The ties of mutual self-interest between ourselves and Great Britain reasserted themselves as soon as the political difficulties between us were disposed of by our separation from that country. It is not necessary to criticize the international morality of our statesmen of that day when we confess that France had a well-founded grievance against us. When we refused to abide by our guaranty to France of the continued possession of her American colonies, when we took away from her the exclusive port privileges secured to her by treaty, and when we made the Jay treaty of 1794 with Great Britain, we committed a flagrant breach of our plighted faith for which she might well call upon us to make reparation.

Great Britain, being the almost undisputed mistress of the seas, took from France in little more than a month all of her possessions in the West Indies, without our lifting a finger to defend them, as we were required to do by the treaty of 1778, "from the present time and forever against all other powers.'

The contest between France and Great Britain reached such a degree of bitterness that neutral rights were trampled under foot by both parties. Each aimed to deprive the other of all benefit of neutral trade. Captures were not limited to enemies' property, to contraband of war or to vessels destined to blockaded ports. Each virtually prohibited all trade with the opposite belligerent. Vessels and other cargoes in peaceful pursuit of lawful trade on the high seas were captured by both without any regard to international law. The action of France was further stimulated by her national and well-founded grievance against us, in that we had failed to maintain our perpetual and solemn guaranty of her peaceable possession of her American colonies and had transferred her exclusive port privileges to her enemy. It was claimed, and probably with some truth, that the first seizures of American merchantmen and their cargoes on the high seas were made in mistake of nationality. Identity of language and similarity of appearance caused the French to mistake Americans for English, as they constantly do even at the present day when the differences between the two nations have become much more marked. Generally these vessels and their cargoes were 'taken into ports of France or her colonies and were there condemned by tribunals exercising jurisdiction in prize. Sometimes they were merely seized and converted by the captors to their own use without any legal form of condemnation. Occasionally the cargo was removed from a vessel, the crew taken on board the capturing vessel and the captured vessel burned. In such cases the crew were set adrift at the convenience of the captors. Of course the captors in such cases did not take the trouble to secure any legal condemnation of either vessel or cargo. Sometimes the master and crew were kept in prison while their vessel was condemned, with no opportunity on their part to appear or make any showing in opposition to the proceedings of the captors. In any case, whether the proceedings took place in France or her colonies, they were in a strange land where the captured master and crew were ignorant of the language and laws, without money or friends, and at the mercy of tribunals committed in advance to an adverse decision.

Many of these seizures were made by French public vessels of war, but a very large proportion by privateers commissioned by authority

of the French Government. France had at that time a very small navy, and therefore commissioned a large number of privateers. Some of the grounds of condemnation were ludicrous. In one case one ground of condemnation was that the American flag carried by the prize vessel contained only 14 stars instead of 15. In another case there was the ground, equally without force in law, but of more importance in the eyes of the French, that the vessel carried three English passengers. In most cases the ground of condemnation consisted in some trifling irregularity in the ship's papers, usually in her rôle d'équipage, or, as it is sometimes termed not with entire accuracy, her crew list.

In the West Indies, and particularly in Guadaloupe, after the recapture of that island from the British, the judges of the prize tribunals not only acted with flagrant disregard of law and justice, but were stimulated to do so by motives of personal interest in the proceedings. The judges were themselves frequently part owners of the very privateers upon the legality of whose captures they pronounced, and participated in the fruits of their own decrees.

The spoliations committed upon our commerce by the other belligerents of the day in the prosecution of their arbitrary measures in disregard of neutral rights were long since settled and paid. Those against Great Britain were settled through a provision in the Jay treaty of 1794 constituting a joint claims commission. Under the action of this commission Great Britain paid in satisfaction of the claims of our citizens many millions of dollars. The spoliations thus committed by England were for the purpose of starving the French by depriving them of supplies being transported in our vessels to French ports, just as the spoliations committed by the French, forming the subject of the claims now under discussion, were largely for the counter purpose of feeding the French people!

Spain acted as an ally of France and many of the French prizes were condemned by French authorities exercising jurisdiction in prize within Spanish territory. Spain, by the treaty of 1819 ceding Florida, was in consideration of that cession released from the payment of all claims of this character for which she was responsible, and the United States agreed to make satisfaction for the claims of our own citizens against Spain. This obligation was fulfilled by our Government; all claims against Spain were satisfied through the agency of a claims commission appointed under the authority of an act of Congress; and its awards were promptly met and paid by appropriations from our Treasury.

Thus of the three powers which committed spoliations on our commerce during this period-Great Britain, France, and SpainFrance is the only one for whose spoliations no reparation has ever been made.

Against France our Government at the time took measures as vigorous as the then feeble conditions of our newly formed Nation permitted, and as prompt as was consistent with the slowness of communication existing between this country and the other side of the

ocean.

One set of envoys after another was sent to France and, after being successively treated in a manner to humiliate both themselves and the Nation which they represented, successively failed to secure any cessation of the injuries or promise of redress.

Congress in 1798 passed a number of measures of a defensive character in preparation for the breach, then regarded as imminent, of peaceful relations with France.

On May 28, 1798, was passed "An act more effectually to protect the commerce and coasts of the United States," giving authority to the President to instruct commanders of the armed vessels of the United States to seize any armed vessel hovering about the coast of the United States for the purpose of committing depredations on American vessels, and also to retake any merchantmen which may have been captured by any such armed vessel.

On the 13th of June, 1798,2 commercial intercourse was suspended between the United States and France, but it was directed that if before the next session of Congress the French Government should disavow its depredations upon the vessels and other property of American citizens and thereby acknowledge the claim of the United States to be considered neutral in the existing European disputes, the President might remit and discontinue the prohibitions and restraints thereby declared.

June 25, 1798, merchant vessels were authorized to defend themselves against search, restraint, or seizure, on the part of any armed vessel sailing under French colors, and to retake any vessel captured by any vessel acting under authority from the French Republic. But there was a proviso couched in the studiously restrained language of the entire series of legislation, directing that whenever the Government of France should disavow and cease its lawless depredations, the President should thereafter instruct the commanders and crews of American merchantmen to submit to any regular search on their part.

On the 7th of July, 1798, the treaties between the United States and France were declared to have been so repeatedly violated on the part of the French Government and that Government was declared to be purusing a system of such predatory violence against the United States that our Government was exonerated from the stipulations of those treaties, and they should not thenceforth be regarded as legally obligatory on the Government or the citizens of the United States.

On the 9th of July, 1798, the public armed vessels of the United States were, if instructed by the President, to have authority to seize any armed French vessel, and the President was also authorized to grant special commissions to the owners of private armed vessels for subduing, seizing, and capturing any armed French vessel, and for the recapture of American property captured by such French vessels, though here again the legislation is hedged around with restrictions showing a high degree of self-restraint on the part of the legislators of the period in view of the severe provocation to which we were subjected.

The legislation of the time is also full of provisions for strengthening our naval armament in preparation for the expected outbreak or complete breach with France. Indeed, the very existence of the Navy Department as a separate executive department dates from this eventful period.5

Washington was, in anticipation of more vigorous steps being required, commissioned in his retirement at Mount Vernon as lieu

11 Stat. L., 561.
21 Stat. L., 565.

81 Stat. L., 572.
41 Stat. L., 578.

5 Apr. 30, 1798; 1 Stat. L., 553.

tenant general,1 and held his commission under that act to the date of his death the following year, though events never came to a point requiring him actively to assume the command legally conferred upon him.

We were thus brought to the very brink of war with France and, indeed, to a qualified state of hostility. At no time, however, did the French prize tribunals, anxious as they were to seize upon every excuse for the condemnation of American property, base their acts in doing so upon the ground of the existence of war between France and the United States, a ground which, had it existed, would have been a conclusive justification for their action, and which would, indeed, have made it unnecessary to assign any other. And in all the negotiations with France in which these claims were pressed she never set up as a defense the existence of a state of war.

From a complete break with France we were saved by the statesmanship of the negotiators of the treaty of September 30, 1800. These men, sent out by President John Adams, were headed by Oliver Ellsworth, Chief Justice of the United States. When they arrived in France, they found the Directory no longer in power, but the Government practically in the hands of Napoleon, under the title of First Consul.

After many months of negotiation, in which the French negotiators urged the continued force and obligation of our guaranty of the American possessions of France, a treaty was finally concluded. The difficulties in the negotiation of this treaty which from time to time threatened to break off the negotiations were the insistence, on the one hand, by France upon our making good our perpetual guaranty of France in her American possessions, and, on the other hand, the equal urgency of our own envoys in behalf of the claims of American merchantmen for indemnity from the Government of France for the seizure of their vessels and cargoes.

The validity of these mutual claims was fully admitted on both sides. Our envoys offered a large sum in cash to get rid of our national obligations to France, but insisted upon a claims commission to determine the claims of our citizens against France for the spoliations. France admitted the unjustifiableness of the seizures made by her men-of-war and privateers, and was perfectly ready to make full reparation if we had agreed to make good our treaty obligations for the guaranty of her American possessions and for the exclusive port privileges.

The result of the negotiations was in effect a surrender-in the end, an absolute and express surrender-of these mutual claims on both sides. Article 2, as it appeared in this treaty of 1800 when signed by the respective plenipotentiaries of the two nations, read as follows: 2

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 14th of November, 1788, nor upon the indemnities mutually due or claimed, the parties will negociate 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, &c.:

1 Act May 28, 1798, sec. 5; 1 Stat. L., 558.

2 Public Treaties of the United States, 1875, p. 225.

Had this article been agreed to by the two nations as thus signed by the plenipotentiaries, it would have still left open both the national claims of France against us and the individual claims of our ship owners and merchants against France. But at the end of this treaty as officially published1 the sequel appears as follows:

The Senate of the United States did, by their resolution on the 3d day of February, 1801, consent to and advise the ratification of the convention: Provided, The second article be expunged, and that the following article be added or inserted: "It is agreed that the present convention shall be in force for the term of eight years from the time of the exchange of the ratifications."

Bonaparte, First Consul, in the name of the French people, consented on the 31st July, 1801, "to accept, ratify, and confirm the above convention, with the addition importing 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 pretentions, which are the object of the said article."

These ratifications, having been exchanged at Paris on the 31st of July, 1801, were again submitted to the Senate of the United States, which, on the 19th of December, 1801, declared that it considered the convention fully ratified, and returned it to the President for promulgation.

Thus, the two countries renounced as against each other their respective claims. The claim of France against us was a national one. It consisted in the obligation assumed by us and the execution of which was insisted upon by France to guarantee her forever in the possession of her American colonies-an obligation assumed by us in return for her aid at the time of our utmost national peril. This guaranty we had already violated.

So, too, with the exclusive port privileges which we had guaranteed to France in time of war, and which we had by the Jay treaty of 1794 transferred to Great Britain, France had a national claim against us based upon this violation, although to have reestablished the provisions of the French treaty of 1778 in this respect would have involved us in difficulties with Great Britain. Whether these violations of our treaty obligations were, in the forum of international morals, justifiable, is a question to which various answers might be given, and which the Court of Claims did not find itself obliged to answer. As a question of international law, however, there can be no doubt. The treaty obligations were there. We had utterly disregarded them, and for that disregard France had as good a claim against us as we had against her for her many unjustifiable captures of our merchantmen. To have kept good our obligations with France would have involved us in a second war with Great Britain, for which we were not ready, and in which the people of the United States would have felt no national interest under the friendly relations which we had then resumed with the English. To take up again the cause of France and to reassume our guaranty of her American colonies and our promise of exclusive port privileges to her in time of war would have meant in 1800 to tie ourselves up at the dawn of the nineteenth century with the struggles and quarrels of Europe, from which it was our greatest blessing to have cut loose when we declared ourselves independent.

A high order of statesmanship was shown by President John Adams, his cabinet and his negotiators of this treaty when they thereby obtained the release of our government from this onerous and inconvenient obligation.

1 Public Treaties of the United States, 1875, p. 232.