33D CONG....2D SESS.

have been so long protracted, and that, the day before the last ballot, he declared, among his political friends, it should be brought to a close the next day. He thought that the delay would cause a dangerous excitement in the country. The evening before the last ballot was taken, General Morris informed me that he should not be in the House the next day, and, in consequence, Mr. Jefferson would be elected. He said he was induced to secede by the repre<entations and at the request of Mr. Bayard, who thought that he-General Morris-could secede with greater propriety than a person who was the only Representative of a Federal State, and Vermont, at the time, was nearly equally divided on the subject; so that I always considered Mr. Bayard as the means of Mr. Jefferson's election, and I believe he was so considered by many others.

That Mr. Bayard might have sportively said to General Smith what is attributed to him, is possible; and, if so, General Smith would not probably remember it. But if such conversation was held with corrupt views, for the purpose of influencing him, it is impossible he should have forgotten it. I have no belief that Mr. Bayard would seriously have made what amounts to a proposition to corrupt another.

I am, with great regard, your obedient servant,

ELIJAH PAINE.] Mr. PEARCE. Mr. President, the Joint Committee on the Library, of which I am a member, were directed by an act of Congress to cause the Jefferson papers to be published. These papers, sir, were very voluminous. They consist of one hundred and thirty-four large bound volumes of manuscript, besides an immense mass of loose papers. It was manifestly impossible for the Committee on the Library, individually, to perform the duties of editor. They therefore employed a gentleman of talent and character, and directed him, generally, to make such a selection from the papers of Mr. Jefferson, as were necessary and proper to exhibit fairly and fully his opinions, character, and public

course.

Vindication of the Late James A. Bayard.

cumstances in perfect recollection; and, sir, perhaps never, in the whole history of our country, from the 4th of July, 1776, to the moment when I am addressing the Senate, were the American people more excited than at that time. Independent of the radical difference in the character of the two men who were presented to them, well known and well appreciated, there was a great principle involved in that controversy-the principle of the distinct enunciation of the determination of the American people that Thomas Jefferson should be their President. Now, sir, when the event has passed by, with all its feelings and passions, history has ratified and commended the action of the House of Representatives. There is not a man at this day who, in looking back to the history of that period, and the subsequent events, will pretend to say that Colonel Burr should have been chosen President, and Mr. Jefferson set aside. No man, knowing the character of Colonel Burr, as evinced in his conflict with General Hamilton, can tell what would have been the consequences of such an event. Mr. President, you cannot look at the publications of European statesmen-and they are coming to us every day, in the most authentic form, in the papers left behind themwithout finding similar errors into which they have been led. Mr. Jefferson was led into this error in the same way as they were into similar ones in regard to their countries. I repeat, however, the vindication of the Senator from Delaware to-day is complete and satisfactory; and, if Mr. Jefferson were here, he would be the first to say so.

Mr. President, I add my full concurrence to what has been said by the honorable Senator from Maryland. I had the honor, when a youth, to see Mr. Bayard often. I lived, for a while, in his own town. The impression which I derived then, and it was the universal sentiment of the country, was, that he was a man of the highest honor and probity, of great talents, integrity, and intelligence, and of the purest patriotism. I consider that one of the most glorious acts of his life when, in opposition to the feelings of his own party, he brought over the State of Delaware to the support of Mr. Jefferson. If a different result had followed that controversy, this Union would have been shaken to its very center. I do not recollect that my honorable friend from Delaware alluded to the man who now dwells on my memory, Lewis Morris, of Vermont, who, according to the best of my recollection, had a principal share in the arrangement on the part of that State. I am not sure that he voted at all; but if he did it was for Mr. Jefferson. This, it will be recollected, was the action of distinguished Federalists, opposition to the sentiments of a great portion of their own party.

I regret very much that, during the course of that publication, the attention of the committee was not called to the items in the "Ana," to which the Senator from Delaware has referred. Certainly, sir, if that had been the case, I should have deemed it my duty, and, I presume, the committee would have deemed it theirs, to direct the editor, either to omit the charges referred to, or, what would perhaps have been better, to accompany them with the refutation which had been given to the public. I well recollect the exposition made in the Senate of the United States, to which the Senator has referred, and I have read more than once the pamphlet issued by the Senator and his brother. I considered the accusation of Mr. Jefferson as being as fully refuted as it was possible for any accusation to be refuted by human testimony. Without the authority of his name, it would have rapidly sunk into oblivion. With the authority of his name, it has utterly failed to impair the reputation of one who was eminent as a statesman and citizen, and distinguished, not only for ability, but for enlightened and earnest patriot-in ism, and for a public and private honor which was without a stain. That character Mr. Bayard maintained, not only in his own State, where such a reputation as I have described was always accorded to him, but throughout the Union. The tribute due to exalted character was not only paid to him by his own political party, but in the cordial acknowledgements of those to whom he was politically opposed. His ability and patriotism could not have been more highly indorsed than they were by the chief of his political opponents, Mr. Madison, who appointed him one of the commissioners to Ghent, to negotiate peace with Great Britain.

I have only to repeat, sir, my regret, that I was not informed, during the progress of this publication, that these accusations were about to be included in the congressional edition of Mr. Jefferson's papers.

Mr. CASS. Mr. President, I have listened, with great interest, to the vindication which we have heard from the honorable Senator from Delaware, and I am sure that, if Mr. Jefferson were now here to hear the statements made by that honorable Senator, he would be the first to say that the memory of the distinguished statesman who has been alluded to, had been unjustly reflected on. Mr. Jefferson's high character, his truth, and his frankness, would have led him, as soon as any other man, to disavow any erroneous reflections. The reports, on which the Senator from Delaware has commented, undoubtedly orig. inated in that period of excitement which attended the presidential election of 1801. I bear the cir

Mr. President, there is a beautiful passage in the life of Mr. Bayard-a lesson for every American. He belonged to, I may almost say he was the head of, that great party which, from the foundation of the Government, has contended with the Democratic party for the administration of the affairs of this country. He was among the most prominent and honored men of that party which opposed the war of 1812, no doubt from very conscientious motives. But, sir, in the darkest crisis of the war, when it was thought best by Mr. Madison to send an embassy to England, who was selected? This very man, against whom these imputations were circulated and sent to the ears of Mr. Jeffer

son.

Mr. Jefferson's friend and successor, and confidential adviser, Mr. Madison, selected him to accompany Henry Clay, Albert Gallatin, and the other eminent men who negotiated the treaty of peace. That was the stamp of his contempo raries on his character. He went there in the view of the whole world, and, to my knowledge, he had an honorable share in the preparation of the articles of peace. Those commissioners conducted themselves like Americans. They would not give up one inch of territory. When England proposed to run a line south of Sandusky bay, taking off a part of the State of Ohio, and all north of it to the Mississippi river, under the pretense that they wanted that territory for Indian country, what did the commissioners say? That they had not power to yield one foot of the territory of the United States, and that one inch of it they never would yield. That ought to be a lesson to Ameri

SENATE.

cans in all time to come. Sir, the memory of such men is the treasure of our country. Let us protect it with sacred vigilance.

Mr. HUNTER. Mr. President, the Senator from Delaware has discharged a pious duty, and discharged it well. He has rescued the memory of his father from an imputation which might have tarnished it, and shown that he was guiltless of any such offense. His, sir, was such an offering as filial affection might be glad to render to the dead. It was not only his right, but his duty, to have risen, and to have done what he has this day done.

But, sir, while he feels it to be his duty to take care of the reputation of his father, I may be allowed, perhaps, to say a word in reference to a great name, which is deservedly cherished in my own State. That Mr. Jefferson believed what he recorded, I think no man can doubt who has ever studied his character or his history. That he was led into an error, and very naturally led into an error, under the excitement and the passions of the day, I think has been very clearly shown. But, sir, that he is chargeable with culpability for preserving and for presenting to posterity such memorials as those which he has left behind him, I think, cannot be justly maintained, when we come to consider the importance and the value of such historical documents. That they should contain errors is natural and probable enough; and that no man would have regretted those errors more than Mr. Jefferson, if he had been aware of them, I believe I may say, and expect to be sustained by the evidence of his life and his career.

Sir, to say that it is wrong for such a man as Mr. Jefferson, who figured in scenes so important, to leave behind him any memoirs of a personal character, or a daily record of the proceedings of the times, would be to say that we should have denied to the world such memoirs as those of Sully, and Clarendon, and De Retz, and Burnett, and many others to which I could allude, and which we would not willingly lose. Sir, of all sorts of historical documents, these are among the most important. I may say, also, that this kind of history is especially liable to error, and to errors which are not easily avoided. That such mistakes are to be found in Mr. Jefferson's writings, I admit. That the Senator from Delaware has proved that he was mistaken and deeply erred in this case, I admit; but whilst I say so, I must be allowed to declare that I do not believe Thomas Jefferson ever recorded that which he did not believe to be true, either in reference to the character of a fellow-man, or in regard to any event of historical importance. I must, also, be allowed to say that, although writings of this character may be liable to such errors, yet it does not follow that it was improper in a man who saw what he saw, and who bore such a part in the public affairs of the world as he did, to leave such records as must be among the most valuable monuments of human history; for the good more than compensates for the evil which may be thus done. Sir, they will be recurred to hereafter by posterity, and they will be received as one of the legacies from him for which he will be honored and remembered.

Mr. MASON. Mr. President, I listened, as did all the Senate, with deep interest and emotion to the explanation which fell from the very able Senator from Delaware, in vindication of the memory of his father. I must be permitted to say, sir, even in his presence, that, while it illustrated the filial virtues of his own heart, it betrayed an able and well-balanced intellect. I can appreciate the painful necessity under which he was placed while discharging this duty, achieved, I will add, with such signal success in our presence. It would be gratuitous in me to say that the evidence, which he has been enabled to adduce from the mouldy records of time, has been conclusive.

Sir, it is unfortunate that there was such a necessity. I agree with my friend and colleague, and with the honorable Senator from Michigan, that, if we could recall the actors of those days, the distinguished statesman who recorded those pages would have been the first to obliterate them. The feelings which he carried to his grave in his latter days are strikingly depicted in the letter which was read by the Senator from Delaware, one of his last letters to Mr. Adams, who pre

Sir, Thomas Jefferson has left his impression upon the age in which he lived, not only in this broad land, but at home, in his native State. No man did more to mould, to cast into shape, and form the Government which now prevails in this country-a Republican Government, resting upon popular institutions. The traces of his mighty intellect are everywhere in the history of the country. At home, after he had retired from public life, he gave his whole time, and all his thoughts to the institutions of his native State, and to the promotion of her welfare.

Sir, the James A. Bayard of that day has passed into history, and it may be said of him, that he bore with a winning grace that high and lofty name, which the Bayard of Dauphiny, had signalized in the fifteenth century-the chevalier who, with the virtue of Scipio blended the graces of Alcibiades, who lived without fear, and died without reproach.

Now, sir, one word as to what has fallen from the Senator from Maryland, in reference to the publication of the papers of Mr. Jefferson. It was at my instance, I think, chiefly, that the very learned and able gentleman who was appointed by the committee to edit this publication, was selected; a citizen of Virginia, then and still a professor in old William and Mary-our renowned and earliest seat of learning-Professor Washington. He conversed with me frequently and freely while he had this work under his charge; he conversed equally, I believe, freely with the honorable Senator from Maryland, who was then, as now, chairman of the Committee on the Library, to whom the duty of publication was intrusted. Professor Washington considered it his duty, and in that, I believe, he was sustained by the honorable Senator from Maryland-certainly he was by me-to publish everything which would contribute materials for future history, or which would show the political opinions and tenets of Mr. Jefferson. I presume there was no consultation with anybody as to the publication of the Anas. I never heard of it. My impression is, however, that these Anas had been published in the private collection that was printed by Mr. Jefferson's representatives after his death, and had gone to the world in that form, and if the inquiry had been made of me, or of the honorable Senator from Delaware, now before me, [Mr. BAYARD,] upon the propriety of a reprint of this book, it would have been a question of difficult solution; because, if they had been withheld, at a future day it might have been supposed that they were suppressed from tenderness to the memory of the gentleman who was assailed. A most unjust and unfounded inference might thus have arisen, had they been suppressed. I take it for granted, and if I am wrong the Senator from Maryland [Mr. PEARCE] will correct me, that the attention, neither of the committee or of any other, was called by Professor Washington to the propriety of publishing the Anas with the other papers. I therefore am not in possession of his reasons for having included them; but I can very well understand, knowing that gentleman, as I do, to be a man not only of correct taste, but of sound and judicious head, that if the question occurred to him as to the propriety of a reprint, he would have solved it by saying, "If it is withheld, the act may be deemed equivocal, and unfounded inferences may be drawn."

Mr. President, let none fear that what is recorded in those Anas, after the refutation we have received to-day, will leave the slightest shade upon the memory of Bayard with posterity or in his

IN THE HOUSE OF REPRESENTATIVES,
January 25, 1855.

The House being in the Committee of the Whole on the state of the Union

Mr. ORR said:

Mr. CHAIRMAN: There is difficulty in arriving at the exact state of facts in this case upon which to predicate a correct conclusion. The mists of fifty long years have shrouded them in obscurity, veiled them with uncertainty; this is especially true as to the facts relied upon to resist the admissibility of this claim. No one has been specially interested in collating and preserving them. The facts to sustain the claims have been preserved with scrupulous care. The claimants and their hired agents have pertinaciously pressed the consideration of this claim upon Congress for half a century, and not only has every fact been preserved, but every argument and consideration which human ingenuity could invent has been pressed with no less pertinacity. Not one, but many editions of every report and speech in favor of the claims have annually been reproduced. No single member of either House of Congress, for many long years, has failed to receive all the speeches and documents ever made in behalf of the claim, and the result has been to form an opinion exclusively upon ex parte representations. These appliances had their effect on me when I first entered Congress, though I remembered that Calhoun, McDuffie, and other leading statesmen of my own State, had denied, in the strongest terms, the validity of these claims. These ex parte representations appeared so just that I felt great surprise that the American Congress had, for so long a period, obstinately denied common justice to the sufferers from French spoliations. It led to an examination of the history and merits of the claims, and, when ended, I felt that our predecessors had not repudiated their validity without abundant cause. To my surprise, I found that many of the supposed facts in favor of the claims had no foundation in truth. It has been alleged by the claimants that Mr. Giles reported in their favor. A brief history of congressional action on this subject will serve to correct this and many other misrepresentations.

The "memorial of sundry merchants and traders" brought this subject to the consideration of the House, and a select committee, of which Mr. Giles was the chairman, submitted their report on the 22d April, 1802. After stating the facts very succinctly, and without giving, directly, any opinion, he sums up the question in a few brief words:

"Upon the whole view of the case, the committee submit it to the House, to determine whether the Government of the United States be in any respect bound to indemnify the memorialists, and whether there be any ground for discrimination between the cases of losses sustained before the acts of the 28th of May, 1798, the 7th of July, 1798, and the 9th of July, 1798, and cases of losses sustained after those periods."

Can any fair or just interpretation of this paragraph authorize the declaration that Mr. Giles reported favorably on the claims. This is the language he uses, and even that is now distorted into a favorable opinion on the merits of the claim.

In 1807, Mr. Marion, from a select committee, made a favorable report, without stating, however, the grounds fully, and without committing himself on the question, whether the spoliations committed after July, 1798 were subject to indemnity. Mr. Giles' report was acted on in the House, the vote in favor of paying the claims was yeas 33, nays 54.

These claims slumbered on from 1807, and we hear nothing of them until March, 1818, when Mr. Roberts, of the Senate, from the Committee

Ho. OF REPS.

of Claims, made an adverse report, which is a thorough and lucid exposition of the whole question. His report concludes with the following recommendation, which was adopted by the Sen

ate:

"Resolved, That the relief asked by the memorialists and petitioners ought not to be granted."

On the 31st January, 1822, Mr. Russell, of the House, from the Committee on Foreign Affairs, made an adverse report, which was agreed to. On the 24th March, 1824, Mr. Forsythe-and I need not call the attention of the committee to the high qualities of head and heart that distinguished this favorite son of Georgia, for his history is a part of the records of this country-made an adverse report, concluding in the following emphatic language:

"The committee are not satisfied that the French Government ever admitted the justice of the claims of the petitioners, or ever intended to pay them; that the Government of the United States used every effort-even to war itselfto rescue the property of American merchants from the lawless violence of France; that its efforts to procure payment were not discontinued until it was obvious that there was no hope of success; that this Government never received from France any equivalent for the claims of Americans on France."

Again:

"To justify their claims upon the United States, the petitioners assume that France was right, and their own Government wrong; that France was prepared to make a just reparation for the outrage committed under her own laws, until released from her obligations by the United States, who, faithless to their trust in the first instance, and have been regardless of the obligations of justice ever since! Assumptions not consistent with truth, nor creditable to the patriotism of those who make them.”

On the 8th of February, 1827, Mr. Holmes, of the Senate, made, from a select committee, the first elaborate favorable report. So long as the memorials were considered by the standing committee of either House, so long these reports were adverse, but when sent to a select committee, composed, by universal parliamentary usage, of the friends of the measure to be considered, we find it assumed and maintained that this Government had made itself responsible for the indemnity alleged to be due by France to our citizens, but these claimants coming before the Senate, under the auspices of a favorable report, failed to secure from that body its favorable action. Appended to Mr. Holmes's report, is a statement from the Department of State, showing the names of vessels, their owners, and in some cases the amount of the spoliations. It appears the number on file is four hundred and forty-four. One fifth of that number shows the probable amount of the loss to be $2,235,702. Assuming that they will be a correct average, the entire amount of the spoliation amounted to $11,178,510. Of these figures I propose to make some use in the subsequent part of my argument. A select committee in the Senate through Mr. Webster, its chairman, made a favorable report in 1834, and the bill accompanying it, after an elaborate debate, which drew out Messrs. Calhoun, Bibb, Wright, Benton, and other distinguished Senators in opposition, passed the Senate by a small majority for the first time since their prosecution commenced, running through a period of thirty-two years. Subsequently, and prior to 1846, reports favorable and adverse were submitted, but never definitely acted upon. In 1846, a bill passed both Houses of Congress, and when it went to President Polk for his approval, it met from him a prompt veto. In his veto message, he says:

"It is scarcely probable if the claim had been regarded as obligatory upon the Government, or constituting an equitable demand upon the Treasury, that those who were contemporaneous with the events which give rise to it, should not long since have done justice to the claimants. The Treasury has often been in a condition to enable the Government to do so without inconvenience, if these claims had been considered just. Mr. Jefferson, who was fully cognizant of the early dissensions between the Governments of the United States and France out of which the claims arose, in his annual message in 1808, adverted to the large surplus then in the Treasury, and its probable accumulation, and inquired, whether it should lie unproductive in the public vaults, and yet these claims, though then before Congress, were not recognized or paid. Since that time, the public debt of the Revolution, and of the war of 1812, has been extinguished, and at several periods since, the Treasury has been in possession of large surpluses over the demands upon it. In 1836, the surplus amounted to many millions of dollars, and for want of proper objects to which to apply it, it was directed by Congress to be deposited with the States."

These claims have been urged with unabated

33D CONG....2d Sess.

zeal since the veto, and we are here to-day engaged in their consideration. Such, sir, is a brief outline of their legislative history, sketched for the double purpose of exposing the misrepresentations of interested friends, and that the country may understand with what little favor they were viewed by our predecessors, for a period of two and thirty years, after their introduction into this Hall. I caution gentlemen to look to the original documents for the facts; do not rely upon the loose statements, though in print, of the friends of these claims for the facts. Your constituents may require you to explain a vote which absorbs $5,000,000 from the public Treasury, and will not be satisfied, if given under misapprehension, when you had reliable information that is perfectly accessible.

I now propose, Mr. Chairman, to state briefly the origin of these claims, and to examine the grounds upon which it is insisted that this Government is liable for their payment.

On the 6th of February, 1778, treaties of amity and commerce, and of alliance, were concluded between the United States and France. By these treaties, each party secured to itself the right of fitting out vessels, condemning and disposing of prizes, enlisting soldiers or seamen in the ports of the other. It was stipulated that the enemies of either Power should be denied these privileges. It was further agreed to reduce that class of goods known as contraband of war, to intruments and munitions of war, allowing unrestricted commerce in all kinds of provisions, cloths, timber for shipbuilding, anchors, and many other articles under the law of nations, as then accepted, which were contraband, and liable to seizure and confiscation. The treaties also contained mutual guarantees. The United States guaranteed to France, against all other Powers, "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 France guaranteed 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 and conquests that their Confederation may obtain from any of the dominions now or heretofore possessed by Great Britain in North America." These guarantees were declared to be "forever." Such, sir, is a brief outline of the stipulations contained in the treaties.

Late in the year of 1792, war broke out between England and France, and General Washington, then the President of the United States, determined that our Government, which was still weak, should maintain the strictest neutrality. Neither himself nor his Cabinet construed the treaty in such a way as to make us liable, on the guarantee, in an offensive war. Mr. Genet, the French Minister, declared to Mr. Jefferson, and to the President himself, the satisfaction of his Government at our position of neutrality. He commenced fitting out ships, arming them and enlisting our citizens for the French service. Great Britain complained, and took the ground that such privileges to a belligerent were wholly inconsistent with neutrality; and it was true, according to well-defined principles of international law. We yielded to these remonstrances, and refused to continue the permit to France. This decision of our Government was acquiesced in after some hesitation, and it was not long until France discovered that a strict interpretation of the treaty was resulting in great benefit to Great Britain. Our commerce on the high seas, so far as Great Britain was concerned, was regulated by international law, whilst the treaty regulated it as to France. France then saw that the goods of her citizens were liable to seizure by British cruisers in our bottoms without any indignity to our flag, and that British goods in our ships could not be seized by French cruisers, because her treaty forbade it. So, too, provisions and other contraband goods, could be carried by our ships to English ports, and French cruisers were not authorized to molest them, under the treaty, whilst the law of nations gave no such exemption to contraband goods in neutral ships entering French ports. England, therefore, secured most of the provisions carried by our vessels, and in lieu of confiscation, fixed and paid its own price. The effort of France, then, to extend the immunities of commerce on the high seas, was

French Spoliations—Mr. Orr.

greatly aiding her enemy, and that Government determined that we should no longer enjoy free trade with her enemy-as stipulated by the treaty. Growing restive under its operations, without consulting us, in May, 1793, France repudiated one of the material stipulations of the treaty, and declared "that the French people are no longer permitted to fulfill towards the neutral Powers in general the vows they have so often manifested," and "making its operation retrospective to the date of the declaration of war and prospective to the period when the enemies of France should cense the depredations of which it complained," and established the rule-not as laid down in the treaty, but in violation of it-that French cruisers had the same right to seize and condemn goods and merchandise in American vessels as British cruisers. From the date of this decree commenced a series of depredations on our commerce which entailed much loss upon our merchants, and which defied our treaty rights. It continued until September, 1800, when a new treaty of peace and amity was concluded between the two Govern

ments.

This, sir, brings me to the consideration of one of the material questions involved in this discussion: What action was taken by our Government to stay these spoliations on the commerce of our citizens, and what diligence was exercised in efforts to secure indemnity? The Government did not look with cold indifference on the sweeping destruction which overtook our merchants. From 1792 up to 1798 the French Court resounded with appeals from our Ministers for justice. We pointed to the broken treaty and violated faith of France; we remonstrated; we expostulated; we sent special envoye, who were insultingly driven from the country. All, however, yielded no fruit. We were refused indemnity for past outrages, and denied security for the future. This Government will never again, I trust, submit so passively for six long years to such a series of humiliating indignities as France, in the might of her power, chose to impose upon us in the weakness of our youth. For whom were these indignities brooked? To enforce and secure whose rights were these efforts made? I answer, sir, the claimants under this bill. The enormities of the French nation would have justified a declaration of war long before 1798; but there were ties connecting us with that people not easily dissevered. France had given our fathers the powerful aid of her namematerial aid in men and money, in the dark night of the Revolution, and gratitude plead for the longest forbearance. It was extended with no stinted hand; but, finding that the plunder of our citizens had become the fixed purpose of France, our Government, by congressional legislation, determined to authorize a retaliatory defensive policy, which, in a few brief months terminated, as I shall show from the records, in war-a war having its inception in the determined purpose of our Government to secure satisfaction for the spoliations, now the subject-matter of these very claims we are called upon to pay.

Where an injury is done a citizen by a foreign Government, it is the duty of that Government entitled to his allegiance to seek reparation. If denied, it must then determine whether it will go to war or not. Sometimes the general interest of the whole State would be so greatly prejudiced that the nation may properly decline an appeal to

arms.

Ho. OF REPS.

at once that if he conceded this fact, no tenable ground was left for these claimants to stand upon. I will demonstrate, to my own satisfaction, at least, and I hope to the satisfaction of the committee, by various acts of Congress by the declarations of our Ministers who negotiated the treaty of 1800, by the declarations of the French negotiators, and by the position assumed by the French Government during the negotiation-that war actually existed between France and the United States, and that France denied all liability for indemnity to our citizens on that account. The initiative to the war was an act passed by Congress the 18th of May, 1798. It authorized the capture of all armed vessels of France which had committed depredations upon our commerce, or which should be found hovering upon the coast for the purpose of committing such depredations.

The second act was passed June 25, 1798, and authorized the merchant vessels of the United States to arm and defend themselves against any such restraints or seizures of vessels sailing under French colors, to repel force by force, to capture any French vessel attempting search, restraint, or seizure, and to recapture any American merchant vessels which had been captured by the French.

On the 28th of June, 1798, a third act was passed, authorizing the forfeiture and condemnation of all French vessels captured in pursuance of the preceding acts, and provided for the distribution of prize money, and for the confinement and support, at the expense of the United States, of prisoners taken in captured vessels! Prisoners! and yet there was no war!! And here a most obvious distinction must be made in the positions of France and England, and the United States. The two former were at war; we were neutral. They being at war, claimed the right of seizure; and confiscation of all contraband merchandise which was admissible by the then settled practice of nations, the same authority authorized the seizure and appropriation of enemies' goods in neutral bottoms. If there had been no treaty with France, we would have had no just cause of complaint, for we would have violated our neutral position by dealing in contraband goods. But this act of Congress authorized our ships to restrain, seize, and confiscate French commerce in the same manner which was being done by England, one of the belligerents. No international law would have justified it without authority of Congress. If Congress had not authorized it, an attempt by the crew of one of our ships to seize a French vessel would have been piracy. The supreme power of the State authorized it, and in doing so made war.

But, sir, the next act to which I shall refer, shows that it was the purpose of Congress to throw off the quasi war and assume a position of open, undisguised hostility. On the 7th of July, 1798, an act passed declaring that the United States were of right free and exonerated from the stipulations of the treaties and consular convention concluded with France, and that the same should not henceforth be regarded as legally binding on the Government and citizens of the United States.

Our Government was fully justified in this proceeding, for France had, by solemn decree, renounced the binding obligation of the treaty in its most material and important provisions; and the conduct of its citizens was consistently conformable in practice to the decree of May, 1793, to which I have already adverted. Congress very properly declared the treaty no longer obligatory on the United States.

But this act develops, most prominently, a wide distinction between these claimants, who now all unite in a common application for indemnity. It requires only to be stated-not argued to perceive the distinction. Every seizure made by French cruisers after the 7th July, 1798, of American vessels having on board merchandise contraband of war, (and most of them were freighted with provisions, ship timbers, &c.,) as well as English merchandise, whether contraband or not, were lawful prizes for the French; and if they could be legally seized and forfeited, what claim resulted to the American merchant or ship-owner against France? It was the treaty which made the seizures illegal, and when our merchants' own Government declared it abrogated, pray what right, under the treaty, remained to the citizen? If it should be determined that indemnity be due to any

33r CONG....2D SESS.

of these claimants, I demand to know upon what basis spoliations committed after the abrogation of the treaty by the American Congress, can be recognized; for they certainly never constituted a legal or equitable demand against the French Gov

ernment?

Is

The fact is fully established that several hostile actions actually occurred betwen the armed vessels of the two nations, and several captures were made of French vessels, both by public and private armed vessels of the United States, which were condemned and sold as lawful prizes. The number captured was about eighty. Of the value of the prizes I have no information. Who were the beneficiaries of these prizes? Doubtless, the merchants; perhaps, some of the claimants. If so, have they abated their demands to an amount equal to these reclamations?

Does the legislation I have recapitulated, show that war existed between the two countries? What single element is wanting to make it open, undisguised naval warfare? Armed vessels meet on the high seas, they engage in battle, use every instrument and missile of death to destroy each other. The deck is strewn with the dead and dying, the heavy timbers in the vessel are riven by balls and shells, the colors are hauled down, the crew become prisoners of war, the vessel is brought into port, the vessel and cargo, consisting perhaps of French silks, is sold, and the proceeds distributed amongst the owners and the triumphant crew. Did our vessels do more or otherwise in the Revolution-in the war of 1812?

French Spoliations-Mr. Orr.

hostilities that hence there was no war. At that time the United States were in no condition to send troops to France, the country was still groaning heavily under the pressure of the debts and sacrifices of the revolutionary war, nor was France more fortunate than ourselves. That Government was engaged in a desperate conflict with England and the continental Powers, and their troops could not be withdrawn from the sanguinary fields of Europe. Land engagements are not indispensable to constitute a state of war.

I regard the fact of the existence of war so important to the just determination of these claims, that I proceed to other proofs. When the nogotiations commenced, which led to the treaty of 1800, both parties proceeded on the basis that peace had not been destroyed, but before their labors ended, the preceding hostilities were considered war. The journal of the American Ministers, of the 12th September, 1800, says:

"The President of the French commission declared that if the Government should think proper to instruct them to make a treaty on the basis of indemnities, and a modified renewal of the old treaties, he would resign sooner than sign such a treaty; adding, that if the question could be determined by an indifferent nation, he was satisfied such a tribunal would say that the present state of things was WAR, on the side of America, and that no indemnities could be claimed. The two other commissioners made similar declarations."

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fied by the Senate. When the fellow-citizens of these claimants cheerfully submitted to greatly augmented taxation, to maintain a war asserting their rights, giving them the highest redress, and failing to secure payment on the conclusion of peace, are they now to be taxed again to make up all the losses of these claimants? Neither justice nor the law of nations require it, and no parallel can be found where any Government on the globe has, under such circumstances, indemnified the losses of its citizens out of its own exchequer, after making an unsuccessful war to enforce their rights. I proceed now, Mr. Chairman, to examine the grounds upon which these claimants mainly rely for indemnity. If war existed, I have shown the claims were extinguished. The claimants deny that any war existed between the two nations, and insist that the treaty of September, 1800, actually released, for a valuable consideration, to the United States the claims of our citizens against France. If this were true, then there is merit in this bill. The second article of the treaty, and its subsequent rejection by the Senate, it is contended, furnishes evidence that France acknowledged the liability, and its rejection by the Senate abandoned the claims to rid us of the obligations of guaranty contained in the treaty of 1778. The second, or rejected article, is in the following words:

"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 No

How emphatic the declaration of the French Ministers. The present state of things was war, and claims for indemnity therefore wholly inad. missible. It has been alleged that France acknowledged her liability to pay for these spoliations.vember, 1788, nor upon the indemnities mutually due or Does not the language of her Ministers entirely refute and dissipate any such assumption? Our own commissioners coincide with the French. After the treaty had been signed they wrote the Secretary of State as follows:

"Nor is it conceived that the treaties between the United States and France have undergone a more nullifying operation than the condition of war necessarily imposes. Doubtless the congressional act authorizing the reduction of French cruisers by force, was an authorization of war, limited, indeed, in its extent, but not in its nature. Clearly, also, their subsequent act declaring that the treaties had ceased to be obligatory, however proper it might be for the removal of doubts, was but declaratory of the actual state of things; and certainly it was not from an exercise of the constitutional prerogative of declaring war that either of them derived validity."

Again, our commissioners say:

"All hope of obtaining indemnities, with any modifications of the treaties, had to be abandoned, and they de

termined, by a temporary arrangement, (the treaty of September, 1800,) to extricate the United States from the war, or that peculiar state of hostility in which they are at present involved, save the immense property of our citizens now depending before the council of prizes, and secure, as far as possible, our commerce against the abuses of captures during the present war."

Have I succeeded, Mr. Chairman, in proving, from the acts of Congress, actual_hostilities and captures, the declarations of the French authorities, and the admissions of our own commissioners, that war existed between the United States and France? And, if we went to war, whose rights was it to assert, whose wrongs to avenge? These claimants. It was their claims, and not broken treaties, that led to the shedding of blood, the raising of armies, and the levying of taxes. Mr. Cambreleng, in his report, recapitulates what we have already done for these claimants:

"We renounced our treaties; authorized our merchantmen to arm; ordered the capture by our public and private armed vessels, and the condemnation of all armed French vessels; loans, appropriations, and taxes for the purposes of war, amounting to more than twelve millions of dollars; ordered six seventy-fours, and six sloops-of-war to be built; the raising of thirty-six regiments and two battalions; and, in case of invasion, the President was authorized to call into the field an army of seventy-five thousaud men."

claimed, the parties will negotiate further upon these sub

jects 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," &c.

This article was stricken out by the Senate, and the following provision was inserted:

"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,"

Does the article furnish the evidence claimed for it? I cannot so construe it. On the contrary, it furnishes strong inferential, if not positive, proof that France repudiated the liability, and intended to put itself in a position where it might, through all time, refuse further even to negotiate. When were these four points of difference to be, not adjusted or paid, but negotiated upon? At a "convenient time." Such language, in an official paper, prepared by such a man as Talleyrand, can mean nothing else than a perpetual repudiation by France of all liability for these spoliations; and Mr. Murray, one of our commissioners who exchanged the ratifications, fully corroborates this conclusion. He says, with reference to the rejected article:

"If the Senate meant, as I hope, to consider indemnities as worth nothing, the business, I presume; is closed."

Talleyrand, the negotiator, the subtle, sagacious Talleyrand, who never did his work awkwardly or unmeaningly for his Prince, interpreted the true intent of the second article to be an indefinite postponement of the four open points; and when that article was expunged, he said it was renounced "as susceptible of producing disquiet in future by promising nothing but an ulterior and discordant negotiation.' When the article was rejected, it is true, the further prosecution of the claims was renounced by our Government, not for a consideration, but because France pertinaciously and firmly refused to acknowledge her liability after we had gone to war. But what paragraph in the second article secured anything to the claimants? The extent of concession to them is, that, ata convenient time, the two Governments will further After all these steps had been taken, the whole negotiate upon the subject. What was such a country favored a restoration of peace. We sent contingent recognition worth? Could not France, our commissioners, and instructed them to insist if the article had been retained without any violaupon the payment of indemnity for these spolia- tion of its provisions, have said five, ten, or tions. They succeeded in getting two classes twenty years afterwards, that a "convenient time" to negotiate had not arrived? When our commiscaptures" were expressly excepted, because Francesioners consented to this provision, is it not apdenied its liability. The French commissioners said, You have gone to war to enforce these claims, and they, therefore, cease to be a charge on our treasury. We will neither recognize or pay them. What alternative was left our Ministers but to conclude a treaty without securing the indemnity, which they did, and which was subsequently rati

*I am indebted to the speech of Hon. Silas Wright, republished in Colonel Benton's "Thirty Years' View," for the abstract of much of the legislation on this subject.

parent that it was the nearest approach to recognition they could obtain, and that, by reserving for future consideration the subject, they had followed as nearly as possible their instructions to demand indemnities? Here was a demand, but was the response promising? France delicately, yet very emphatically, said, we never mean to rec

33D CONG....2D SESS.

ognize these claims, and the postponement was a courteous negation of liability. The striking out of the article could not strengthen the rights of the claimants beyond the recognition therein contained; and if there was no recognition, then no rights were released.

These claimants, however, contend that the declaration of Napoleon Bonaparte, First Consul, attached to the treaty, furnishes evidence that their claims were released for a consideration. After the treaty had been ratified, it was sent back to France to approve the amended treaty, and Bonaparte returned it with a declaration, which was certainly no part of it, but his opinion of the effect of the action of the Senate striking out the second article, in the following words:

"That, by this retrenchment, the two States renounce the respective pretensions which are the object of said article."

These were the four adjourned points deferred to a "convenient time." Mr. Madison, the Secretary of State, says:

"I am authorized to say that the President does not regard the declaratory clause as more than a legitimate inference from the rejection, by the Senate, of the second article."

And when the treaty was again sent into the Senate, without adopting this declaration of Bonaparte, they resolved that they "consider the said convention as fully ratified." Is this to be the foundation of our liability-an inference drawn from a declaration of Bonaparte, which was no part of the treaty?

But it is said that we released the claims to relieve ourselves of the alliance and guarantee under the treaties of 1778. The guarantees were mutual, reciprocal; if, indeed, the treaties were considered of force; and I do not perceive how they could be then said to be subsisting; for France, in 1793, violated the treaty by solemn decree, and the United States, in 1798, declared them void. The acts of the two Governments had, in fact, abrogated the treaties; and, if that be true, what consideration could be due from us to relieve us of the guarantee. If the treaties were subsisting in 1800, they were mutually binding and obligatory; and the release of France from her obligation to protect our liberties and possessions, was as great a good to her as her release of our obligations to guarantee her American possessions. What consideration, then, was there for us to receive from France for these claims? None. We abandoned them because we could not, according to international law, justly require their payment by France, because we went to war; and, if we did not go to war, they were abandoned after long negotiation, open hostility, and renewed negotiation, because France denied her liability, and would not pay. In the latter case we were justifiable, and the citizen has no just cause of complaint. If it had been clear that France was liable, even then we had a perfect right to abandon the claims rather than plunge the country into a general and devastating war to enforce them; and the United States, in such a case, would not be, equitably or morally, bound to pay the claims of the injured citizen.

In every aspect of this subject I deny any obligation to indemnify these claimants. They were prosecuted with extraordinary diligence; we tried to enforce them by reprisals, by war; we pressed them, subsequently, in negotiations; we, at last, abandoned them, but without a consideration, and because France persisted in refusing to pay them.

For fifty-two years these claims have been successfully and steadily repudiated by our predecessors; what new lights have dawned upon us to justify so large an expenditure of the public treasure? Sir, this is but the initiative to much heavier appropriations for these same claims. I stated, at the outset of my remarks, that these claims, without interest, amounted to upwards of eleven millions of dollars. Can you pay such a sum with five millions? If eleven millions of dollars are due, and the liability of the Government is established for any portion, as you do in this bill, how can you avoid paying the whole sum? Will you force your citizen, after acknowledging the justice of his demand, by a solemn act | of Congress, to receive only forty cents in every dollar, and give you a receipt in full? When was there ever more odious repudiation practised by

French Spoliations—Mr. Millson.

any Government than this will be? If the claims be just, pay all, or plead, in your act making the appropriation, poverty or bankruptcy for the residue.

Sir, the prospect of the speedy passage of this bill in the House of Representatives gives me much real pain. When it shall go upon your statute book, it will be a recorded rebuke of all the great names and intellects who have gone before us in these Halls, for their inexorable injustice in denying the citizen his just dues. Were they niggardly and parsimonious-are we to be just and generous? Sir, they were actors when these spoliations were committed; they knew the facts, and they refused to do that which we will soon do-charge the Treasury with all these spoliations. When we consummate the act, I fear that our countrymen will not commend our liberality, and that they will charge us with infidelity in guarding the Treasury with that patriotic vigilance that distinguished the earlier statesmen of the Republic.

NOTE.-Since this speech was delivered in the House of Representatives, a friend has called my attention to a decision made by the Supreme Court of the United States, which fully settles the question by the highest legal tribunal known to our laws, that war existed, as I have contended, between the United States and France.

The case is Bas vs. Tingy, reported in 4th Dallas, 35. The opinion of the court is unanimous in declaring that public war existed between the two countries. A part of the abstract of the opinion, by the Reporter, is as follows:

"Limited hostilities authorized by the legitimate authority of two Governments, constitute public war, and render the parties respectively enemies to each other."

Mr. Justice Washington, in delivering his opinion in the case, on the question whether enemy" is not descriptive of France and her armed vessels, says:

66

"The decision of this question must depend upon another, which is, whether, at the time of passing the act of Congress of the 2d of March, 1799, there subsisted a state of war between the two nations? It may, I believe, be safely laid down that every contention by force between two nations, in external matters, under the authority of their respective Governments, is not only war, but public war."

Again, he says:

"In fact, and in law, we are at war. An American vessel fighting with a French vessel, to subdue and make her prize, is fighting with an enemy, accurately and technically speaking," &c.

This case arose out of the construction of two acts of Congress, the first passed the 28th of June, 1798, and the second on the 2d of March, 1799; and the case was determined in the Supreme Court of the United States, in August, 1800. Can the question of war or no war, after this decision, be any longer contested? Justices Washington. Moore, Chase, and Patterson, all delivered concurrent opinions. No adverse opinion was held.

FRENCH SPOLIATIONS.

SPEECH OF HON. J. S. MILLSON, OF VIRGINIA,

IN THE HOUSE OF REPRESENTATIVES,

January 25, 1855.

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never believed that these private claimants would, in one case out of twenty, derive any benefit from the measure. I have never doubted that they have been used by the managers and agents of these corporations for their own purposes. Influence was wanted to secure the success of the bill. The associated wealth of these companies has been freely employed in printing reports, speeches, and essays, in securing the services of numerous agents, in ascertaining the name and residence of every person directly or remotely connected with any party who suffered from French spoliations, and by addressing circular letters to all such persons, advising them to urge their representatives in Congress to vote for the indemnities to which they were told they had an unquestionable claim. The aid of the State Legislatures has been sought, and resolutions of instruction obtained from them, adopted, with no more accurate views of the very intricate subjects to which they relate, than could be acquired from the one-sided documents and plausible representations that were submitted to them.

Sir, when the bill is passed-when the numerous private claimants and their descendants and connections, and friends, have performed the service required of them, we shall see them occupying a very different relation to these companies. No longer useful as dupes, they will be sacrificed as victims. Admit the insurance companies to the benefits of the bill, and it will then be their interest to depreciate the very claims they are now concerned to magnify. The smaller the number who share the five millions of dollars, the larger will be the dividend of each. Confiscations that now cry loudly for redress, will then be made to appear as lawful captures. Outrageous aggressions upon neutral commerce will be shown as justifiable seizures of contraband goods. Documents and papers now represented as incontestible proofs, will be scouted as the flimsiest testimony on which a claim was ever founded. And, sir, it must be admitted that, in these contests, the companies will have much the advantage of the private claimants. When uninsured property was captured, the report of the master or supercargo would give the owner full intelligence of his misfortune. He had comparatively small inducement to possess himself of those formal documents required by the insurance companies before they would adjust the losses for which they were liable. Even where proofs were procured, they are now, after the lapse of sixty years, in many cases, mislaid or destroyed. But not so with the companies. Their documents have been carefully filed away and preserved, and I now confidently predict, that if this commission is created, nearly the whole of the five millions will be distributed to insurance companies, not only because they are the largest claimants in interest, but because their proofs have been so much more skillfully fortified.

Sir, in proposing to confine to the private claimants the relief provided by this bill, I am not seeking to make an arbitrary discrimination. I trust I shall be able to show that the exclusion of insurance companies is demanded by the same considerations of equity or mercy that are believed to entitle the sufferers from French spoliations to compensation from Congress. These companies have never been sufferers from French spoliations. They have reaped large profits from French spoliations. Many of them grew rich upon them.

Mr. MILLSON said:

Mr. CHAIRMAN: At the very moment when my friend and colleague [Mr. LETCHER] submitted his proposition to exclude all insurance companies from the benefits of this bill, I was, without any conference with him, without any knowledge of his purpose, in the act of preparing a similar amendment. These companies are by far the most numerous class of claimants. Nay, sir, it is scarcely an exaggeration to say, that nearly all the claims of magnitude are represented by them. If they are allowed to participate in the indemnities provided, but few, if any, of the private claimants will ever derive any advantage from this bill. Now, sir, I wish to prevent this result. If the bill should pass I wish to secure to those of my constituents, who conceive themselves to have an interest in it, at least a chance of sharing its benefits. I have

capital, their stock in trade, their very life. Had there been no spoliations they would not have got the enormous premiums exacted from those whose property they insured. Their calculations were deliberately made. They understood their risks, and took care to indemnify themselves by demanding such premiums as would make good their probable losses, and leave them their expected profits. They knew that in one case out of three the vessel and cargo would be captured, and they regulated their percentage accordingly. Their usual rate was about fifty per cent. A, and B, and C they would receive fifty dollars on the hundred. The vessels of A and B get safely into port, but that of C is captured. They receive $150, and pay $100, leaving $50 as their gain. Do not let us be told, then, that these insurance companies were sufferers from French spoliations. With as much propriety may you say

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