
a valuable consideration, in a correspondent release of the
United States from certain claims on them," It is to be
borne in mind that Mr. Madison's reference to the subject
was for the purpose of sustaining a position taken by our
government in a negotiation with a third power, years after
the convention of 1800 was concluded ; and some allowance
is to be made for strength of expression. With regard to
the first point, I have said that there never was, as I could
find, after the war-measures adopted by us in 1798, an un-
conditional admission by France of our claims for spoliations.
She assented to the principle of mutual compensation for
injuries, but with a distinct assertion of her claim to a recog-
nition of the treaties. It was only on the condition of such
a recognition that she was willing to inquire into the claims
of both parties for injuries, national as well as individual,

13



98 SPEECHES IN THE SENATE.

with a stipulation of mutual indemnity. This, I believe, was
the extent of her admission, and it was a very qualified one.
With regard to the second point, — the release, — if Mr.
Madison intended to say, that, in the adjustment of our diffi-
culties with France, there were mutual claims which were
mutually abandoned, no exception could be taken to his
statement. And certainly, in any other sense, it would
neither accord with the facts I have stated, nor with the
declarations of the negotiators themselves. When converted
into a sanction of the idea that there was a set-off of indem-
nities claimed by the United States against our treaty-obliga-
tions to France, and iuto an argument in favor of the posi-
tion that we were bound to assume the payment of these
indemnities, it made Mr. Madison's statement entirely in-
consistent with wliat our negotiators said and did, and with
the inferences fairly to be drawn from his own subsequent
conduct, as I will endeavor to show hereafter. And I will
add here, that I have not been able to find a word in any of
Mr. Madison's writings, or those of Mr. Jeflerson, counte-
nancing the idea that these claims constitute a just demand
against the government,

I do not much like to deal in technicalities. I prefer, as
a general rule, to rely on the deductions of common sense,
and on maxims so simple and so universally received as to
make their application plain to the most ordinary understand-
ing. But I cannot forbear to say that a release for a valua-
ble consideration and a set-off seem to me, in this instance,
convertible terms. A set-off implies an unqualified admis-
sion of claims on both sides, and a mutual agreement to
balance the one against the other. I find, in this case, none
of these unquestionable evidences of an exchange of equiva-
lents, — no unqualified admission of our claims for spoliations
by France, — no unqualified admission by the United States
of treaty-obligations to her, — and no agreement to set them
off against each other. On the contrary, we expressly
denied the treaty-obligations, and France expressly refused



FRENCH SPOLIATIONS.



99



to inquire into indemnities, except on condition of receiving
from us the very admission we declined to make.

I regard this case, under all its aspects, as one in which
the parties had mutually abandoned their respective preten-
sions. But if it be assumed that there was a set-off", I shall,
without admitting the assumption, insist that it was not of
indemnities on one side against treaty-obligations on the
other, but of indemnities against indemnities, treaty-obliga-
tions against treaty-obligations, — mutual, if not equal, — not
bargained for, one against the other, as an exchange of
equivalents, but relinquished, renounced, abandoned, on either
side, from the utter hopelessness of obtaining a recognition
of them on the other. Such seems to me to be the only
legitimate conclusion from the whole history of the negotia-
tion, and such was the language of the proviso by which
the pursuit of these " respective pretensions " was " re-
nounced."

That there was an abandonment of claims on France for
spoliations committed on our commerce, I have never denied.
There was a similar abandonment of claims on her part, on
account of captures made by us during the hostilities which
existed between May, 1798, and the conclusion of the con-
vention of 1800. But whether the United States are, in
legal or equitable obligation, bound to satisfy the claims thus
abandoned on our part, is the question which we are called
on to decide. On this point I have not the slightest doubt.
I believe there is no instance in the history of our diplomacy
in which the satisfaction of injuries has been so zealously
or faithfully pursued. For five years, from 1793 to 1798,
we pursued it by negotiation, — earnest, urgent, persevering
negotiation. When all peaceful means had failed, we resort-



Online LibraryJohn A. (John Adams) DixSpeeches and occasional addresses (Volume 1) → online text (page 9 of 40)