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1st Session.

No. 44.

IN SENATE OF THE UNITED STATES.

FEBRUARY 5, 1850.
Ordered to be printed.

VIEWS OF THE MINORITY.

Mr. HUNTER, from the select committee to which were referred the memo

rials of sundry citizens of the United States, usking indemnity for spoliations by the French prior to the thirty-first of July, 1801, submitted the following, as the views of the minority of that committee: These claims, which have been so often presented to the consideration of Congress, are for indemnity for depredations committed by the French on our commerce from 1793 to 1800. These spoliations were made during a part of the time of those long wars growing out of the French revolution, which was a period of golden harvests to our commerce, and gave it a development almost unexampled for its extent and rapidity in the history of nations. Whilst we enjoyed immense advantages in the carrying trade, which our position as neutrals enabled us to conduct, our commerce was subjected to risks which it would have escaped in time of peace. Amongst these were the temptations to spoliations upon our commerce, arising out of the state of war, and from the exasperated state of feeling between France and Great Britain, which too often made them forget the rights of neutrals in their desire to strike at each other. The claims of our citizens for indemnity for their losses were long the subject of controversy between the governments of the United States and France, until all negotiation, as to a part of them, was abandoned by the two governments. Since that time they have been presented as legitimate demands upon this government, but without success, during a period of nearly 50 years. It remains to be seen whether these claimants will now be more successful. If the debt be really due to them it ought to be paid, although it will, doubtless, be considered as unfortunate for the reputa tion of the country, that it should be thus convicted of having refused justice to its citizens for nearly 50 years. Still more unfortunate will it be for that reputation if these claims are established upon arguments which shall convict our government of a deliberate violation of obligations incurred under the solemnity of a treaty to its ancient ally, and which place it in the wrong, in its relations towards France during the earlier administrations of its affairs. But the claims of justice are imperative, and higher even than the character of our government, or of its early administrations, for probity and fair dealing. Should the justice of the claims be clearly established, we ought to satisfy them even at this expense. But claims of this character certainly require investigation before we make such admissions as these. They rest upon the ground that France had claims upon us under her treaty of 1778, and the consular convention. of 1788, which she renounced, in consideration of our abandoning all claim for indemnities for losses sustained by our citizens. It is maintained that the United States, by that act, incurred an implied obligation to pay those claims, as they had thus converted them to a public use and obtained a valuable consideration for them from France. To sustain this position, it is maintained by the claimants that the treaties of 1778 and 1788, between the United States and France, were in force in September 1800, although our government in 1798 had declared them to be annulled through the misconduct of France; that there was an obligation on our government to press these claims even to war, or to pay them itself; and that, having failed to discharge their duty in the first particular towards these claimants, it is now bound to pay them the debt. How far are these propositions true, and can they be sustained to such an extent as to justity the demand? To examine the first proposition, it may be necessary to review, briefly, the history of the time, so far as it may affect the obligation of these treaties. The treaty of 1778 established a defensive alliance between the two countries, and also provided that free ships should make free goods; thus enlarging the privileges, as to the carrying trade, which the United States would enjoy as nentrals, beyond what could at that day be claimed under the law of nations. There were also certain provisions as to the rights of privateers to bring in prizes, and as to the right of consuls to jurisdiction in the respective countries, as given in the convention of 1788, which became the subject of dispute between the two nations. The 22d article of the treaty of 1778 provided that no nation, at enmity with either the United States or France, should fit out privateers in the ports of either the United States or France. This denial of the right to other nations to fit out privateers in our ports against France, was treated as an implied obligation to permit France to fit out privateers in the United States against nations with whom we were at peace; and that, too, in the absence of any express article to that effect, and with a full knowledge that it would have been a violation of our obligations as neutrals towards Great Britain. The denial of this monstrous assumption was one of the causes of complaint, on the part of France, against our government for a violation of the treaty. Can it be necessary to argue such a proposition? The next subject of complaint was our denial of the right of the French privateers to sell their prizes, duty free, in our ports. They claimed the right under the 17th article of the treaty of 1778, which allowed their ships to bring their prizes into our ports and carry them whithersoever they pleased. The refusal of our government to permit them to sell their prizes, free of duty, was treated by them as a violation of our obligations under the treaty, upon no better ground than that the right to bring in prizes and carry them whithersoever they pleased, implied the right to sell these prizes, free of duty, within our ports. Surely it cannot be necessary to argue such a proposition as this.

Another subject of complaint on the part of the French was, that their consuls were not allowed to decide, within the United States, whether vessels taken by their cruisers were lawful prizes or not; thus claiming for them admiralty jurisdiction within the United States. This demand was founded on the 8th article of the consular convention of 1788, which gave these consuls the right to try civil disputes and matters arising in their own ships; but the article especially stipulates that their functions are to be confined to the interior of the ship. The cases were to arise “ in vessels of the respective nations,” and the functions of the consuls to be confined, as above stated, to the interior of the ship. How this could give them the right to try prize cases affecting the rights of other nations, it is difficult to perceive. Another subject of complaint arising out of the same article was, a failure on our part to furnish, by legislation, to these consuls, the necessary means to execute their judgments. (See No. 68, vol. 5, p. 131, Senate Docs. 1st sess. 19th Congress—in relation to French spoliations.*) But it was admitted by themselves that the consular convention had made no such express stipulation. The chief offence and great subject of complaint was the treaty between the United States and Great Britain, commonly known as Jay's treaty. This treaty, which defined what should be considered contraband between the two nations, according to the law of nations, as it was then understood, was less liberal towards our trade than the treaty with France, made in 1778. The stipulation that provisions should be considered as contraband, was especially offensive to the French government. They complained that this was a violation of our neutrality. (Ibid., 133.) This treaty, too, in accordance with the law of nations, allowed British cruisers to seize French property in American vessels, whilst French cruisers could not, on account of the treaty of 1778, seize British property under like circumstances. This, amongst other things, led to the decree of the 2d March, 1797, of the Executive Directory of France, in which it was claimed that the treaty of 1778 placed France on the footing of the most favored nations with the United States, and therefore she was entitled to the same privileges in relation to the seizure of enemies' property, as had been given by treaty to Great Britain. Hence arose one of the most prolific sources of annoyance to our trade and of difference between the two countries. But although citizen Genet complained of this feature of the treaty, yet in the summary before referred to, it is not spoken of as a violation of the treaty of 1778, but as giving France new rights under that treaty. The question of whether provisions should be considered as contraband or not at that day, is not necessary to be argued in order to ascertain wliether Jay's treaty was a violation of our obligations to France under the treaty of 1778. It was a controverted point then, as now, in the law of nations, whether provisions were to be considered as contraband or not. Perhaps the weight of authority at that time inclined towards the view of the subject which was taken in the treaty. At any rate, it was no violation of our treaty with France, nor was it a departure from our neutrality, in order to obtain peace with a powerful nation, to settle beforehand a controverted question of national law, and which is usually disposed of by treaty; for even now, provisions are defined to be contraband or not, according to the particular treaties governing the case. But even if the article were clearly not contraband, we had a right to fix it so, as between ourselves and an. other nation, without offence to third parties, if our own necessities and interests so required. Much has been said of the mutual guaranty in the treaty of 1778, and of the obligations of the United States under it. Whatever its obligations were, France did not call upon us to execute that article. Up to 1796, we have the declarations of our Secretaries of State, that no such demand had been made. Amid the grievances so

*The succeeding references in this report which note merely the page, are to this document.

often and loudly proclaimed by France, this is nowhere to be found in her public documents, as one of those particularly specified. On the contrary, she complained of violations of cur neutrality, and it was probably her policy as well as interest that we should occupy the position of neutrals at that time. The trade which through our means she was enabled to carry on, was probably worth more than our assistance would have been if we had joined in the war. She did not formally relinquish the guaranty, because she knew its inconveniences to us, and she wished to retain it for purposes of negotiation. The expression referred to in Mr. Adet's letter, November 15, 1796, cannot be construed into a demand of the execution of the guaranty, but refers to another subject. He complains (page 367) that “ we allow the French colonies to be declared in a state of blockade, and its citizens interdicted the right of trading with them.” In the summary of grievances of the French government, made March 9, 1796, it is said, (page 133,) speaking of us, “They have consented to extend the denomination of contraband even to provisions. Instead of restricting it, as all treaties have done, to the case of an effective blockade of a port, as forming the only exception to the complete freedom of this article, they have tacitly acknowledged the pretensions of England to extend the blockade to our colonies, and even to France, by the force of proclamation alone.” It was not the execution of the guaranty which Adet demanded; he was complaining of an article in Jay's treaty. But if France had called upon us for the execution of the guaranty, to make out the casus fæderis, she must have shown hers to be a defensive war. Our government did not admit that the casus fæderis had occurred in the war then existing, (see instructions to our ministers, July, 1797, page 458;) and so much is to be said on both sides of this question, that the right of France, if it existed at all-which is by no means admitted—was not clear enough to justify her in demanding the execution of the guaranty. But be that as it may, she certainly made no demand for its execution previously to 1796, and before that time her own conduct had been such as to forfeit her rights under the treaty. Let us review, now, the conduct of France herself in relation to these treaty obligations. On the 9th May, 1793, she issued a decree which violated the provision of the treaty of 1778, making the goods of an enemy free in our ships. Provisions, too, which by the treaty were not contraband if on their way to an ememy's port, were then so considered, (page 43.) Our vessels, 92 in number, were seized and detained at Bordeaux in 1793 (page 75,) and in July (page 149) a decree was passed to treat all neutral vessels as the English treated them. In March, 1797, a decree was issued, confiscating all merchandise belonging to an enemy, and if the productions of a hostile people were not sufficiently preved to be neutral property, they were directed to be seized on board of American vessels. American vessels without a role d'equipage were suddenly declared to be good prizes; and thus vessels, although supplied with proper papers under our law, were taken because they did not have papers according to a certain antiquated French form, of which the Americans were ignorant. If articles of the growth or manufacture of an enemy, although the property of Americans, were found in American vessels, they were seized under the pretence that they were not proved to be neutral. Depredations of all sorts were committed on our commerce, and the extraordinary commission consisting of Marshall, Pinckney, and Gerry appointed to treat of these matters, was repulsed. Wearied out with these repeated outrages and insults, in July, 1798, an act of Congress was passed reciting these outrages, and declaring the treaties with France to be abrogated. From that period the treaty obligations were annulled by act of Congress; an act justified by the law of nations, and binding at least upon our own citizens. “Between the year 1793, (says Mr. Benton-see App. Cong. Globe, page 898,) and the complete restoration of friendship with France in 1801, the appropriations for the army were above $20,000,000; those for the navy exceeded $15,000,000; the authorized loans were above $25,000,000; duties on imports were increased; direct taxes were laid. The stamp act and excise also made its appearance among us. The statute book from 1793 to March 4, 1801, is thickly sprinkled over with acts for these taxes, loans, and appropriations." 'Again: “ Ships of war were built; the regular army was augmented; a provisional army of 10,000 men was raised, and Washington was called to take the command; ships of war convoyed the merchantmen.” Blood we know was actually spilt in the collision of armed ships of the two nations. For an abstract of the various acts of hostility towards France, see an extract from the speech of Judge Bell of Kentucky,(App. Cong. Globe, 1st session 29th Congress, page 901.) Such was the state of affairs under which the commission, consisting of Ellsworth, Davy, and Murray, was sent out to treat with France. When the negotiations commenced which led to the treaty of September, 1800, the correspondence on both sides was conducted on the basis of an existing and uninterrupted peace. The reason was obvious: according to the American construction of the treaty, their claim for indemnities would be much larger if tried according to the principles of the treaty, than if based simply upon the rights of their government according to the code of national law. They, therefore, treated upon the basis of the existence of the treaty until it was abrogated by their government, in 1798. The French commissioners professed to consider this treaty as having existed the whole time, and as never having been interrupted up to the period of the last negotiation. It was upon this basis that they claimed the existence of the guaranty, and all those peculiar privileges which, according to their construction, they were entitled to under the treaties of 1778 and 1788. The history of the negotiation had shown our aversion to the guaranty. They did not doubt their ability to escape from the payment of the indemnities, by urging their claims to the guaranty, and they probably hoped to obtain some of those privileges which had been claimed and refused under those treaties. The whole history of the negotiation shows that these were the objects which France valued most; indeed it is probable that, except for purposes of negotiation, that article was little valued by France. But however it commenced, the progress of this negotiation at last developed the real state of the case. It had become obvious that there was an irreconcilable difference of opinion between the two commissions; the Americans denying, and rightly, that the treaty was in existence since 1798, or that France had any claims upon them for infractions of it. The French, on the other hand, maintained that their claims under this treaty were a fair offset to the American demands for indemnities. The resources of diplomacy had now been exhausted; a system of hostilities had been pursued which had led to a waste of public money, the capture of property, and the effusion of blood. The interests

peace in both countries were great and pressing; and as these were

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