"2. Because the vessels were not provided with the rôles d'équipage prescribed by the laws of France, and which, it has been pretended, were also required by treaty. "3. Because sea letters or other papers were wanting, or said to be wanting, when the property shall have been, or shall be, admitted or proved to be American "4. When the owners, masters, or supercargoes shall have been refused a hearing or placed in situations rendering their presence at the trial impracticable. 45. When the vessels or other property captured shall have been sold, or otherwise disposed of, without a regular trial and condemnation." If a preliminary acknowledgment of these claims should be secured, the envoys were instructed that it would be necessary, for the purpose of examining and adjusting "all the claims" of citizens of the United States, to provide for the appointment of a board of commissioners, who, besides determining claims for captures and condemnations, should also take cognizance of the following claims: I. Of citizens of the United States 1. For merchandise, or other property, seized by the French in their own ports or elsewhere, and not comprehended under the head of captures; and for their vessels arbitrarily and unreasonably detained in French ports." 2. For "sums due * * * ment or its agents." by contracts with the French Govern II. Of citizens of France, for injuries occasioned by "infringements of the treaty of amity and commerce by the United States, or their citizens." III. National claims 1. Of "the United States, as distinguished from those of their citizens, for injuries received from the French republic, or its citizens." 2. Of France, for injuries occasioned by infringements of the treaty of amity and commerce. "If, however," said the instructions, "the French Government should desire to waive its national claims, you may do the like on the part of the United States. Doubtless the claims of the latter would exceed those of the former; but, to avoid multiplying subjects of dispute, and because national claims may probably be less definite that those of individuals, and consequently more difficult to adjust, national claims may, on both sides, be relinquished." Minute directions were given as to matters of commerce and navigation, and in conclusion the envoys were instructed that the following points were to be considered as ultimated:" 66 1. That a board of commissioners be established to hear and determine the claims of citizens of the United States arising from the causes previously specified, and that France be bound to pay the sums awarded. 7 2. That the treaties of 1778 and the consular convention of 1788 be not revived in whole or in part, but that all the engagements to which the United States were to become parties be specified in a new treaty. 3. That no guaranty of any part of the French dominions be stipulated, nor any engagement made in the nature of an alliance. 4. That no aid or loan be promised in any form whatever. 5. That no engagement be made inconsistent with the obligations of any prior treaty, and that, if cogent reasons should appear for renewing in substance the seventeenth and twenty-second articles of the treaty of amity and commerce of 1778, it must be done with the explicit declaration that they should not be construed so as to derogate from the twenty-fourth and twenty-fifth articles of the Jay Treaty. 6. That no powers be granted to consuls or others incompatible with the complete sovereignty of the United States in matters of policy, commerce, and government. 7. That the duration of the proposed treaty be limited to twelve years from the exchange of ratifications. Bonaparte as First Messrs. Ellsworth and Davie sailed from Newport, Rhode Island, on the 3d of November 1799, agreeing to touch at Lisbon before making any port in France. When, on the 27th of November, they arrived at the Portuguese capital, news had just been received there of the revolution at Paris of the 18th Brumarie (10th November), by which the Directory was overthrown. They reached Paris on the 2d of March 1800, the day after the arrival of Mr. Murray from The Hague. They found Bonaparte reigning as first consul. He promptly granted the envoys an audience, and appointed MM. Joseph Bonaparte, Fleurieu, and Roederer as plenipotentiaries to negotiate with them.1 Negotiations. The commencement of the negotiations was delayed by the indisposition of Joseph Bonaparte. On the 2d of April, however, the plenipotentiaries met and exchanged their powers; but as those of the French plenipotentiaries were not considered by their American colleagues sufficiently full and explicit, the French Government furnished its representatives with new ones. This preliminary adjusted, the American plenipotentiaries proposed first "to ascertain and discharge the equitable claims of the citizens of either nation upon the other, whether founded on contract, treaty, or law of nations," and then to take up questions of commercial intercourse. The French plenipotentiaries expressed the opinion that "the first object should be to determine the rules, and the mode of procedure, for the valuation of those injuries for which the two nations, respectively, may have demands against each other, whether these demands are founded on national injuries or individual claims;" and that the "second object" was "to insure the execution of the treaties of friendship and commerce, now existing between the two nations, and the accomplishment of those views of reciprocal advantage which first dictated them." Difference as to the The American plenipotentiaries, while suggesting the expediency of a mutual relinquishment of national claims, intimated that the discussion of such claims might conveniently follow the arrangement of the individual claims; and, in accordance with this view, they presented on the 17th of April a draft of articles for the adjustment of the claims of individuals. In this draft it was provided that, in determining questions of capture or condemnation, the commissioners should "decide the claims in question according Am. State Papers, For. Rel. II. 307–311. Id. 312-314. 5627-VOL. 5. -3 to the original merits of the several cases, and to justice, equity, and the law of nations; and in all cases of complaint existing prior to the 7th of July 1798, according to the treaties and consular convention then existing between France and the United States." The French plenipotentiaries on the 6th of May replied that the proposal of their American colleagues had "a tendency to remove the obstacles" which lay in the way of the accomplishment of what both nations desired, and that they would have seized the present moment to develop their views respecting the "various interpretations" which had been "given to the treaties," had they "not been struck with an interpretation of which they can conceive neither the cause nor the object, and which therefore seems to require explanation." "The ministers plenipotentiary of France are not aware," they declared, "of any reason which can authorize a distinction between the time prior to the 7th of July 1798 and the time subsequent to that date, in order to apply the stipulations of the treaties to the damages which have arisen during the first period, and only the principles of the laws of nations to those which have occurred during the second." The American plenipotentiaries answered that the distinction was based on the fact that it was not till after the treaty of amity and commerce of February 1778 had been violated to a great extent on the part of the French republic, nor till after explanations and an amicable adjustment sought by the United States had been refused, that they did on the 7th of July 1798 by a solemn public act, declare that they were free and exonerated from the treaties and consular convention which had been entered into between them and France."3 2 The issue thus made as to the treaties was the subject French Propositions. of numerous fruitless conferences. At length on the 26th of August the French plenipotentiaries formally defined the position of their government thus: 1. That it could not admit that the treaties had been annulled, either by the single act of abrogation on the part of the United States, or by "the misunderstanding" which had for some time existed between the two countries, but which had "not constituted a state of war, at least on the part of France." On this basis France was ready "to stipulate a full and entire recognition of the treaties, and a reciprocal promise of indemnities for the damages resulting, on the part of either, from their infraction." But 2. If the American plenipotentiaries were unable to recognize the validity of the treaties, France would acquiesce in their nullity, with the understanding that the act of the United States, by which their abrogation was declared, was "an unequivocal provocation to war;" that the "hostile acts" by which the provocation was followed "were nothing less than war;" and that the new treaty between the two countries should be "preceded by a treaty of peace." "If," said the French plenipotentiaries in conclusion, "the correctness of these observations is admitted, it would seem that the two governments ought to be occupied no longer with their 1 Am. State Papers, For. Rel. II. 317. 2 Id. 319. 3 Id. 320, respective losses; the rights of war acknowledge no obligation to repair its ravages."1 ties Postponed. Various propositions were made on either side with Treaties and Indemni- a view to an accommodation; but, as the French plenipotentiaries refused to separate the question of indemnities for captures and condemnations from that of the treaties, and the American plenipotentiaries had no authority either to recognize the treaties or to abandon the claims, an agreement was impossible. It thus became necessary to postpone the subject, or else to abandon the negotiations, which virtually meant war. The American plenipotentiaries assumed the responsibility of choosing the former alternative, and on the 30th of September 1800 signed a convention. By the second article of this convention it was deConvention of Septem- clared that the ministers plenipotentiary of the conber 30, 1800; Art. II. tracting parties, being unable to agree respecting the treaty of alliance and of amity and commerce of 1778, and the consular convention of 1788, or "upon the indemnities mutually due or claimed, the parties will negotiate 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." Deb's and Captured Besides this article in relation to the treaties and indemnities, the following provisions of the convention may be noticed: 1. That all public ships taken by either party from the other should be restored (Article III.). 2. That property captured, but not definitively condemned, or which might be captured before the exchange of ratifications, should be mutually restored on certain proofs of ownership (Article IV.). 3. That "debts contracted by one of the two nations with individuals of the other, or by the individuals of the one with the individuals of the other, shall be paid, or the payment may be prosecuted, in the same manner as if there had been no misunderstanding between the two states," but that this clause should "not extend to indemnities claimed on account of captures or confiscations" (Article V.). The convention also provided that free ships should Other Stipulations. make free goods, but that the enemy's flag should render the goods of a neutral liable to confiscation, and that prizes should be adjudicated only by the established prize courts of the country. Article XVIII. of the treaty of amity and commerce of 1778 was renewed, with the proviso that its stipulations should not extend beyond the privileges of the most favored nation. No limit was set to the operation of the convention. With this exception, and that of compensation for captures and condemnations, it substantially conformed to Pickering's ultimata. The Senate approved the convention with the proviso Expunction of Article II. that Article II. should be "expunged," and the duration of the convention limited to eight years from the exchange of ratifications. The convention as thus amended was returned to 1 Am. State Papers, For. Rel. II. 332. Paris with a view to the exchange of ratifications. The French ministers refused to agree to an unconditional suppression of the second article, but insisted that, if it was stricken out, "the reciprocal pretensions" to which it related "should not be brought forward at any future period." "2 Murray being without authority to enter into an engagement to this effect, Bonaparte, as first consul, ratifying the convention in the name of the French people, inserted in his act of ratification the proviso, that by the expunetion of the second article "the two states renounce the respective pretensions, which are the object of the said article." The ratifications were exchanged at Paris on the 31st of July 1801. When the convention was sent back to the United States, the President, in view of the form of the French ratification, deemed it "most safe, as a precedent, to ask anew the sanction of the Senate to the instrument with that ingredient," though he did not regard "the declaratory clause as more than a legitimate inference from the rejection by the Senate of the second article." The Senate, on the 19th of December, declared that it considered the convention "as fully ratified," and returned it to the President for promulgation. It was proclaimed on the 21st of December.5 Execution of the Convention. In returning the convention as amended by the Senate to the envoys in Paris, the Acting Secretary of State in March 1801 said: "We are carrying the convention into execution in all its parts. All hostilities on the sea have been forbidden; our vessels are returning into port; the prison rs in our possession are in course of delivery to M. Letombe, former consul of France; he is notified that all those officers may resume their functions; commercial intercourse is restored; a number of our vessels actually cleared out and departed for France, and orders given for the restitution of vessels under the third article of the convention."6 On the 3d of January, however, Talleyrand had instructed the Council of Prizes "to adjourn to an indefinite period all decisions upon every kind of property seized under the flag of the United States," though he promised, as soon as the convention should be ratified on both sides, "to urge forward a decree of the consuls, which shall replevy for the Americans all the prizes restitution of which has been engaged for."5 Nonexecution by The restitutions claimed by the United States, as defined by Madison, embraced (1) cases of capture in which there had been no judicial proceedings; (2) cases carried before the French tribunals, but not definitively decided on the 30th of September 1800, and (3) captures made subsequently to that day." On the 10th of December 1801, Chancellor Robert R. Livingston, who had become minister plenipotentiary to France, reported that "the Council of Prizes were still condemning in the very face of the treaty," and that the 1 Am. State Papers, For. Rel. VI. 148. 3 Am. State Papers, For. Rel. VI. 155. 4 Am. State Papers, For. Rel. II. 345. Am. State Papers, For. Rel. VI. 149. 6 Id. 151. Id. 154. |