In considerable heat the ministers parted. (Ibid., 632, 633.) The next day the Americans made another effort, because, as they wrote in their journal (ibid., p. 634), "being now convinced that the door was perfectly closed against all hope of obtaining indemnities with any modifications of the treaty, it only remained to be determined whether, under all circumstances, it would not be expedient to attempt a temporary arrangement which would extricate the United States from the war or that peculiar state of hostility in which they are at present involved, save the immense property of our citizens now pending before the council of prizes, and secure, as far as possible, our commerce against the abuses of capture during the present war;" therefore they proposed (ibid., 635) that as to the treaties and indemnities the question should be left open; that intercourse should be free; then, with suggestions as to property captured and not definitively condemned, and property which might thereafter be captured, they asked an early interview.

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The French still insisted that a stipulation of indemnities involved an admission of the force of the treaties (ibid., pp.635–637), and after argument proposed that the discussion of the indemnities, together with the discussion of article 11 of the treaty of alliance and articles 17 and 22 of the treaty of commerce, be postponed, but with the admission that the two treaties are "acknowledged and confirmed as well as the consular convention of 1788;" that national ships and privateers be treated as those of the most favored nation; that national ships be restored and paid for, and that the "property of individuals not yet tried shall be so according to the treaty of amity and commerce of 1778, in consequence of which a rôle d'équipage shall not be exacted, nor any other proof which this treaty could not exact." So, after months of negotiation, the French ministers come back flat-footed upon the treaties as still existing, something which our representatives were forbidden by their instructions to admit. Nevertheless this proposal formed the text for discussion, and upon so slight a foundation was built the treaty of 1800.

After prolonged negotiation, and after striking out the word "provisional" in the name or description of the new treaty, the American commissioners signed it, although with great reluctance, "because they were profoundly convinced that, considering the relations of the two countries politically, the nature of our demands, the state of France, and the state of things in Europe, it was [their] duty, and for the honor and interest of the Government and people of the United States, that [they] should agree to the treaty rather than make none. (Ibid., p. 640.)

The vital effect of this negotiation as explanatory of the treaty of 1800, upon which the rights of these claimants are founded, explains the rehearsal of its details during which the so-called ultimatum of our Government was abandoned and the contention of the French Government as to the existence of the treaties was admitted.

Starting under their instructions, events had forced the ministers to offer unlimited recognition of the treaties of 1778, coupled with a pecuniary equivalent to extinguish in the future their most onerous provisions (ibid., 643); even this was not accepted, and the French, returning to their original ground, said that no indemnity could be granted unless the treaties were recognized without qualification as to the future, and this, they said, with the avowed object of avoiding the payment of indemnity. (Ibid.) The American ministers had then but two courses open to them, either to quit France, leaving the United States involved in a dangerous contest, or to propose a temporary arrangement, reserving for later adjustment points which could not then be satisfactorily settled. (Ibid., p. 644.) They elected the latter course, and the treaty signed at Paris the 30th day of September, in the year 1800, by Ellsworth, Davie, and Murray on the one hand, and J. Bonaparte, Fleurieu, and Roederer on the other, became part of the supreme law of the land, and was so proclaimed by the President upon the 21st day of December, 1801.

ASSUMPTION OF THE CLAIMS BY THE UNITED STATES.

But between its signature and proclamation a very important history intervened, one extremely interesting to the claimants at this bar, and which has been the cause of much argument and contention.

The compromise by our ministers, to which they were forced by the position of the French Government, was contained in the second article, which read:

"The ministers plenipotentiary of the two parties not being able to agree at present respecting the treaty of alliance of 6th February, 1778, the treaty of amity and commerce of the same date, and the convention of the 14th of 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 conventions shall have no operation, and the relations of the two countries shall be regulated as follows."

It is apparent that this article makes the treaty temporary and provisional in its nature; it admits that the existence or non-existence of the treaties of 1778, with the liabilities thereby imposed, is open to discussion, and that the indemnities are not provided for; that is, that the very first of the so-called "ultimata" of Secretary Pickering was temporarily abandoned. The Senate advised and consented to the ratification of the treaty provided this article be expunged, and in its place the following article be inserted:

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

Napoleon thereupon consented (July 31, 1801) "to accept, ratify, and confirm" the convention, with an addition importing that it should be in force for the space of eight years, and with the retrenchment of the second article:

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

The ratifications were exchanged in Paris, July 31, 1801. The treaty, with its addenda, was again submitted to the Senate, and in that form received the approval of that body (December 19, 1801), when it declared that it considered the convention "fully ratified," and returned it to the President for promulgation.

What the respective pretensions were which were the object of the second article does not admit of a shadow of doubt. On the one hand, the alleged continuing existence of the treaties incidentally involving national claims for past acts on our part, and more particularly a right to future privileges; on the other hand, indemnity to our citizens for spoliations.

Our claims were good by the law of nations, and we had no need to turn back to the treaties for a foundation upon which to rest our arguments. Not so with France. Her national claims must necessarily rest on treaty provisions, and the future privileges she desired above all else could in no way be so easily or fully secured as by an admission of the continuing force of those instruments. She therefore insisted that for indemnity we must give treaty recognition. This we absolutely refused to do, and upon this rock twice did the negotiations split, only to be renewed by the patience and patriotism of our ministers. After months of weary discussion the parties stood as to this point exactly where they started, and to save their young and struggling country from further contest the American ministers consented to the compromise. Then the Senate struck the compromise out, and France said in effect, "Yes, we agree, if it is understood that we mutually renounce the pretensions which are the object of that article," to which the Senate and the President, by their official action, assented. So died the treaties of 1778, with all the obligations which they imposed, and with them passed from the field of international contention the claims of American citizens for French spoliation.

In this whole transaction the treaties were urged on the one side against indemnities on the other. Admission of the continuing force of the treaties was the great desire of France to which she subordinated all else, even her national claims; on the other hand, the United States could by no possibility admit such a contention, for to do so would set them instantly at odds with their former enemy. Having given, in 1794, to Great Britain the exclusive port privileges secured to France in 1778, they could not in 1800 again reverse their policy, and, by returning these privileges to France, infringe their agreement with Great Britain.

Yet this was the issue, an issue never retreated from by the French; as they put it, "either the ancient treaties with indemnity [for spoliations] or a new treaty without indemnity." Article 2 of the treaty of 1800 still presents these counter propositions linked together, when it postpones the discussion of the treaties and at the same time postpones the discussion of the indemnities.

When the United States struck out that second article and assented to Napoleon's proviso that by so doing both states renounced the pretensions which were its object (that is, the treaties and these claims), the contract was complete. That there was a 'bargain," to use Madison's word, is apparent from the instrument and the negotiations which have been recited as preceding it.

Four years later Mr. Madison, then Secretary of State, instructed Mr. Pinckney, minister in Spain, that "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. The claims we make on Spain were never admitted by France nor made on France by the United States. They made, therefore, no part of the bargain with her, and could not be included in the release." The counsel for defendants contends that Mr. Madison referred in this letter to "national" claims on the part of the United States for national injury, in the destruction of commerce, the increased cost of the Army and Navy, and the insult to the flag.

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It should be noted, in answer to this position, that the claims against Spain, then under discussion, were exactly these claims now at bar, except that Spain was the party defendant instead of France. As against France captures made by French privateers under French decrees were taken into French ports, and there condemned. As against Spain captures made by French privateers under French decrees were taken into Spanish ports and there condemned by French consuls under the authority and protection of Spain. Spain plead that these claims were settled by the second article of the treaty of 1800, and it was in answer to this plea that Mr. Madison wrote his letter. The subject matter of the instruction to Pinckney was these claims and nothing else, for we were not urging "national" claims on Spain, but the claims subsequently described in the Spanish treaty as those "on account of prizes made by French privateers and condemned by French consuls, within the territory and jurisdiction of Spain." (Treaty of 1819, Article IX.) These claims were finally recognized, and paid through the Florida purchase. (Ibid., Art. XI; see, also, treaty of 1802.)

But the negotiations of the Ellsworth mission are conclusive that the claims were not "national" in the sense of governmental as opposed to individual. It is unnecessary to repeat extracts from the correspondence already given, and we need only refer to the project submitted by our ministers the 18th of April, 1800, which describes the claims as those "of divers merchants and other citizens of the United States" (Doc. 102, pp. 585–589), thus following their instructions, which called them "claims of our citizens." (Ibid., p. 575.)

Mr. Pickering, Secretary of State under the first two Presidents, and who, above all others, was familiar with the situation and with the rights of the parties, said that we bartered "the just claims of our merchants" to obtain a relinquishment of the French demand, and that

"It would seem that the merchants have an equitable claim for indemnity from the United States. * * * The relinquishment by our Government having been made in consideration that the French Government relinquished its demands for a renewal of the old treaties, then it seems clear that, as our Government applied the merchants' property to buy off those old treaties, the sums so applied should be reimbursed." (Mr. Clayton's speech, 1846.)

Mr. Madison, as we have seen, said to Spain that the claims were admitted by France, and were released "for a valuable consideration," and he termed the transaction a "bargain."

Mr. Clay, in the Meade case, in which his opinion was given in 1821, five years prior to his report upon French spoliations, said that while a country might not be bound to go to war in support of the rights of its citizens, and while a treaty extinction of those rights is probably binding, it appears

"That the rule of equity furnished by our Constitution, and which provides that private property shall not be taken for public use without just compensation, applies and entitles the injured citizen to consider his own country a substitute for the foreign power."

In this conclusion Chief Justice Marshall strongly concurred, saying to Mr. Preston that

"Having been connected with the events of the period and conversant with the circumstances under which the claims arose, he was, from his own knowledge, satisfied that there was the strongest obligation on the Government to compensate the sufferers by the French spoliations." (Clayton's speech, 1846.)

And he repeated to Mr. Leigh distinctly and positively "that the United States ought to make payment of these claims."

This view of the distinguished jurist and diplomatist is sustained by forty-five reports favorable to these claims, made in the Congress, against which stand but three adverse reports, all of which were made prior to the publication of the correspondence by Mr. Clay in 1826. Besides Marshall, Madison, Pickering, and Clay, the validity of the claims has been recognized by Clinton, Edward Livingston, Everett, Webster, Cushing, Choate, Sumner, and many other of the most distinguished statesmen known to American history, and while opponents have not been wanting, among the most eminent of whom were Forsyth, Calhoun, Polk, Pierce, Silas Wright, and Benton, still the vast weight of authority in the political division of the Government has been strenuous in favor of the contention made here by the claimants.

The judiciary has seldom occasion to deal with the abstract right of the citizen against his Government; for in a case raising such a question the individual is without remedy other than that granted him by the legislature. The question of right, therefore, is usually passed upon by the political branch of the Government, leaving to the courts the power only to construe the amount and nature of the remedy given. Still judicial authority is not wanting in support of the position that by the agreement with

France the United States became liable over to their individual citizens. Lord Truro laid down in the House of Lords as admitted law

"That if the subject of a country is spoliated by a foreign Government he is entitled to redress through the means of his own Government. But if from weakness, timidity, or any other cause on the part of his own Government no redress is obtained from the foreign one, then he has a claim against his own country." (De Bode v. The Queen, 3 Clarke's House of Lords, p. 464.)

The same position is sustained by that eminent writer upon the public law, Vattel, who held that while the sovereign may dispose of either the person or the property of a subject by treaty with a foreign power, still, "as it is for the public advantage that he thus disposes of them, the state is bound to indemnify the citizens who are sufferers by the transaction.' (Book 4, chap. 2.)

Napoleon, from his retirement in St. Helena, testified that by the suppression of the second article of the treaty of 1800 the privileges which France had possessed by the treaty of 1778 were ended, and the "just claims which America might have made for injuries done in time of peace were annulled, adding that this was exactly what he had proposed to himself in fixing these two points "as equi-ponderating each other." (Gourgaud, Memoirs, vol. 2, p. 129.)

Finally, Senator Livingston, familiar with the whole subject as a contemporary, in his report upon it to the Senate, said:

"The committee think it 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 nonperformance 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 obligations to satisfy? 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 beg leave to bring in a bill for that purpose.

The word "national" has been largely used in argument in allusion to the different kinds of claims at different periods brought into the discussion, and is a convenient word if clearly understood in the connection in which it is used. All claims are "national" in the sense of the jus gentium, for no nation deals as to questions of tort with an alien individual; the rights of that individual are against his Government, and not until that Government has undertaken to urge his claim-not until that Government has approved it as at least prima facie valid-does it become a matter of international contention; then, by adoption, it is the claim of the nation, and as such only is it regarded by the other country. The name of the individual claimant may be used as a convenient designation of the particular discussion, but as between the nations it is never his individual claim, but the claim of his Government founded upon injury to its citizen. Nations negotiate and settle with nations; individuals have relations only with their own Governments. Other claims, sometimes the subject of argument, rest upon injury to the state as a whole; of these an apt illustration is found in the socalled "indirect" claims against Great Britain, disposed of in the arbitration of 1872, and in the claims advanced by France for injury caused by non-compliance with the treaties of 1778.

Thus, while all claims urged by one nation upon another are, technically speaking, "national," it is convenient to use colloquially the words "national” and “individual" as distinguishing claims founded upon injury to the whole people from those founded upon injury to particular citizens. Using the words in this sense, it appears that in the negotiations prior to the treaty of 1800, and in effect in the instrument itself, national claims were advanced by France against individual claims advanced by the United States. France urged that she had been wronged as a nation; we urged that our citizens' rights had been invaded. If "national" claims had been used against "national" claims, and the one class had been set off against the other in the compromise, of course the agreement would have been final in every way, as the surrender and the consideration therefor would have been national, and no rights between the individual and his own Government could have complicated the situation. But in the negotiation of 1800 we used “individual" claims against "national" claims, and the set-off was of French national claims against American individual claims. That any Government has the right to do this, as it has the right to refuse war in protection of a wronged citizen, or to take other action, which, at the expense of the individual, is most beneficial to the whole people, is too clear for discussion. Nevertheless, the citizen whose property is thus sacrificed for the safety and welfare of his country has his claim against that country; he has a right to compensation, which exists even if no remedy in the courts or elsewhere is given him. A right often exists where there is

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no remedy, and a most frequent illustration of this is found in the relation of the subject to his sovereign, the citizen to his Government.

It seems to us that this "bargain" (again using Madison's word), by which the present peace and quiet of the United States, as well as their future prosperity and greatness, were largely secured, and which was brought about by the sacrifice of the interests of individual citizens, falls within the intent and meaning of the Constitution, which prohibits the taking of private property for public use without just compensation. We do not say that for all purposes these claims were "property" in the ordinarily accepted and in the legal sense of the word; but they were rights which had value, a value inchoate, to be sure, and entirely dependent upon adoption and enforcement by the Government; but an actual money value capable of ascertainment the moment the Government had adopted them and promised to enforce them, as it did in August, 1793, and constantly thereafter. That the use to which the claims were put was a public use cannot admit of a doubt, for it solved the problem of strained relations with France and forever put out of existence the treaties of 1778, which formed an insuperable obstacle to our advance in paths of peace to the achievement of commercial greatness.

TREATY OF 1803.

The defendants urge further that the treaty of 1803 finally disposed of all pretensions of citizens of the United States in regard to these spoliations.

One of the principal objects of this treaty is found in the instructions to Mr. Livingston, our minister, wherein the Secretary of State directed his particular attention to claims embraced in the fourth article of the treaty of 1800, describing them as arising from: (1) Cases of capture wherein no judicial proceedings have been had; (2) cases carried before French tribunals, and not definitely decided on the 30th September, 1800; (3) captures made subsequent to that date.' (Madison to Livingston, September 28, 1801, Doc. 102, p. 701.)

Accordingly Mr. Livingston, in January following, complained to the French Government of infractions of the existing treaty (of 1800) in relation to "vessels taken after its signature, " "vessels previously taken where no judicial proceedings had been had, "vessels on which no definitive sentence had been given before that day, or which were removable to the council of prizes; these are fourth-article claims embraced in the modus vivendi therein provided. Claims for vessels which were to have been restored are clearly not claims which had matured prior to September 30, 1800, when the treaty was signed. (Ibid, p. 704.)

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In the next month (February 24, 1802) Mr. Livingston speaks of the differences as "debts," about which he must transmit to his Government a statement of the measures about to be adopted by France, "with a view either to afford it the satisfaction that it will always feel in contributing to the interest of France * * or of putting a stop to credits that must be ruinous to its citizens already suffering under heavy losses sustained by the detention of a considerable capital in the hands of the French Government." (Ibid., 708.) It is thus apparent that these claims, in the view of the negotiator, rested substantially on contract, and it is further apparent, from the text of the note, that these contracts were for supplies to the French fleets and armies.

This is the first subject of negotiation; the second is as to the council of prizes, about which there were "daily complaints of their entire disregard of the treaty," so much so that when a vessel was ordered restored it was sent back in a damaged state and charged with cost of "detention, storage, &c." Fourth-article claims these, as we have already

seen.

Livingston later (April 17, 1802), in discussing the fifth and second articles of the treaty of 1800, says:

"The fifth article expressly stipulates that all debts due by either Government to the individuals of the other shall be paid, but as this would also have included the indemnities for captures and condemnations previously made, and it was the intention of the contracting parties, by the second article, to preclude this payment as depending on a future negotiation, it was necessary to accept from this promise of payment all that made the subject of the second article. On its [the second article] being erased, the fifth article stands alone as a promise to pay, with the single exception of indemnities for captures and condemnations." (Ibid., 717.)

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And he adds that so far as relates to indemnities for captures and condemnations which had been made previous to the signature of the treaty his demand could not be supported.

It seems hardly necessary to quote further from the correspondence, which shows that Mr. Livingston not only never had in mind, but expressly excluded, secondarticle claims, directing his attention first to debts, "confirmed by treaty, as he says (ibid., 729), and second, to vessels seized during or after the negotiation of the treaty