33D CONG....2D SESS.

that fire insurance companies are always and necessarily great sufferers from conflagrations. They derive their profits from conflagrations. They would have no existence if there were no conflagrations, for no man would ever insure his house against loss by fire if no house was ever destroyed by fire.

Here, then, were risks deliberately assumed by these insurance companies, and for which they were amply compensated. It was by these risks they were enabled to make great profits, and 'distribute to their stockholders large dividends. So far from being sufferers from French spoliations, their fortunes were built on the very losses of the real sufferers; and it is a mockery, an abuse of language, to say, that in granting them relief, we are only yielding what is due them as common sufferers from the depredations of the French.

But, sir, I wish further to show, that if they are allowed to share this relief, the American people will be twice taxed to reimburse their losses. Who was it that paid the premiums received, and which more than indemnified them for all the losses they sustained? Why, the people at large. The merchant who advanced these heavy premiums, did it with a knowledge that the profits of a successful voyage would secure a full remuneration. The expenses of insurance were charged upon the price of his goods. The consumers paid back all these expenses. The people bore all these burdens; and yet it is now proposed to tax them again for the purpose of relieving the insurance companies from losses, which they were relieved from at the time by these premiums, charged in the prices of the goods, and paid by the people that consumed them. The insurance companies, then, were not sufferers, and many of them even declared large dividends; for their losses were made up from the premiums paid by the merchants whose voyages were not interrupted. These merchants were not sufferers, for they were reimbursed in the sale of their goods Then who did lose? Why, sir, the consumers, who paid the increased price, and the merchants whose property was captured-those who were uninsured, and even those who were insured also, for they lost the amount of the premiums paid, which they did not get back as they expected, in the shape of profits. Where the rate of premium was fifty per cent., they lost just as much as the insurance company itself; and yet they can get nothing under this bill, while the insurers, standing in their stead, are to receive the full value of the property insured, or as much of it as the $5,000,000 will discharge. This singular fact, then, appears, that the real losers by French spoliations, except indeed the uninsured claimants, are excluded from the benefits of the bill, while those who were rather gainers than losers are admitted to the full enjoyment of them. Nay, sir, they are even more highly favored than the private claimants; for distribution will be made to them according to the value of the captured property, without requiring a deduction of the premium they received, diminishing fifty per cent, the amount of their loss; while the poor private claimant, who has received no premium, can still get no more than they.

In assuming the rate of premiums to be fifty per cent., I do not wish to be understood as say. ing that that amount was always exacted. I have heard that it was frequently, if not usually charged; but, whatever was the ordinary rate, it was deemed by the insurers sufficient to answer the risk and guard against loss. And, unless gentlemen can show that they became bankrupt, or that their losses were greater than their profits, my proposi tion will stand good-that there is but little equity in their demand to be classed among the sufferers.

But, I may be told that these companies are assignees of the original claimants, and entitled to demand payment of the debt due them by the Government. I admit they are a signees, and I confess there would be serious objection to the proposition to exclude them, if any debt was ever due by the Government to them, or to those whose rights they have acquired. However inequitable may be their demand, as a debt we cannot resist it. But I proceed upon the assumption that no debt is due by the Government. The bill itself is framed upon this assumption. It does not purport to pay debts. It does not regard these claimNEW SERIES.-No. 10.

French Spoliations-Mr. Millson.

ants as creditors of the United States. If it did, it would provide for the ascertainment of the amounts due, and then direct their payment in fall; but it simply appropriates the sum of $5,000,000, which is to be received in discharge of all claims, however much they may exceed that amount; and we all know they will greatly exceed it. There could be no stronger objection to the bill than to say the Government is indebted to these claimants. It would be disgraceful to the country that the pay. ment of just debts should be withheld for sixty years, and then compounded for at twenty-five or fifty cents on the dollar.

Then, what are the grounds on which this measure rests? The only ground at all consistent with its provisions is, that though there is no debt, though no liability has ever existed, and no obligation assumed to pay any of the claims our citizens had against France, yet, that in negotiating the treaty of peace between France and the United States, in the year 1800

Mr. BAYLY. The gentleman does not mean to call it a treaty of peace?

Mr. MILLSÓN. Yes, sir, a treaty of peace; for such it was in effect as well as in terms. It commences with the declaration that there shall be "a firm, inviolable, and universal peace" between the French Republic and the United States; and it was a treaty of peace, though I am indifferent about the style of it. But I was about to say, the bill before us seems to proceed upon the assumption that, though no debt is due by the United States on account of these claims, yet, in ratifying the treaty of 1800, our Government impliedly engaged to trouble France no more about them; and we might, therefore, with propriety, extend some relief to the sufferers.

Sir, there is no other plausible ground on which this measure can be placed. If a debt be due by our Government to these claimants, pray tell me how it arose? Is it pretended that we incurred this obligation by a failure to prosecute their claims with sufficient diligence and earnestness! That cannot be said, for never was a Government more solicitous to de end the rights and redress the wrongs of its citizens, than was ours on this occasion. Mission after mission, and of the most eminent men of our country, was sent to France. For more than seven years their efforts were persisted in, and that, too, under circumstances of indignity and insult almost unexampled. So little effect were they able to produce, that fresh outrages were constantly perpetrated, while they were still urging their ineffectual demands for redress.

rep

These efforts were first made by Mr Governeur Morris, our Minister to France, in 1793; for, even at that early day, he refers, in a letter to Mr. Jefferson, the Secretary of State, to the captures of our vessels by French privateers, as too numerons to be specified. Mr. Monroe was sent out in 1794, and his instructions were "to insist upon compensation for the captures and spoliations of our property, and injuries to the persons of our Citizens, by French cruisers." In 1797, after the recall of Mr. Monroe-at which, by the-by, the French Government assume upon themselves to evince much resentment-Mr. Marshall, Mr. Pinckney, and Mr. Gerry were appointed joint envoys to France. They were instructed that " aration for losses sustained by our citizens was to be pressed with the greatest earnestness," and that the best possible means of compensation must be attempted. But the French Directory refused to receive them, or even to give them an audience. Talleyrand, the Minister of Foreign Relations, conferred with them as private citizens, and only condescended to hold intercourse with them at all, until he became convinced that his un crupulous machinations for extorting from them a loan to the French Republic and a douceur of £50,000 for himself, would prove uns ccessful. But the ambidextrous Talleyrand was too wary to connect himself openly with these disgraceful propositions. His secret agents, referred to in the journals of our Ministers as Messrs. X, Y., and Z, and for a long time only known by those initials, exhausted their powers of persuasion in the attempt to prevail on the American envoys to aid France with the desired loan, and to purchase the good will of the Minister with the suggested bribe. They sternly refused, and it was amusing to see his display of virtuous indignation, when, after the

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publication of the reports of our Ministers, he demanded to know by what authority they had presumed to hold intercourse with these agents, as persons speaking on his behalf.

Sir, in the communications addressed to the French Government, they clearly set forth the claims of our citizens, and triumphantly vindicated the honor and good faith of the United States against the loose charges and frivolous pretensions, set up by France for the mere purpose of refusing that justice which she had neither the inclination nor the ability to grant. But these representations were treated with contempt. The most insolent language was applied to our Government. Insult after insult was heaped upon our Ministers. Their public character was denied them, and they were even threatened with the supervision of the police. Hints were thrown out that they, or, at least, Mr. Pinckney and Mr. Marshall, would consult their interest by quitting the territory of France; and this insolence rose to so high a pitch, that Talleyrand, in an official letter to Mr. Gerry, whom he wished to detain in Paris, wrote as follows:

"I suppose, sir, that Messrs. Pinckney and Marshall have thought it useful and proper, in consequence of the intimation which the end of my note of March 18, 1798, presents, and the obstacle which their known opinions have induced to the desired reconciliation, to quit the territory of the Republic."

They were compelled to leave France. It was with the greatest difficulty that Mr. Pinckney, whose daughter was then lying dangerously ill, could procure a delay of a few days. They returned to the United States, but even before their arrival their reports had been communicated by the President to Congress, and had been laid before the American people. They produced a blaze of indignation. Even Mr. Jefferson trembled for the supremacy of the Republican party when the X. Y. Z documents, known to have been drawn up by Judge Marshall, came to be published. There was a universal demand for the adoption of such measures as would vindicate the national reputation. Then it was that those acts, just referred to by my friend from South Carolina, ([Mr. ORR.] authorizing hostilities against the French Republic, were passed by Congress, and which he characterized as a condition of quasi war. Then it was that Congress passed a law declaring that the treaties between the United States and France had been repeatedly violated on the part of France; that the just claims of the United States for reparation had been refused, and their attempts to negotiate an amicable adjustment repelled with indignity, and enacting that the United States were of right freed and exonerated from the stipulations of these treaties, and that the same shall not henceforth be regarded as legally obligatory on the Government or citizens of the United States.

Sir, I think I may venture the assertion that there was, perhaps, no class of persons in the United States to whom these measures gave more satisfaction, or who were more clamorous in their demands for these warlike proceedings, than those whose descendants or assignees now so loudly complain of them.

If, then, it be pretended that the Government has incurred this liability, because it did not diligently prosecute these claims, there is no sort of foundation for the charge. They were just claims, and they ought to have been prosecuted earnestly, and they were so prosecuted.

But it is said, that in the ultimate treaty between the two countries, concluded in 1800, the Government surrendered these claims, and thus gained important advantages in inducing a corresponding surrender of the claims of France upon us. Is that the ground of our liability? If it be-and it was put upon that ground to day by the gentleman from Alabama, [Mr. PHILLIPS,] and yesterday by the gentleman from Ohio, [Mr. DISNEY-let us examine the argument. What were those claims Will any gentleman rise and tell me what just claims France ever had against the United States for the violation of any treaty? Will any gentleman say that France could charge us, or ever did charge us, with violating the treaty of alliance, in respect to the guarantee of her islands? Why, sir, as the gentleman from Missouri [Mr. BENTON] said yesterday, France never even asked us to fulfill this guarantee. He referred only to the

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testimony of Mr. John Quincy Adams, but he might have multiplied his authorities. Mr. Genet, in his very first communication to the Secretary of State, says, that though "the French nation would have a right to reclaim the obligations imposed on the United States by the treaties she has contracted with them," yet that she continues to labor still to increase the prosperity and add to the happiness which she is pleased to see them enjoy."

Mr. Jefferson, in a private letter to Mr. Madison, written a day or two afterwards, represents Mr. Genet as saying:

We know that, under present circumstances, we have a right to call upon you for the guarantee of our islands. But we do not desire it. We wish you to do nothing but what is for your own good, and we will do all in our power to promote it. Cherish your own peace and prosperity." In a subsequent letter to Mr. Madison, he says:

"Genet mentions freely enough in conversation that France does not wish to involve us in the war by our guarantee."

In an official note given by Mr. Jefferson, as Secretary of State, to President Washington, and described by him as a "Note given to the President relative to Mr. Genet," he says:

"Mr. Genet's declaration to the President, at his reception, that France did not wish to engage the United States in the present war, by the clause of guarantee, but left her free to pursue her own happiness in peace, has been repeated to myself in conversation, and to others, and even in a public answer, so as to place it beyond question."

Even Talleyrand, five years afterwards, in his letter of March, 1798, to Messrs. Pinckney, Marshall, and Gerry, admits that France had never required us to execute this clause of guarantee, and says:

"The Republic was hardly constituted when a minister was sent to Philadelphia, whose first act was to declare to the United States that they would not be pressed to execute the defensive clauses of the treaty of alliance, although the circumstances, in the least equivocal manner, exhibited the casus fæderis."

Sir, the French Government did not exact from us the fulfilment of the guarantee, and if she never called on us to do so, pray tell me how there could be any claim for indemnity for a violation of that treaty? Yet, the gentleman from Ohio [Mr. DisNEY] says, that France did demand its execution, and did claim indemnity for that guarantee, and he declares that some American politicians resorted to miserable subterfuges to avoid our honest obligations to France by insisting that she had commenced the war with England, and that our guarantee could only be invoked in a defensive and not in an offensive war. Sir, the gentleman is mistaken. It would have been as idle then as now, to inquire whether we were bound to guaranty the French islands in an offensive as well as a defensive war. I care not what may have been the true construction of the treaty. I care not what opinions may have been expressed upon the subject. The point did not arise, and it never became necessary to resort to any subterfuge. Whether we would have been bound or not, if France had called on us for aid, the simple fact is, she never asked it, but expressly disclaimed it.

Well, sir, was it for any violation of the treaty of amity and commerce that a claim for indemnity arose? Who will rise upon this floor and say that this treaty was violated by Washington? The gentleman from Ohio [Mr. DISNEY] insisted yesterday that this treaty allowed France exclusively to arm and fit out her vessels of war in our ports, and to sell the prizes she might take from her enemy; and he not only declares that these stipulations of the treaty were violated by us, but he looks with pain upon this chapter of our history. Sir, I challenge the citation of a single American statesman, of that day, either of the Republican or of the Federal school of politics, who did not unite in the denial of the French pretensions on these subjects. No such right was granted to France by the treaty, either exclusively, or in common with other nations. To have permitted it to her would have been a gross violation of our neutrality. France complained of the denial of these privileges, but rather to avoid accounting with us for her numerous depredations on our commerce, by trumping up complaints with which to meet ours, than because there was anything in the treaty that could make them even plausible. It is true that for a time she was allowed to dispose of some of her prizes in our ports, but only as a matter of grace and

French Spoliations—Mr. Millson,

not of right. When it became inconsistent with our treaty stipulations with England, it was forbidden; and it involved no wrong to her, for her treaty with us only authorized her ships of war to bring their prizes into our ports, without being obliged to pay any duty, and to depart and carry them away again; but did not authorize her to make sale of them there. When France complained that "the Government of the United States does not permit the sale in their ports of prizes made upon England by the cruisers of France," our Ministers replied:

"The fact is admitted. To erect it into an offense, it becomes necessary to prove that the measure violates either the engagements or the neutrality of the United States. Neither is attempted."

The claim to arm and fit out in our ports her privateers and ships of war, had no ground whatever to support it. It was denied on all hands. What can be more conclusive than the reasoning of Mr. Jefferson, in his dispatch to Mr. Morris, then our Minister to France? He says:

"But Mr. Genet says that the twenty-second article of our treaty allows him expressly to arm in our ports. Why has he not quoted the very words of that article expressly allowing it? For that would have put an end to all further question. The words of the article are: 'It shall not be lawful for any foreign privateers, not belonging to the subjects of the Most Christian King, nor citizens of the United States, who have commissions from any Prince or State, in enmity with either nation, to fit their ships in the ports of either the one or the other of the aforesaid parties.' Translate this from the general terms in which it here stands, into the special case produced by the present war: Privateers not belonging to France, or the United States, and baving commissions from the enemies of one of them, are, in the present state of things, British, Dutch, and Spanish privateers.' Substitute these then for the equivalent terms, it will stand thus: It shall not be lawful for British, Dutch, or Spanish privaters to fit their ships in the ports of the United States. Is this an express permission to France to do it? Does the negative to the enemies of France, and silence as to France herself, imply an affirmative to France? Certainly not-it leaves the question, as to France, open and free to be decided according to circumstances."

But, sir, you will find in the ninth volume of Jefferson's works that this very question became a subject of Cabinet consultation. I read the following extract:

"Does the treaty with France leave us free to prohibit her from arming vessels in our ports? Thomas Jefferson, Hamilton, Knox, and Randolph-unanimous-it does. As the treaty obliges us to prohibit the enemies of France from arming in our ports, and leaves us free to prohibit France, do not the laws of neutrality oblige us to prohibit her Same persons answer they do."

The gentleman from Ohio [Mr. DISNEY] says that we gave just cause of offense to France by denying privileges to her that we granted by the Jay treaty to England, in allowing her to take French goods out of American ships, while France was forbidden to take British goods out of our vessels. Now, sir, the plain answer to this is, that our treaty with France had established the principle that free ships should make free goods. This principle was no part of the general law of nations, and was only binding upon those nations who, by treaty, should agree to it. We never had any such treaty with England, and of course her right to take the property of her enemy when found in neutral bottoms, was regulated by the law of nations only. It was not a privilege granted to England by the Jay treaty, as the gentleman supposes, but belonged to her by the general law of nations, before that treaty was made. Its recognition there added nothing to her rights. The United States desired to substitute the principle that free ships make free goods, but England always preferred to adhere to the general doctrine of international law upon that subject. She steadily acted upon it and the French Government complained of us for allowing it, long before the ratification of the Jay treaty. As early as 1793, Mr. Jefferson had occasion to reply to some of these unreasonable complaints of the French Minister. Writing to Mr. Genet, he says:

"I believe it cannot be doubted but that, by the general law of nations, the goods of a friend found in the vessel of an enemy are free, and the goods of an enemy found in the vessel of a friend, are lawful prize. Upon this principle, I presume, the British armed vessels have taken the property of French citizens found in our vessels, in the cases above mentioned, and I confess I should be at a loss on what principle to reclaim it."

If this doctrine of the law of nations, in some cases worked against France, in others it operated in her favor; for she was entitled to make prize of our goods when found in English bottoms.

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And she was not backward in availing herself of this right, for her armed vessels captured American property wherever it was found in the ships of any of the nations with which she was at war. Sir, she gained more than she lost by it; and, as Mr. Jefferson stated in his letter to Genet, we were the actual losers, for the goods lost were our own, and those saved only our friends'. Yet, in spite of all this, and in flagrant violation of her treaty with us, she decreed, in 1796, "That all neutral or allied Powers shall, without delay, be notified that the flag of the French Republic will treat neutral vessels, either as to confiscation, as to searches, or capture, in the same manner as they shall suffer the English to treat them." The gentleman from Ohio admits that this was a violation of her treaty with the United States, but France persisted in this course, though our Ministers warmly remonstrated against it as one" dispensing with the most solemn obligations which compact can create."

Where, then, sir, is the warrant for the assertion that France had any just claims against the United States? On what ground can gentlemen maintain that, in desisting from the further prosecution of the claims of our citizens against France, we obtained an equivalent in being relieved from her demands for indemnity upon us? Why, sir, the very strength of our claims against the French Government depended upon the faithful execution of our treaties with her. Had we been guilty of violating them, France would have had some justification for her course towards us, and there would have been no foundation for the demand of compensation for the spoliations committed upon our commerce. And yet, while gen

tlemen endeavor to show that these treaties were repeatedly violated by the United States, they somewhat inconsistently declare that France acknowledged her liability to us for the property taken from our citizens.

Sir, what sort of acknowledgment did she make? I suppose no member of the French Ministry ever went to the absurd extreme of declaring that, out of the many cases of seizure and capture of our vessels and goods, not one could be found that created an obligation to make compensation. But was any investigation ever made? Was there an admitted liability as to any one of these unsatisfied claims? Did she ever promise to make payment in any particular case? Had she made any such promise, when, in 1797, our Ministers reported to the Secretary of State: "We are sorry to inform you that the present disposition of the Government of this country appears to be as unfriendly towards ours as ever, and that we have very little prospect of succeeding in our mission!" Had she made any such promise, when, as late as 1798, only about three months before we found it necessary to abrogate all our treaties with her, Talleyrand, in an interview with our Ministers, observed that "we had claims on the French Government for property taken from American citizens; some of these claims were probably just?" Some of these claims were probably just! A very definite and important. acknowledgment to be sure! No, sir; they never did promise to pay these claims. Our Ministers never could extort any such promise from them. Even in the final negotiation, when the French Ministers were pressed and constrained to make some reply, they boldly declared that they were determined not to assume the payment of indemnities, because they were altogether unable to pay them; and our negotiators twice communicated to their own Government the declaration made by the French Ministers, that they would not enter into an investigation because they did not mean to acknowledge the claims, as they had not the means to pay them.

Mr. BAYLY. Where is the evidence of that? Mr. MILLSON. Here it is. Our Ministers say, September 12, 1800:

"They now openly avowed that their real object was to avoid, by every means, any engagement to pay indemnities, giving, as one reason, the utter inability of France to pav, in the situation in which she would be left by the present war."

Again, on the 4th October, 1800, they say: "In short, they thought proper to add, what was quite unnecessary, that their real object was to avoid indemnities, and that it was not in the power of France to pay them.”

Sir, I trust I have succeeded in showing that France never had any valid claims for indemnity

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against the United States resulting from the violation of any of our treaties with her, and that if we desisted at last from all further efforts to obtain satisfaction for the claims of our citizens, it was from a conviction that such efforts would be fruitless, and not from any anxiety to be relieved from her empty pretensions. But it is said that, by the convention of 1800, we were discharged from the guarantee in the treaty of alliance, and that this was the valuable consideration for which we renounced the just claims of our citizens, and secured a national benefit at their expense. Before we can estimate the force of this argument, it will be necessary to advert to the previous relations existing between the two countries.

I have already stated that, in 1798, the French Government not only refused to receive our Ministers and treat with them upon the objects of their mission, but ignominiously compelled two of them to quit her territory, while a discrimination not less insulting was made in favor of the other. Our Government had hardly received intelligence of these proceedings, before the most prompt and vigorous measures were taken to vindicate the national independence. In less than three weeks from the reception of this intelligence, the law abrogating all our treaties with France, had passed both Houses of Congress, and been approved by the President. Various measures of a hostile character were adopted in quick succession. I need not describe them particularly, as my friend from South Carolina [Mr. ORR] has just done so. They prohibited all intercourse with France; they authorized the capture of all French armed vessels wherever found, and their condemnation as lawful prize; they provided for raising an army, equipping a navy, and for placing the country in a complete state of defense. Actions were fought, prisoners were taken; but gentlemen say all this did not amount to war. They are aware that if it was war, it annulled all our treaties with France, and she was from that moment released from any obligation to pay our claims against her. Therefore, they deny that this condition of things amounted to anything more than hostilities, with

out war.

Now, sir, I do not think it at all necessary for the purposes of the argument, to show that war did really exist. But it seems to me that gentlemen encounter formidable difficulties in their efforts to show it did not. At the renewal of negotiations in 1800, the French Ministers, while they maintained that France had not accepted the war, and had not in that way assented to the abrogation of the treaties, yet insisted that the hostile acts authorized and committed by the United States, "were nothing less than war," and that "a new treaty between France and the United States should be preceded by a treaty of peace. Our Ministers could only reply, on this head, that the state of things from which they desired to return, was one "difficult to name and more difficult to account for." If the state in which the country was placed by the legislation of 1798, was not one of war, Judge Marshall, who is said to have favored these claims, must have been unusually careless in his phraseology, when he said, in his Life of Washington, "General Washington did not live to witness the restoration of peace."

French Spoliations—Mr. Millson.

mated." I will read a brief extract from these instructions. "The following points are to be considered ultimated"-Omitting all but the second and third, I quote the language of these two:

"2. That the treaties and consular conventions declared to be no longer obligatory, by act of Congress, be not, in whole or in part, revived by the new treaty, but that all the engagements to which the United States are to become parties, be specified in the new treaty.

"3. That no guarantee of the whole or any part of the dominions of France be stipulated, nor any engagement made in the nature of an alliance.""

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ered the avowed objects of the French Government, their Ministers then "made an entire departure from the principles upon which the negotiation had proceeded for some time," and openly avowed that their real object was to avoid indemnities, and that it was not in the power of France to pay them.

Here, sir, seemed to be the end of the negotiation. What more could our Ministers do? Their arguments had been unavailing. Their remonstrances had been disregarded. Were hostilities to be renewed? That was a grave question, and gravely did they consider it. More blood might be spilt, more treasure wasted, but what, at last, would be the good? They concluded to make a temporary arrangement. There were more than forty ships and cargoes, many of which, they said, were of great value, not yet definitively condemned. These, at least, might be saved. They therefore concluded the treaty of 1800, the second article of which was in these words:

solve them without the consent of the other. It was answered, that their repeated infraction by France authorized the United States to declare they should be no longer binding upon them. They said it would be degrading to pay indemnities, and submit, also, to be deprived of the benefits of the treaties. Their proposition was a stipulation for mutual indemnities and a revival of the treaties. This was, of course, instantly rejected. At a subsequent period our Ministers proposed that, if France would pay the indemnities due on her part, they would make a similar agreement, provided it should be limited to the claims of individuals; and they would also consent to a revival of the treaties, on condition that the mutual guarantee should only bind France, when the United States were attacked, to furnish one million of francs, in provisions, and should bind the United States to supply the same amount when France was attacked. By this proposition, too, either party was to be at liberty to exonerate itself wholly from its obligations under the guarantec, by paying to the other, within seven years, five millions of francs-less than $1,000,000.

This, sir, is doubtless the proposition referred to by the gentleman from Ohio [Mr. DISNEY] when he said that the United States offered to pay eight millions of francs to be released from the guarantee. The supposed offer of eight millions, by our Ministers, was only a recital by them of their understanding of a previous offer of the French Government. The offer made on cur part was expressly connected with the proposition that France should pay the indemnities. Could we have gotten from her the seventy-five, and perhaps a hundred millions of francs, that she was liable for, it would have been an excellent bargain to allow her five millions for the guarantee. The privilege, too, was to be reciprocal. When she desired to be released from the guarantee, she was to pay us as much as we were to pay her, if we should want to be released.

The reply of the French Ministers on this head was to the effect that the guarantee should be contwo millions, but not redeemable except for ten millions. They, however, still evaded the proposition as to indemnities, and continued to set up their own claims. The American Ministers rejected these terms, and particularly objected to the augmentation of the sums proposed to extinguish the right of France under the mutual guarantee. But after deliberating a few days, they determined to advance still closer to the French offer. They say in their report:

You will remember, sir, that, at this time, all our treaties with France had, by a solemn act of Congress, been abrogated. The envoys were expressly instructed not to consent to their revival. This point, indeed, was declared to be "ulti

"They offered an unlimited recognition of the former treaties, though accompanied with a provision to extinguish such privileges claimed under them as were detrimental to the United States by a pecuniary equivalent, to be made out of the indemnities which should be awarded to American citizens. A compensation which, though it might have canceled but a small portion of the indemnities, was nevertheless a liberal one for privileges, which the French Government had often admitted to be of little use to France, under the construction which the American Government had given to the treaties."

They go on to say, that though this offer cov

"The Ministers Plenipotentiary of the two parties not being able to agree at present respecting the treaty of al

merce of the same date, and the convention of 14th 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."

United States, and the following was added:
This article was expunged by the Senate of the

"It is agreed that the present convention shall be in force for the term of eight years from the time of the exchange of ratifications."

In this form the treaty was ratified. It was also ratified by the French Government with the declaration that "the Government of the French

Republic consents to accept, ratify, and confirm the above convention, with the addition that the Convention shall be in force for the space of eight years, and with the retrenchment of the second article, provided that, by this retrenchment, the two States renounce the respective pretensions which are the object of the said article."

On being again sent to the Senate, that body simply declared that they considered the treaty fully ratified.

Now, sir, it is upon this state of facts the assertion is founded, that the United States bartered the claims of their citizens for valuable privileges to themselves, in receiving exemption from what is called a burdensome guarantee. It is now usual to speak of it as a burdensome guarantee. But was it less burdensome to France? Were not the obligations reciprocal? If we were bound to guarantee the French possessions in America, was not France equally bound to guarantee our possessions, and our "liberty, sovereignty, and independence" besides? Yet this guarantee is constantly spoken of as if it imposed obligations upon the United States alone. Why, sir, at the time it was made it was deemed rather a favor than a burden to us; and, considering the relative power of the two nations, we might hope to secure at least as much advantage from it as France ever could.

But had we not already been released from this guarantee? Had we not abrogated all our treaties with France, and had any of them ever been revived? Who shall question the right of a nation to pronounce treaties previously violated by the other contracting party, no longer obligatory upon herself? Between nations there is no common arbiter, and each must judge for itself as to the obligations of their public compacts. A difference of opinion between them as to the propriety of the abrogation may, to be sure, lead to war; but the act of abrogation is not the less valid. Especially, sir, is it not permitted to the citizens or subjects of any Power to question its validity. They are bound by the act, whether other Powers may choose to acquiesce or not. Mr. Jefferson's opinion upon this subject may be inferred from his letter to Mr. Madison, in which he says:

"I was glad, in yesterday's discussion, to hear it admitted on all hands, that the laws of the United States subsequent to a treaty, control its operation, and that the Legislature is the only power which can control a treaty. Both points are sound beyond doubt."

But it has been argued, that though a nation possess the right to absolve itself wholly from treaties previously violated by the other party, yet she is accountable to that party for its improper

33D CONG....2D SESS.

ments.

No, sir; the Government of the United States received no consideration from France for any surrender of our claims. It had no inducement to do so. It is a strained interpretation of the motives and objects of our Government to suppose it had. The Senate struck out the second article, doubtless, from an idea that France might found upon it a pretension that it contained an implied admission of her having valid demands upon us. Perhaps, too, they were unwilling that further efforts-by this time ascertained to be hopeless-should be made to induce France to grant the indemnities so obstinately denied, and were, therefore, averse to holding out such an expectation. But suppose the Government had expressly resolved to abandon all further exertions on behalf of the claimants; suppose it had notified France of its purpose to discontinue the prosecution;-would even that have made her liable to pay them? Undoubtedly not. A nation will assist its citizens to obtain redress from foreign Powers, but it is not bound to go further than it may deem expedient. It will make all proper efforts to obtain satisfaction for injuries done them; but if it fails to do so, it is under no obligation to pay the claim itself. Disputes between nations are not to be perpetual. There is a time when there must be an end of strife. The Government must judge of this for itself; and the good of the whole, not the passions or interests of a few, must be the controlling consideration.

Pacific Railroad-Mr. McDougall.

true relation to the subject now under consideration.

The gentleman from Missouri commences his discourse by informing this committee that he has, for a long time, earnestly desired to withdraw this subject from this forum-a forum disturbed and agitated by political controversies, and by personal and local considerations.

I would like to inquire of the gentleman from Missouri what, in his opinion, constitutes a long || period of time. I hold in my hand a letter written by that gentleman, or at least his name is appended to it, dated March 4, 1853. Is the time since then a long period, in the estimation of the gentleman of thirty years' experience in senatorial legislation? This letter is in the form of an address to his constituents, on the subject of a railway to the Pacific. I will read a few extracts from this letter:

"I hold that it should be made by the United States, so far as their territory ext nds, (which would be almost the whole distance on the central route,) leaving the two ends where it would go through States to the operation of State laws and State authority.” *** "My idea is, that the road should be built by the United States, by the creation of a stock hypothecated upon the publi lands, and paya ble, at a fixed period, at the Federal Treasury, and that an adequate force should be put upon it to do the work at

once."

This much, sir, is all I have to say as to the long desire of the gentleman to withdraw this sub ject from the forum of the Federal Congress.

I have noticed the opening of the gentleman's discourse addressed to the committee. I will now refer to his conclusion. As in the discourse itself there is nothing consecutive, I see no occasion to treat it consecutively.

The gentleman says that the northern road proposed by this bill is a British road, a Canada road, a hyperborean road, an impracticable road; that it has been projected for entirely speculauve purposes; and that this British, hyperborean, impracticable speculation is the offspring of the present Administration. The gentleman is mistaken. I will inform this committee that the present Administration is in no respects chargeable with the paternity of this monster offspring. Its paternity is chargeable upon no other person than the gentleman from Missouri ow before me. The gentleman from Missouri, as long ago as 1845, in the first proposition made by him for a railroad to the Pacific, suggested that it should be run from the great falls of the Missouri to the Columbia river-the same line recently surveyed by Governor Stevens. The exact line of what has now become a British and hyperborean route.

Mr. BENTON. That was before the acquisi

PACIFIC RAILROAD.

Mr. McDOUGALL. Yes, it was; but it was as much a British road then as it is now; as much hyperborean, and as impracticable. The gentleman then described it as an excellent route, as a practicable and convenient route, although we had then but few of our people on the shores of the Pacific He suggested a railroad by this route, as a means whereby we could command the rich commerce of the Orient; and indulging in a strain of oriental eloquence, he gorgeously portrayed, as its results, a line of cities along the banks of the great father of waters, rivaling, in their wealth and splendor, Palmyra of the desert, Tyre, and Carthage, and Venice.

OF CALIFORNIA,

IN THE HOUSE OF REPRESENTATIVES,
January 16, 1855.

The House being in the Committee of the Whole on the state of the Union, and Mr. BENTON having concluded his remarks

Mr. McDOUGALL said:

Mr. CHAIRMAN: I entertain for the venerable gentleman from Missouri great respect-great respect as a feature in our history; but as a member of this body, upon this floor, acting, and seeking to influence action on a great public question, I cannot regard him as entitled to any greater or higher deference or consideration than any one of the honorable gentlemen before me, and I shall, therefore, undertake to discuss freely the gentleman's present position, and to exhibit fully his

I say, then, sir, this projected road is no offspring of this Administration. If for its paternity either honor or execration is due, the debt is payable to the honorable gentleman himself.

And now as to the southern_route. This, the gentleman insists, is another offspring of the Administration; and here, too, the gentleman is mistaken. Let me state the facts: During the late war with Mexico it became necessary to send a body of troops to New Mexico. This command, under General Kearny, consisted in part of mounted men, and in part of infantry, with a large baggage train. They set out from Fort Leavenworth, on the frontier of Missouri, en route for the city of San Francisco. They took the route through New Mexico as the most practicable. At Santa Fe they endeavored to find guides, and to ascertain the best route across into California, and with this object remained in New Mexico for some time. After full inquiry, General Kearny undertook as an experiment to take the

HO. OF REPS.

mounted troops down the Gila; he succeeded in following the Gila, but encountered serious obstacles, even to the passage of his mules and horses. Leroux undertook to guide Lieutenant Colonel Cooke with the Mormon battalion and the wagon train, by a wagon road into California. To find this wagon road Colonel Cooke, with is command, was forced south through what was then a part of Mexico; and over the same line of road, the survey of which is now denounced ay a fraudulent speculation on the part of certain f cers of the Army and the Administration.

I know that, until very recently, it has been generally supposed at the West, that this line was the only practicable southern line to the Pacific, and that, perhaps, the only route for a railroad into California, was south of the Gila. Since the opening of the road by Colonel Cooke, the entire emigration from the south and south west have passed over this road; they have passed it in summer and winter; the features and facilities of the country have become well understood, and now for some years it has been known to present no serious physical obstacles to the construction of a railroad. Therefore, when it was proposed to inquire into the practicability of a railroad to the Pacific, it became important for the Government to inquire into, and examine, the southern route, and it also became an important measure-assuming that there was no other practicable route-to acquire that country from Mexico.

Now, Mr. Chairman, the gentleman from Missouri has great objections to the policy of appropriating the public lands in aid of railroad enterprises. His language amounts to a denunciation of the policy in the most unmeasured terms. It would seem somewhat strange, however, to the committee if I should state to them, and should prove to them, that the gentleman has always heretofore been in favor of the most extravagant appropriations of lands for such purposes; that no other man in the Union, in or out of Congress, has made a record of propositions of this kind, that will at all compare, in point of extravagance, with those made by the gentleman from Missouri. The gentleman introduced into the Senate two different bills for the construction of a railroad to the Pacific. His first bill proposed to appropriate one hundred solid miles of land along the whole line through to the Pacific. Not alternate sections, mind, but one hundred miles in a continuous tract. The gentleman talks about the grant proposed by this bill as containing more land than would be required for a State. His proposal to appropriate one hundred miles in breadth, along two thousand miles of road, would furnish the territory for many States. But he not only proposed to set apart and appropriate the hundred solid miles of land, but also to appropriate to the scheme all the revenues of the Federal Government collected in the Territories of California and Oregon.

The gentleman's next bill provided for the appropriation of seventy-five per centum of the proceeds of all the public lands lying west of the Mississippi, and fifty per cent. of the proceeds of the balance of the public lands, in aid of this great work. It seems to me that the gentleman from Missouri cannot very reasonably assume now, that there is anything vicious in this measure, because it proposes to dispose of what is, comparatively, but a small part of the public domain, for the same purpose.

But, sir, it may be supposed by some, that while the gentleman from Missouri was in favor of a direct appropriation of the public domain, or its proceeds; while he was in favor of a direct construction of the road by the Government, with the property and money of the Government, yet that he was consistently opposed to the policy of granting alternate sections of the public lands, upon special grounds. I ask the attention of the committee, and of the gentleman from Missouri, while I state that in the debate on the bill to grant lands to the State of Illinois, to aid in the construction of the Ilinois Central railroad, the gentleman from Missouri brasted that he was one of the fathers of this very policy. On that occasion, he congratulated himself that he had been long enough in the Senate to have voted for the original grant to Illinois, for the purpose of aiding the Construction of a canal from lake Michigan to the Illinois river. He stated that, without that aid,

33D CONG....2D SESS.

the work would hardly have been undertaken, much less accomplished. He pointed out the prodigious results of that grant, and stated that, if no other advantageous results had followed the grant, that the vast facilities afforded to our internal nav igation well compensated us for parting with some acres, over which this Government then wielded a barren scepter. On the same occasion, the gentleman stated that he had voted to give nearly half a million of acres to the State of Alabama, to aid in the construction of a canal around the Muscle Shoals; and that, although the work had not been executed, he did not consider the appropriation lost; that there had been great advantages gained by the conveyance of the land out of the dead hands of the Government into the hands of individual citizens, who would cultivate it, and render it subservient to the wealth and prosperity of the country. That he did not consider any of these grants unprofitable; but that, in his opinion, a great public object was gained by the transfer of the public lands from those by whom they were not cultivated to those by whom they were made productive.

The gentleman stated that he should vote for the pending railroad grant with great pleasure, and that he hoped from it similar beneficial results to those effected by the grant in favor of the Illinois and Michigan canal. The gentleman, then, is not opposed to the appropriation of the public domain for purposes such as are aimed at by this bill, neither is he opposed to the policy of granting alternate sections to States or individual citizens, in aid of enterprises such as the one now proposed He has been the acknowledged advocate, champion, and father of this policy. I ask, sir, how, or why, has the gentleman just now, at this moment, changed his position and his front upon this whole question?

Pacific Railroad-Mr. McDougall.

upon his own broad shoulders he will bear the nighty burden. He will have no aid from the Federal Government; all he asks 18 to be let alone, to be allowed to pass over the public domain, without being sued as a trespasser. It is a matter of sincere and earnest regret with me that I cannot think his capacity at all equal to his sublime anibition.

But, Mr. Chairman, what I most apprehend, what I most fear, is, that the gen leman is still merely talking about a railroad to the Pacific; that he has never heretofore, and that he does not now, mean earnestly to act. I will state my reasons: The gentleman talks about the promises of the solid men of Boston, and solid men elsewhere. Now, if promises were money; if promises were grading, superstructure, or a road, they might amount to something But I am a little surprised that this gentleman should make promises the premises for so vasi a conclusion. I have always understood the gentleman had a special aversion to promises; have even understood that he would not take a bank note for a dollar; and I never supposed that after having, from his want of faith in promises, won the sobriquet of Old Bullion, he would promise to build a railroad to the Pacific on promises He has promises of the solid men of the East-promises to do what? To build a road to the Pacific? By no means. They may have informed him that, if the country was as beautiful, and as practicable, and the enterprise as productive, as he described, they would favor it, and subscribe stock towards its construction. Information like this has not even the weight of a promise. As yet no company has been organized, no route has been selected, and I do not, and cannot, believe that the gentleman has any faith in suggestions or assurances so vague and indefinite as those of which he speaks must necessarily be. But a short time since he thought the work too great for private enterprise. He thought the road should be constructed, and should be owned by the Government; that it should be an Appian way, a highway for nations, a highway as free as our rivers; and I say again, In 1849 he introduced his first bill, one of the and I say to the gentleman from Missouri, I have bills to which I have already alluded. Upon the no faith in his promises, and I do not believe he has introduction of this bill, he delivered one of his any faith in them. When the gentleman last aporiental discourses, a discourse perfect in its rhet-pealed to the Federal Government, as the only poworic, gorgeous in its descriptions, and overflowing with historical illustrations. I have read the speech, read it several times, not with curiosity merely, but with delight, at the glowing, gorgeous picture he presented. From such a speech, one would ordinarily look for some result, or at least some action; and it seemed strange to me that, upon an examination of the record, I could not find that the gentleman had ever called up the bill he had introduced It seemed strange to me that, after exhausting so much labor and so much eloquence upon his measure, he should not have asked a vote upon it; but permitted it to lie dead upon the table of the Senate.

There is another singular and significant feature in the history of the gentleman's relations to the Pacific railroad. As early as 1845 he advocated the construction of a railroad to the Pacific, but he then proposed no action.

In 1850 the gentleman from Missouri introduced his second Pacific railroad bill. He introduced his bill, made another of his oriental speeches, sent his speech to the country, and again let the bill lie dead without moving towards its resurrection. On the 4th of March, 1853, he sent his address to the people of Missouri, extracts from which I have read to you. It is now near the 4th of March, 1855 Öne session of Congress has expired, and another has nearly passed, and no one here has heard of any corresponding proposition from the gentleman from Missouri.

Instead of finding him, in his fficial position, urging upon Congress any one of the measures he has proposed, we find him, within the last month or two, making pilgrimages and speeches in the North and East, and in his speeches repudiating the idea of Government aid in the construction of the road to the Pacific. The gentleman has made speeches in the North and East, as he has made speeches in Washington I would like to ask of the gentleman, does he expect speeches to build the road? But he says he has twenty of the solid men of Boston at his back; that he can build it by private enterprise alone; that he has raised millions-has it, has it in his pocket; has the railroad in his pocket-a ponder ous burden for one man to carry, but it seems not even to stoop his back. He will build the railroad himself, alone he will do it; another Hercules, I

er adequate to this great enterprise, private railroad enterprises were prosperous. Now, at this moment, when all individual enterprises of this kind are under a cloud, when every railroad capitalist, and every railroad interest, is laboring under the greatest embarrassment, he discovers suddenly, and for the first time, that private individual capital is altogether equal to the undertaking. What, sir, does this change of position and opinion mean? or rather, what has caused this change in the gentleman's tactics? Why is the gentleman from Missouri so much disposed, just at this moment, to play the Hercules? Can it be that his proposition, his pilgrimages, and his discourses, since the commencement of the present session, are aimed at the assembled wisdom of his State, now in council at Jefferson City, rather than at overcoming the plains and mountains that separate us from the Pacific? I can conceive of no other satisfactory solution of his strange and inconsistent course upon the subject under consideration.

On yesterday evening the gentleman from Maryland, [Mr. HAMILTON,] a gentleman of altogether a different school from the gentleman from Missouri, presented to the committee his views in opposition to the pending bill. He frankly avowed his opposition to all grants of land, and to all Government aid, to railroads. He regarded all such acts on the part of the Government as unconstitutional. I shall endeavor briefly to respond to some of the points made by him; and I will say here, that, however lightly I may regard the substance of his argument, I will accord to him the credit of sincerity. The gentleman from Maryland sets out by assuming, that under the provisions of this bill, a road to the Pacific must be a Government road. This assumption he first bases upon the clauses in the bill authorizing the Secretary of War to advertise for proposals, and to contract for the construction of the road. If the Secretary of War is to advertise and contract for the construction of the road, he concludes it must necessarily be a Government road. He does not seem to consider that the correctness of

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his conclusion could be at all affected by the relation of the Government to the contract, or the interest the Government might have, either in its breach or performance.

I will ask the gentleman: Suppose that when this Congress granted to the State of Illinois land to aid in the construction of the Illinois and Michigan canal, there had been introduced into the grant a stipulation, or condition, providing that the State of Illinois should forfeit the land so granted, or its equivalent, in case she should fail to construct the work within a time fixed. Would such a stipulation have made the work a Government work? Suppose again, that, instead of the State of Illinois, the offer had been made to individuals, or a corporation, and to secure fair competition, the proposal was to be advertised, and competent parties had come in and accepted the proposal, and contracted accordingly, will he contend that such an advertisement and contract would make the work a Government work? By a Government work is meant Government proprietorship in a work. Neither the advertisement or contract suggested involves any idea of proprietorship on the part of the Government; it would devolve upon the Government neither the construction, ownership, or control of the work.

So far as this bill is concerned, it is a sufficient answer to all such points to show that this bill involves only the exercise of certain specific powers by Congress:

First-The power to grant lands, by alternate sections, in aid of a railroad enterprise.

Second-The power to contract for transportation for Government purposes.

Third-The power to stipulate with the grantees and contracting parties, that they will construct a road in a certain time, and in a certain manner, under the penalty of forfeiture of the property and rights secured to them by the bill, and also the further forfeiture of such further security as they agree to give, as an assurance that they will undertake and complete the work in good faith; or, in other words, the power to stipulate for security sufficient to protect the Government and its property from the schemes of irresponsible speculators.

Now, sir, I do not understand the power to contract for transportation to be questioned. I do not understand the power to stipulate conditions of forfeiture to be questioned; but as a portion of the road may be forfeited to the Government, the gentleman from Maryland thinks that the portion so forfeited would become a Government road, and, therefore, an unconstitutional road. He does not insist that it will be necessarily an unconstitutional road; for if, after forfeiture, it should be run and used for Government and public purposes alone, then it would be a constitutional road; but if, after forfeiture, it should be run and used for private and commercial purposes, then it would be an unconstitutional road. I have heard of unconstitutional laws, but never of unconstitutional roads before. But if the gentleman means thus to test the constitutionality of the bill now pending, I confess it is a test the strangest that I have met with in my experience. He asserts that the constitutionality of an exertion of power by this Congress, is to be determined by what may be the policy or legislation of the Government years to come; that the constitutionality of the pending bill is to be determined by the uses to which the road shall be put after it may have become forfeited to the Govern

ment.

Mr. HAMILTON, (interrupting.) The gentleman misinterprets my remarks. I said its constitutionality depended upon its object. If it were to be used as a necessary and proper instrument, to execute an enumerated power in the Constitution, then it would be constitutional, otherwise

not.

Now,

Mr. McDOUGALL. The gentleman said, if, in case of forfeiture, it was to be used for Government purposes, he could see no objection to the bill; but if it was to be used for private purposes it was altogether unconstitutional. sir, the object contemplated in case of the forfeiture of this road, is no object at all. No such thing as a forfeiture is contemplated. Forfeiture is not an object of this bill, neither is any contingency dependent upon such forfeiture an object in the legislation now proposed. If, by accident or