A Long-Unpaid Debt

AT the last session of the United States Congress, an attempt was made to include in one of the appropriation bills a clause for the payment of a portion of what are known as the “ French Spoliation claims.” It was rejected by the House of Representatives, though favored in the Senate. The claimants are pressing their ease again in the present session. They have behind them a public sentiment which demands the long-deferred payment of these debts,— debts which the nation has morally, if not legally, owed for ninety years.

Every child at school who studies American history is taught that the alliance with France was the turning-point of our War for Independence. What gave Burgoyne’s defeat at Saratoga its immense importance was the fact that it fixed the French king and his ministers in their determination to assist the revolting colonies, and by that means obtain revenge on England for the humiliating Peace of 1763. Two treaties of alliance and commerce between France and the United States were signed in 1778 ; and the astute statesmen who then directed the councils of Louis XVI. believed that they had virtually secured for France a dependent empire in America as valuable at least as that lost at the Peace of Paris. By these treaties, not only did the United States undertake to guarantee the integrity of the French possessions in America, but, as one element of the strict and perpetual alliance, admitted the French vessels to peculiar privileges in the ports of the United States in the event of a war with a third power.

So long as the reign of Louis XVI. lasted, and even into the early days of the French Revolution, these treaties had their sway, and the relations of the United States with France continued to be sympathetic and friendly, while those with England were proportionately hostile and uncomfortable. But with the rule of the Convention and the Jacobins an entire change took place. The impudent construction put by Genet on the treaty of alliance found no favor with Washington or his cabinet; and in the year 1793, when all law, municipal or international, was set at naught by the Convention, a variety of decrees were passed, by virtue of which American shipping was subjected to a series of outrages contrary not only to the treaty of alliance and commerce, but to any principles of maritime seizure recognized among civilized nations. Vessels were captured by French war-craft, often with circumstances of extreme insolence and cruelty; carried into port, on the most frivolous excuses, at a distance from any proper prize court; and the vessel and cargo disposed of without any proper adjudication, supposing they could have been fit subjects for a prize court at all.

There can be little doubt, if we read history as a whole, that these spoliations were part of that universal system of lawless plunder which characterized the whole career of the French Convention. In the terrific war that the Jacobins were waging, partly for national independence, partly for their fantastic theories of human rights, and partly to gratify their own malignity, they found themselves in a state of bankruptcy, in which they were bound to lay hands on anything and everything capable of filling their worse than empty treasury. Drawn as France, was into a naval war with England, and straining every nerve to plunder British commerce, her seacaptains and admiralty judges, if such a name can be applied to those who pronounced judgment on American captures, were not likely to make accurate distinctions between English and American vessels. Many of them did not know the difference, and many of those who did were too rapacious or too corrupt, too eager to make a valuable capture or to be paid for releasing it, to exercise any intelligent or honorable discretion.

Moreover, the French Convention was both surprised and disgusted with the attitude which the United States was rapidly assuming toward England. That the old French alliance should have lost its force, that the recent English insolence should be forgotten, that the young republic could possibly be more inclined to friendship with her old enemy than her old friend, and should hesitate to join heart and soul with Saint-Just and Robespierre in a holy war for the rights of man, was probably an incredible puzzle to most of the Convention who thought on the subject at all. This is shown by the singular way in which it vacillated backward and forward as to the decrees which authorized the spoliations ; now declaring that the ships of the United States should be subject to them, and now exactly the reverse.

From the beginning the spoliations which our merchants were undergoing attracted the attention of the United States government. It was all important that our commerce should be saved. The only revenue to speak of which we had wherewith to carry on the nation came from the custom house; and if our trade was to be at the mercy of every French privateer our treasury would be depleted. Mr. Jefferson, as Secretary of State, issued in 1793 a special address to the merchants of the United States, assuring them that the administration of Washington would exert itself to obtain reparation for past and security against future spoliations. Morris and Monroe tried in vain to get from the wayward, selfish, impracticable agents of France any satisfaction for what must be regarded as violations of all common as well as all treaty rights by any one who pretended to be a civilized negotiator at all. The French constantly fell back on the contention that the United States had failed to carry out the view which France held of the treaty of alliance, and particularly after the negotiation of Jay’s treaty, which admitted the vessels of England and America to almost identical privileges with those secured to French and Americans in the treaty of 1778. The fact of the spoliations was too obvious, and their variance with all international law too undoubted, to be seriously denied. At one time a fanciful ground of seizure had been trumped up that most American vessels were unprovided with a species of register called in French a rôle d’équipage, even when they were equipped with all lists and manifests demanded by United States law.

The misunderstandings went on, — the spoliations went on; the two countries seemed drifting faster and faster into war. Yet no war was declared. Prima facie the treaties of 1778 still remained in force, even though it might be held, on one or the other side, that they had been violated by the conduct of the French, or abrogated by Jay’s treaty. The commerce of the United States was getting seriously crippled. On every account it became necessary to bring matters to some settlement. The celebrated commission of Pinckney, Marshall, and Gerry was appointed, and in their instructions it was most plainly mentioned that reparation was to be demanded for the spoliations by the organization of a proper body to review any complaints of the kind made by either nation.

It is well known how these commissioners were treated by the government of the Directory. Not only were they refused public recognition, but in the secret and tortuous communications which were opened with them it was put to them unmistakably that America could obtain nothing from France except by bribery, — direct purchase both of the directors and of other persons.1 Marshall and Pinckney soon returned in disgust ; Gerry held out a little longer. The outrages continued. Congress in 1798 declared the treaty of 1778 abrogated by the action of the French ; an army was organized, Washington was appointed lieutenant-general, letters of marque and of reprisal — not the same thing, though often spoken of as such — were issued to American merchantmen, and armed encounters, some of a very severe character, took place on the ocean between the ships of the United States navy and the predatory craft of the French. Still, war was not actually declared by Congress, the only power capable. by the Constitution, of such action. The specific and peculiar obligations of the treaties of 1778 might be at an end, so far as our own citizens went ; but France had not recognized their termination, and not even that would have released her from the general obligations of international law. At last the advent of Buonaparte to power led to hopes of a peaceful and equitable settlement of difficulties, as it was well known that he was anxious to restore the international credit of France, so sadly shaken by the events of the preceding eight years. A new commission was sent, consisting of Oliver Ellsworth, William Richardson Davie, and William Vans Murray, to conclude some kind of a treaty that might arrest the course of a quarrel which had all the evil incidents of war with none of its open and definite character, and which it was clearly for the interests of both countries to stop.

The conferences were conducted intelligently enough, except when Joseph Buonaparte introduced some characteristically fatuous comment. But from the outset this alternative was pressed by the French commissioners : reparation for past injuries and the reinstatement of the old treaty, or a new treaty and a renunciation of all indemnity. Incidental propositions were made that sums of money should be paid on one or the other side, as a release from all obligations or claims, and limits of time were set within which these might be paid; but every such proposal fell through. With great difficulty a treaty was at last negotiated, making provision for future occurrences, including any possible spoliations on commerce after the signing and ratification, but containing as its second article a recognition that, certain points in dispute — namely, the treaty obligations and claims for spoliation — being yet undecided, their consideration should be transferred to a future date. The treaty in this form was signed by both parties, and understood to have the assent of Mr. Jefferson’s administration, which had succeeded to that of Mr. Adams ; but the Senate of the United States struck out the second article. The question of obtaining reparation from France for injuries to commerce before 1800 was thus silenced ; and France seemed to sink forever all claims on the United States to carry out the tremendous obligations of the year 1778.

How did this action affect the position of those whose property had been destroyed by French vessels, and whose claims for indemnity the government of the United States has been constantly pressing ? Washington, Jefferson, Morris, Monroe, Adams, Pickering, Pinckney, Marshall, Gerry, Ellsworth, Davie, Murray, had all pledged their energy, their intelligence, their honor, to secure to their countrymen reparation for millions of property captured, sold, lost, destroyed, at a time when the very existence of the United States and the prosperity of the citizens depended on commerce. They had been met by the corrupt and crafty managers of French diplomacy, not with denial, for that was impossible, but by constant appeals to the tremendous obligations which the United States had entered into at a time when alliance with France was the salvation, one might almost say the creation, of national life. The country was again in a crisis, second only to that of the Revolution. A war with France had been, as far as might be, avoided even when Buonaparte was only the victor of Lodi, and Washington was alive ; now he was the Buonaparte of Marengo, and Washington was gone.

A treaty must be had, a final, definitive treaty, closing the hopeless discussion of old obligations, contracted when the nation would have contracted anything. For the sake of burying forever the liens imposed by the old century, the Senate buried its claims in the same tomb, as far as indemnity from France was concerned.

It has been argued that France never had any intention of paying these claims, — that she never really acknowledged the obligations, and that no amount of future pressure would ever have got payment out of her; and the correspondence of some of Buonaparte’s officials has been appealed to as proof. It is indeed difficult to assign any limits to what France would not have paid in the ten years preceding the Peace of Amiens. But throughout the negotiations of these years, abortive or successful, the pretext, real or fictitious, constantly held out by France was not that the claims were null, but that they were balanced or overbalanced by those under the treaty of 1778. The Senate, by striking out the article making the point one for further discussion, consented to buy the claims at the price of release from the treaty of 1778. Did this declare the claims worthless, or did it release them, and shut the mouths of the claimants ? No ; it transferred the responsibility of indemnity from France to the United States itself. The plundered merchants had a money claim on the French nation. The French nation pressed a claim on the United States government. The latter bought oblivion of its treaties ; but it bought it not with its own money ; it bought it with the property of the merchants. It owed them — it owes their representatives — compensation for taking their property, in accordance with the fundamental principles of public law, and, what concerns us still more deeply, with the fifth article of amendment to the Constitution of the United States, which declares that “ private property shall not be taken for public use without just compensation.”

In fact, the idea that such claims had no real money value because France did not intend to pay them is refuted by what actually happened with reference to the claims on France for spoliations of an entirely similar character, occurring later than 1800, and to the claims on Spain for those of the earlier period ; for both of which compensation was finally obtained, the money which we paid for the Louisiana and Florida purchases working in very opportunely for that purpose.

The claims, being now against our own country instead of against France, were from an early date pressed upon Congress, and reports in their favor were made during the presidency of Mr. Jefferson, who had originally, when in Washington’s cabinet, assured the merchants of the United States that the government would make special exertions for the protection of their commerce. Notable among these reports is one in 1807 by Francis Marion, the son of the Revolutionary hero, who had himself seen the beginning of the spoliations in 1793-95.

And at this point a possible difficulty should be cleared up as to the nature of the claim of individuals on Congress for the restoration of property taken for public purposes. No one at all conversant with law imagines that by general public law the government of a country can be sued as an individual may in the courts, and that judgment can be obtained and executed against it. Compensation for such public seizure must be obtained, if at all, through a petition asking that right be done by the government to its subjects, or, in the phrase required by the change from monarchical to republican forms, to citizens. The law on this point is well shown in the Bankers’ Case, in the reign of William III. The Cabal Ministry of Charles II. had, by a most infamous breach of public faith, appropriated £1,200,000 belonging to the bankers of London. As long as the Stuarts were on the throne it was impossible to obtain restitution. Under the Revolution settlement, the Barons of the Exchequer were petitioned to direct payment from the treasury; but Lord Somers held —and his judgment, though reversed by an intensely partisan House of Lords, has never had its authority disputed in calmer times — that the true remedy was by a petition of right to the king. If private property has been taken by authority of a king, a Parliament, a Convention, or a Congress, such bodies must be approached as by petitioners, and must be compelled to do right by the obligations of justice and equity and fundamental law, not because any process of execution can issue against them. But surely this makes the obligation only the stronger. It is preëminently a case of noblesse oblige. If ever right should be done because it is right, it is when those who by free choice of the people represent its whole power and sovereignty are approached by a number of the citizens pleading for restitution of that which the majesty of the nation cannot be made to restore because it is too great; but if too great to be compelled, for that very reason it should be not merely too great, but too good, to decline.

The days of Jefferson and Madison were unfavorable for granting such claims. The treasury was anything but full, and, as far as those in power cared for the sufferings of merchants at all, the operations of the Berlin and Milan Decrees and of the British Orders in Council were much more in their minds than those of the Convention of 1793. Various attempts were made to obtain justice, but none were properly organized ; nor did they meet with any measure of success till prosperity was really restored; till the old debts were rapidly getting paid off; till the treasury was filling, and John Quincy Adams was directing the national councils as Secretary of State. Unquestionably, the activity of the claimants was then stimulated by the fact already mentioned, that out of the Florida purchase money the strictly analogous Spanish claims had been paid ; and it is important that this point should be dwelt upon, because it is in connection with the claims on Spain that we find an opinion which cannot easily be overestimated as to the validity of those against France. In 1804, when Spain endeavored to resist the payment of claims against her, on the ground that there were French acts for which the United States had renounced indemnity, Mr. Madison wrote to Mr. Pinckney thus: “ The claims, again, 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.” This effectually disposes of an extraordinary argument against the payment of these claims, that the obligations of the United States to the claimants were not recognized by the generation contemporary with the spoliations, and that the claims were pressed only after the testimony of those who knew the circumstances could not be obtained. Mr. Madison’s life was in many ways a blessing to his country, and especially in that it was prolonged to refute by his personal testimony assertions made about the first twenty-five years of our national existence by those who neither saw them nor were a great part of them, like him.

It is, however, in a measure true that contemporaries were less disposed to pay the debts of the nation to its earlier sufferers than were the men of its second half century. No claims were better known to the men of the first fifty years, or more deserved appreciation, than those of the Revolutionary officers ; and a half century was suffered to elapse after the Declaration of Independence before any effective means were taken for their relief.

Toward the end of Monroe’s administration the claims of the victims of spoliation were presented anew to the Senate of the United States, that body which, by its striking out of the second article of Ellsworth’s treaty, had transferred the burden of their payment to the government. They called on the President to furnish copies of all the diplomatic correspondence relating to the subject during whatever government happened to bear sway in France. These were duly furnished by President Adams, and threw a flood of light upon the whole subject.

An attempt has been made to show that all these documents were well known to the earlier generation, and especially to those who prepared the Senate Report of 1802. This is simply nugatory. Whatever papers may have been in the hands of the Senate in Jefferson’s administration, the correspondence had never been made public, and when afterwards the Senate, called upon to redress a great national wrong, asked for this correspondence, it asked for a thing of which the people at large knew nothing. The fact that, whereas there had been more than one report adverse to the claimants between 1815 and 1825, the tenor of all such reports was immediately changed shows how the publication of the diplomatic correspondence had affected the whole issue.

This series of reports, extending over a period of thirty years, and rendered in both houses of Congress, is most remarkable for its almost unbroken approval of the claims, and the distinguished names that have been appended to it. Clay, Everett, Livingston, Webster, Cushing, Clayton, and Sumner are among them; and the number of the reports should be counted by tens, and not by units. It is true that the claims have not been unopposed, and counter arguments have been presented against them by men prominent in the national councils, such as Silas Wright and John A. Dix. But it may be questioned whether, among all the active opponents of payment, there has been any one, except Forsyth, entitled to the name of an international lawyer, and capable of considering the question with a thorough understanding of that noble science which was so entirely familiar to those whose names have been mentioned above.

Twice has a bill passed both houses of Congress appropriating money from the treasury for the payment of these claims. One of these bills was vetoed by President Polk, chiefly on the ground that the expenses of the Mexican War had left the treasury in no fit state for the payment. A later hill was vetoed by President Pierce, but the grounds of this veto have not made much impression upon subsequent discussions. Both these bills were passed over the vetoes by the houses of Congress, but not by the requisite majority of two thirds.

But though President Pierce’s administration failed to do justice to the claimants, it passed a memorable act which ought to be the means of doing them justice. The establishment of the Court of Claims, whereby the United States has consented to enter the court as defendant against its citizens as plaintiffs, must be considered as marking a real step in the science of government. The French Spoliation claims, belonging to a period long anterior to the establishment of the court, could of course come under its review only by a special act of Congress. Such an act was finally obtained in 1885, thirty years after President Pierce’s veto of the bill for payment, sixty since the production of the diplomatic correspondence by President Adams, and more than ninety since the first depredations by the cruisers of the Jacobins. The reference to the court was carefully fenced by many provisos in the act. It was to pass on the validity of a large number of the claims, while others, about whose date and character there were modifying and invalidating circumstances, were withheld from its jurisdiction ; and while its judgment might fairly be considered as decisive of the legal or equitable character of the claims, it was not to bind Congress to the appropriation of money for their payment.

Fenced by all these restrictions, the Court of Claims took up a large number of the most important cases presented to it. Its decision was delivered by Judge John Davis in 1886, and a supplementary one, covering various special points, was rendered in 1887. These rescripts go into a thorough and most masterly review of the whole subject, throwing out a variety of claims where the evidence was vague and insufficient, or where other peculiarities precluded a favorable judgment, but pronouncing on a great number of the more important cases, whether in the amount of damage claimed or the circumstances of the captures, that they were fairly entitled to the compensation so long sought for. It may be said that the history and rights of the subject are exhausted in the decision.2

One would think that after the natural tribunal, the chosen tribunal, had thus given judgment on the claims, there was nothing to do but for Congress to vote the money at once. But no ! The claims have encountered opposition in the fiftieth Congress, and thus far in the fifty-first, characterized by a bitterness, a captiousness, a reviving of old and long-exploded doubts, an advancing of new and baseless charges, for which it is almost impossible to account without supposing some personal animus to be at work, which certainly ought never to enter into matters whose rights and wrongs belong to a period three generations removed from us. It is hard to see what element there can be in the case outside the merits of the claims themselves.

At one stage, indeed, in the history of the claims, — what may be called its middle period, — the question was made almost one of party, the Whigs advocating, and the Democrats opposing, the payment; but since the disappearance of the Whig party there can be traced no such division line. In the last and the present Congress, leading Republicans and leading Democrats have been found arrayed as prominent champions on either side of the question.

It would be more accurate, perhaps, to say that the strong feeling against the commercial interests of the Atlantic coast, and especially of New England, existing in some of the central States, which found its most pungent expression in Benton’s speech on Foot’s Resolution, has been at the bottom of much of the opposition to the payment of claims chiefly held in the Atlantic cities. It is hard to think that such an unworthy, such an un-American feeling should sway the minds of any considerable number of members of the national Congress. Whatever they may deem the shortcomings of New England and her capitalists in this century, they should remember how the proportions of the different sections of the Union have changed since the merchants of the Atlantic seaboard were plundered by the French cruisers. If the seaboard States had been struck out of the Union in 1797, the remnant would have been weak indeed. These outrages on our commerce caused a loss of one seventh in that revenue whereby alone the national credit was sustained, and the then infant commonwealths of Kentucky, Tennessee, and Ohio had a chance to develop themselves under the shield of their older sisters.

Some specious, but no effective arguments have been brought against these claims. Attempts have been made to show that they were worthless, because France never intended to pay them. The Senate of the United States, Washington, Jefferson, Morris, Pinckney, Ellsworth, Madison, did not consider them worthless when they balanced them against the enormous treaty obligations of 1778. There has also been an attempt to show that the two countries were in a state of war, and that the claims are ruled out on this ground. By no possible construction could war be held to exist before Congress repealed the treaties in 1798, and it is entirely misleading, to say no worse, to declare that the majority of the captures belong to the next two years. But no war ever was declared; the muchquoted opinion of Attorney - General Charles Lee that a general war existed was never acted on. The courts admitted the existence of a modified, limited state of war, in which outrages on one side had led to reprisals on the other ; but the instructions and negotiations of Ellsworth and his brother commissioners with Buonaparte, Roederer, and Fleurieu are entirely incompatible with any theory of general, national war.

Most exaggerated statements, too, have been made of the amount of money which would be required to satisfy these claims. The opponents of them have piled up the estimates to thirty, forty, or even more, millions. Such statements cannot be called other than intentional perversions. The evidence of many of the original spoliations has been lost or destroyed ; the fine sieve of the Court of Claims and the act which authorized a reference to it has still further excluded many which once swelled the mass. When the bill was before Congress, last year, it was in evidence that that court had adjudicated in favor of $1,600,000 only of $4,800,000 which had actually been judicially tried. There is not the least reason to fear that the payment would be any appreciable burden to the country.

It is said the claims are stale. They are stale if the Revolutionary War and the surrender of Saratoga are stale ; if the alliance with France and the friendship of Vergennes and Lafayette are stale ; if the rapacity and corruption of the Convention, repeated on the deck of hundreds of French privateers, are stale ; if the dignity, the spirit, the patriotism, of Pinckney and Ellsworth, replying to the tricks and blusters of Talleyrand and Rewbell, are stale elements of our early national history. The evidence in the claims is as fair and fresh to-day as it was in 1800. The old documents, taken from the sleep of three generations, and laid before the Court of Claims, as indicating the rightful property of the great-great-grandchildren of the original claimants, are marked with a clearness and a precision, amounting to elegance, which no merchant of New York or Chicago can exceed in his last year’s ledger. The charges of suppression or destruction of contrary evidence, not remotely hinted at before a committee of the House of Representatives, are baseless and cruel.

These claimants have waited long. Again and again the cup of justice has been held to their lips and snatched away. Statesman after statesman has studied their case and pronounced in their favor. One house after another, twice both houses in united action, have voted to discharge the debt. Congress having referred them, as was every way fitting, to the Court of Claims, they have expended large sums in pleading at its bar, in full reliance on the national legislators to complete their work. That court has decreed for them. Their case has been attacked upon ever-shifting grounds. Payment has been evaded by every dilatory device known to our Congress, so well equipped for party legislation, so slow to execute right when party is not concerned. They are addressing Congress once more for justice. Shall they not have it ? Shall not the property taken ninety years ago by the nation, in the time of its poverty and weakness, receive its constitutional compensation, and, to use the words of one of the most eloquent champions of the cause, “ the last item in the debt contracted to secure our national independence be paid ” ?

William Everett.

  1. “ Mais, messieurs, vous ne dites rien de l’argent,”was the oft-repeated phrase.
  2. Opinions of the Court of Claims delivered May 17 and 24, 1886, and November 7, 1887.