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doned by a treaty of peace which makes no provision for them, because such treaty is considered as an adjustment of all national difference; and where a refusal to compensate injuries to individuals is the ostensible cause of the war, it is made a national claim, and would, in like manner, be extinguished by a peace; and no right would result to the injured party against his own government for indemnity. But if in an uncontroverted case of war the government which had offered the injury should, by the treaty of peace, acknowledge the right of the individual to an indemnity, and his own government should release it in consideration of some advantage given to it in the treaty, surely there could be no doubt that the individual whose rights were thus bartered would be entitled to compensation.
But this was not a case of war, and the stipulations which reconciled the two nations was not a treaty of peace; it was a convention for putting an end to certain differences, &c. The proof of these assertions will be evident to any one who pays the slightest attention to the history of the transaction.
The first public expression of the light in which our government considered the measures which have been detailed, is in the instructions given to Messrs. Ellsworth, Davy, and Murray, in which the envoys are told, after an enumeration of the wrongs sustained by the acts of the French government, “This conduct of the French republic would well have justified an immediate declaration of war on the part of the United States; but, desirous of maintaining peace, and still willing to leave open the door of reconciliation with France, the United States contented themselves with preparing for defence, and measures calculated to defend her commerce. Now, all the measures which have been considered as equivalent to a state of war had been taken previous to the date of these instructions. Our government, then, did not think the two nations in a state of war; and, in conformity with these instructions, the ministers, in one of their first communications in the negotiation, thus characterize the measures taken by the United States: “With respect to the acts of the Congress of the United States, which the hard alternative of abandoning their commerce to ruin imposed, and which, far from contemplating a cooperation with the enemies of the republic, did not even authorize reprisals on their merchantmen, but were restricted solely to the giving safety to their own, till a moment should arrive when their sufferings could be heard and redressed."
The same character is impressed on the whole negotiation--the settlement of indemnities for mutual injuries, and the modification of the ancient treaties, to suit existing circumstances. Nowhere the slightest expression, on either side, that a state of war existed, which would exon erate either party from the obligation of making those indemnities to the other. On the contrary, when it became necessary to urge that those treaties were no longer obligatory on the United States, the ministers rely not on a state of war, which would have put an end to them without any dispute, but on the act of Congress of the 7th July, 1798, annulling the treaties--an act which they themselves did not think, in a subsequen part of the negotiation, any bar to a recognition of the treaties, so as ! limit the operation of an intermediate one made with England. The con vention which was the result of these negotiations, is not only in its fort different from a treaty of peace, but it contains stipulations which woul be disgraceful to our country on the supposition that it terminated a state of war-the restoration of prizes, and payment for vessels destroyed. Neither party considered then that they were in a state of war. Were they so in effect? War, from its nature, is indiscriminate hostility between the subjects of the belligerent powers. Hence it is universally acknowledged that the granting of letters of marque and reprisal does not produce a state of war, because it is limited. Here recourse was not even had to this measure; the right of capture was limited to that of armed vessels, which were dangerous to our commerce-looking to security for the future, but not to indemnity for the past. Besides, the convention was not a treaty of peace, because such a treaty is without limitation; while the convention, being limited to eight years, would, if we had been at war, have been a truce only for that period, at the expiration of which war must have been resumed, as of course, or been followed by a regular treaty of peace. The committee will not swell their report by references to authorities which support these principles, which they hold to be generally acknowledged.
Suggestions also have been made, invalidating these claims on the ground that they were not made the equivalent for the release of the obligations incurred by the United States under the treaties with France, all of these obligations being already destroyed by the act of Congress of 7th July, 1798, and one of them for the guarantee of the islands never having been incurred, because the war on the part of France was an offensive, not a defensive war; and that, therefore, the casus foederis had never occurred.
On the first ground, it will be sufficient to observe, that a treaty being an agreement between two or more parties, no one of them can exonerate himself from its obligation by his own act. On the second, that the fact is for the argument worse than doubtful, and that, if it were well established, the public law is by no means clear; and that one or all of these reasons operated on our envoys to propose a sum of money as a consideration for exonerating us from the obligation of their treaties, thus supposed by the argument to be annulled.
Those who urge such objections overlook the essential fact, not only that nearly all the claims originated prior to the date of the annulling act of Congress of the 7th July, 1798, but that they were generally valid claims against France under the general provisions of international law, and therefore derived little or no aid from treaty stipulations. It was for this reason that the French government refused to ratify the convention of 1800, with our unconditional omission of the second article; since they would thereby have lost their claims to treaties, and left themselves still responsible for the claims under consideration, in virtue of international law,
That the final result of the negotiation was the abandonment of the private claims, as a consideration for exonerating the United States from the national obligations imposed by the treaties and conventions with France, is abundantly obvious. These were the only objects of the second article. These had been, from the beginning to the end of the negotiation, the two objects of counter claim. T'he difficulty of adjusting them led to the expedient, provided by that article, of adjourning the disrussion. It was declared by one party, and solemnly acknowledged by the other, that they were mutually released; and, finally, it has been repeatedly stated by the agents of our government, that the one was given up as an equivalent for the other. Mr. Madison, in his letter to Mr. Pinckney, before referred to, says expressly: “ The claims from which France was released were admitted by France, and the release was for a valuable consideration in a correspondent release of the United States from certain claims on them;" and before the convention was ratified, Mr. Livingston, our minister in France, writes: “ France is greatly interested in our guarantee of their islands, particularly since the changes that have taken place there. I do not, therefore, wonder at the delay of the ratification; nor should I be surprised if she consents to purchase it by the restoration of the captured vessels." These proofs might be greatly multiplied; but the committee think it is sufficiently shown that the claim for indemnities was surrendered as an equivalent for the discharge of the United States from its heavy national obligations, and for the damages that were due for their preceding non-performance of them. If so, can there be a doubt, independent of the constitutional provision, that the sufferers are entitled to indemnity? Under that provision, is not this right converted into one that we are under the most solemn obligation to satisfy ?
The only remaining inquiry is the amount; and on this point the committee have had some difficulty. Two modes of measuring the compensation suggested themselves:
1. The actual loss sustained by the petitioners;
2. The value of the advantages received, as the consideration, by the United States.
The first is the one demanded by strict justice, and is the only one that satisfies the word used by the constitution, which requires - just compensation,” which cannot be said to have been made when anything less than the full value is given. But there were difficulties which appeared insurmountable to the adoption of this rule at the present day, arising froin the multiplicity of the claims, the nature of the depredations which occasioned them, the loss of documents, either by the lapse of time or the wilful destruction of them by the depredators. The committee, therefore, could not undertake to provide a specific relief for each of the petitioners. But they have recommended the institution of a board, to enter into the investigation, and apportion a sum which the committee have recommended to be appropriated, pro rata, among the several claimants.
The committee could not believe that the amount of compensation to the sufferers should be calculated by the advantages secured to the United States, because it was not, according to their ideas, the true measure. If the property of an individual be taken for public use, and the government miscalculate, and find that the object to which they have applied it has been injurious rather than beneficial, the value of the property is still due to the owner, who ought not to suffer for the false speculations which have been made. A turnpike or canal may be very unproductive, but the owner of the land which has been taken for its construction is not the less entitled to its value. On the other hand, he can have no manner of right to more than the value of his property, be the object to which it has been applied ever so beneficial. In the present case, the committee are of opinion that it would drain the treasury, were they to give the petitioners the value of obligations which the sacrifice of their property purchased. The committee are led to believe that a less appropriation than five millions of dollars would be doing very inadequate justice to the claimants; they therefore recommend the insertion of that sum in the bill which they pray leave to bring in for the relief of the petitioners.
To lessen the public expenditure is a great legislative duty; to lessen it at the expense of justice, public faith, and constitutional right, would be a crime. "Conceiving that all these require that relief should be granted to the petitioners, they pray leave to bring in a bill for that purpose.
A BILL to provide for the satisfaction of claims due to certain American citizens, for spolia
tions committed on their commerce prior to the year eighteen hundred. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That satisfaction shall be made, to an amount not exceeding five millions of dollars, to such citizens of the United States, or to their legal representatives, as had valid claims to indemnity upon the French government, arising out of illegal captures, detentions, forcible seizures, and confiscations, made or committed before the thirtieth day of September, eighteen hundred: Provided, That the provisions of this act shall not be extended to such claims as are described in the convention concluded at Paris on the thirtieth day of April, eighteen hundred and three, between the United States and the First Consul of the French republic, nor to such claims as are described in the treaty between the United States and Spain, concluded at Washington on the twentys'cond day of February, eighteen hundred and nineteen, and for the liquidation and payment whereof provision is made in the said convention, or in said treaty.
Sec. 2. And be it further enacted, That, for the purpose of carrying into effect the provisions of this act, and to ascertain the full amount and validity of said claims, three commissioners shall be appointed by the President, by and with the advice and consent of the Senate, who shall meet at the city of Washington, and, within the space of - years from the time of their first meeting, shall receive, examine, and decide upon the amount and validity of all the claims included within the description above mentioned. The said commissioners shall take an oath or affirmation, to be entered on the record of their proceedings, for the faithful and diligent performance of their duties; and in case of the death, sickness, or necessary absence of any such commissioner, his place may be supplied by appointment as aforesaid, or by the President during the recess of the Senate, of another commissioner in his stead. The said commissioner shall be authorized to hear and examine, on oath or affirmation, every question relative to the said claim, and to receive all suitable authentic testimony concerning the same; and the rules for the decision of said commissioners shall be the principle of justice, the law of nations, and the former treaties between the United States and France, to wit: the treaty of amity and commerce of the sixth of February, seventeen hundred and seventy-eight, the treaty of alliance of the same date, and the consular convention of the fourteenth of November, seventeen hundred and eighty-eight.
Sec. 3. And be it further enacted, That the payment of such claims as may be admitted and adjusted by the said commissioners, to an amount
not exceeding five millions of dollars, shall be made pro rata, in such manner as the President of the United States shall prescribe.
Sec. 4. And be it further enacted, That the records of the proceedings of said commissioners, and the documents produced before them, shall, after the commission is closed, be deposited in the Department of State.
Sec. 5. And be it further enacted, That the President of the United States is hereby authorized to take any measure which he may deem expedient for organizing the said hoard of commissioners, and for this purpose appoint a secretary well versed in the French and Spanish languages, and a clerk; which appointments, if made during the recess of the Senate, shall, at the next meeting of that body, be subject to nomination, for their advice and consent.
Sec. 6. And be it further enacted, That the compensation of the respective officers for whose appointment provision is made by this act, shall not exceed the following sums:
To each commissioner, at the rate, by the year, of
Sec. 7. And be it further enacted, That, during the continuance of said commission, all documents and communications having relation to said claims which shall be addressed to or from the said secretary shall be free from postage.
Sec. 8. And be it further enacted, That, for carrying this act into execution, the sum of dollars be, and hereby is, appropriated, to be taken from any morey in the treasury not otherwise appropriated.