your merchants have suffered any injury by the conduct of our privateers * * * they may with confidence address themselves to the French Government." (Doc. 102, p. 264.) Nearly four months later the French commissioner of foreign relations informed our minister that there should not be a doubt of the disposition of the Convention and Government to "make good the losses which circumstances inseparable from a great revolution may have caused some American navigators to experience." (July 5, 1794; ibid., p. 77.) Then came Genet's dismissal; Jay was sent to England, and Monroe, succeeding Morris, seemed to have progressed so successfully that Washington announced to Congress (February 20, 1795) "that these claims are in a train of being discussed with candor, and amicably adjusted." (Waite's American State Papers, vol. 3, p. 402.)

The Jay treaty entirely changed the situation; France violently remonstrated, treated Monroe with insult, refused to receive Pinckney, threw off the last restraints upon its cruisers and privateers, and its colonial agents joined with so much vigor in the illegal attack upon a peaceful neutral commerce, that "American vessels no longer entered the French ports unless carried in by force." (Doc. 102, pp. 434, 435.)

Just complaint was not however, confined to one side, for we had failed in performance of obligations imposed upon us by the treaties of 1778. We had undertaken a guarantee of French possessions in America and pledged ourselves that "in case of a rupture between France and England the reciprocal guarantee * * * shall have its full force and effect the moment such war shall break out." (Art. 12, treaty of alliance.) This guarantee was to endure "forever." It was contended by us that the casus fœderis could never occur except in a defensive war. As Secretary Pickering said:

The nature of this obligation is understood to be that when a war really and truly defensive exists, the engaging nation is bound to furnish an effectual and adequate defense, in co-operation with the power attacked." (Doc. 102, p. 457, Pickering to Pinckney et al., July 15, 1797.)

Whether the treaty so limited the obligation, or whether France in her struggle with the allied powers was waging a defensive war, is not now important. France certainly believed herself entitled to demand our aid, and understood the casus fœderis to have occurred.

At the opening of the war France possessed the fertile islands of St. Domingo, Martinique, Guadeloupe, St. Lucia, St. Vincent, Tobago, Deseada, Mariegalante, St. Pierre, Miquelon, and Granada, with a colony on the main-land at Cayenne, and "in little more than a month the French were entirely dispossessed of their West India possessions, with hardly any loss to the victorious nation." (Alison's History, vol. 3, p. 396.)

The French colonists urged us to intervene, but the French Government thought it wiser for us not then to embark in the war, as it might diminish their supplies from America; they would, however, they said, leave us to act according to our wishes, looking to us meantime for financial aid. (1 Foreign Relations, p. 688.) This was not a renunciation of the guarantee, nor was it so regarded here.

A study of the correspondence shows that these provisions of the two treaties, especially the guarantee, constantly, hampered our ministers, and Jefferson said he had no doubt "we should interpose at the proper time" (Jefferson's Works, vol. 4, p. 102), while the French Government dwelt

upon

the "inexecution of the treaties" (1 Foreign Relations, p. 658), said "they had much cause of complaint against us" (ibid., p. 731), and finally refused to receive Pinckney "until after a reparation of grievances," while their minister here demanded "in the name of American honor, in the name of the faith of the treaties, the execution of that contract which assured to the United States their existence and which France regarded as the pledge of the most sacred union between two people the freest upon earth." (1 Foreign Affairs, pp. 579 et seq.)

The claims of France, national in their nature, were thus set up again against the claims of the United States, individual in their inception, but made national by their presentation through the diplomatic department of the Government.

It is not for us to say whether the claims of France had any validity in international law, because for the purpose of this case it need only be observed that they were urged in diplomacy with every apparent belief that the French position was tenable. Whether valid or not they were an efficient arm of defense against our contentions, and were so used with ability, skill, and success. In fact there is a recognition of apparent justness in these demands found in the instructions to the Pinckney mission, who were directed while urging our claims, to propose a substitute for the mutual guarantee "or some modification of it," as" instead of troops or ships of war ""to stipulate for a moderate sum of money or quantity of provisions" to be delivered in any future defensive war" not exceeding $200,000 a year during any such war" (2 Foreign Relations, p. 155), and Talleyrand on the other side told Mr. Gerry (June 15) that the Republic desired to be restored to the rights which the treaties conferred upon it, and through these means to assure the rights of the United States. "You claim indemnities," he said, we "equally demand them, and this disposition being as sincere on the part of the United States as it is on its, [the Republic] will speedily remove all the difficulties." (Doc. 102, p 529.) Such was the situation when the Ellsworth Mission arrived in France. The instructions to this legation directed them as an "indispensable condition" to obtain full compensation for all losses and damages sustained by citizens of the United States from irregular or illegal captures or condemnations.

The French representatives did not dispute the validity of the claims, but stood upon the treaties of 1778. To their opening propositions the American envoys received a courteous response, which, however, put a new phase upon the negotiation, and placed them in a most embarrassing position. Bonaparte and his colleagues said in substance (6 May, 1800, Doc. 102, p. 590): The discharge of damages between the two nations resulting from the "transient misunderstanding" can be "considered only as a consequence of the interpretation" given by mutual consent to the treaties. They agreed upon the expediency of compensation," and suggested that the discussion had become confined to two points, the principles which ought to govern the political and commercial relations of the two countries and the most suitable form for liquidating and discharging the indemnities due. The examination of principles should come first in order, they said, for "indemnification can only result from an avowed violation of an acknowledged obligation," and an "agreement upon principles can alone assure peace and maintain friendship." The French ministers then, al

"

luding to the treaties, referred to the second article of the draft submitted by the Americans, which provided that the commission suggested should decide claims "conformably to justice and the law of nations, and in all cases of complaint prior to the 7th of July, 1798, they should pronounce agreeably to the treaties and consular convention then existing between France and the United States." Now this second article of the draft applied only to claims of citizens of each country, while July 7, 1798, was the date of the act of Congress annulling the treaties; but the French ministers ignoring this said that they saw no reasons for the distinction, as the treaties and convention are "the only foundations of the negotiations;" that from them arose the misunderstanding, and upon them "union and friendship should be established ;" and they thus significantly concluded, "when the undersigned hastened to acknowledge the principle of compensation, it was in order to give an unequivocal evidence of the fidelity of the French Government to its ancient engagements, every pecuniary stipulation appearing to it expedient as a consequence of ancient treaties, and not as the preliminary of a new one." So the French were planted squarely on the treaties which the Americans were forbidden to consider as existing after July, 1798. Two days later our ministers explained their position (ibid, 592), and nine days later wrote to the Secretary of State (ibid., 607) that their success was still doubtful, as the "French think it hard to indemnify for violating engagements unless they can thereby be restored to the benefits of them." Soon followed a conference between the plenipotentiaries, when the negotiations were brought to a halt, as no further progress could be had until other "powers" or "instructions," for the two words seem to have been used synonymously, were received from the First Consul.

The French ministers had frequently mentioned the insuperable repugnance of their Government to surrender the claim to priority assured to it in the "commercial treaty of 1778," urging:

The equivalent alleged to be accorded by France for this stipulation, the meritorious ground on which they generally represented the treaty stood, denying strenuously the power of the American Government to annul the treaties by a simple legslative act; and always concluding that it was perfectly incompatible with the honor and dignity of France to assent to the extinction of a right in favor of an enemy, and as much so to appear to acquiesce in the establishment of that right in favor of Great Britain. The priority with respect to the right of asylum for privateers and prizes was the only point in the old treaty on which they had anxiously insisted, and which they agreed could not be as well provided for by a new stipulation. (Doc. 102, p. 608.)

The American envoys (July 23, 1800), in answer to the French arguments, reducing to writing the substance of two conferences, said (Doc. 102, p. 612):

As to the proposition of placing France, with respect to an asylum for privateers and prizes, upon the footing of equality with Great Britain, it was remarked that the right which had accrued to Great Britain in that respect was that of an asylum for her own privateers and prizes, to the exclusion of her enemies, wherefore it was physically impossible that her enemies should at the same time have a similar right. With regard to the observation that by the terms of the British treaty the rights of France were reserved, and therefore the rights of Great Britain existed with such limitation as would admit of both nations being placed on a footing which should be equal, it was observed by the envoys of the United States that the saving in the British treaty was only of the rights of France resulting from her then existing treaty, and that that treaty having ceased to exist the saving necessarily ceased also, and the rights which before that event were only contingent immediately attached and became operative.

Admission of the continuing force of the old treaties might involve admission of France's national claims, and in any event would put her ministers into a most advantageous position, giving them as consideration, to be surrendered at her pleasure in the new negotiation, what would then be a vested, existing, and acknowledged right to the guarantee, the alliance, and the use of our ports. Placed in this position, France would be without incentive to action; she would start in the discussion of a new treaty with more surrendered to her at the outset than she had hoped to obtain at the conclusion, and all that she afterwards gave up would be by way of generous concession. Whatever the law, whether the treaties were or were not abrogated by the act of Congress or the acts of parties, the American envoys were not permitted to admit the French contention, but were in duty bound to argue that the treaties were without continuing force. They followed this course, saying:

*

*

A treaty being a mutual compact, a palpable violation of it by one party did, by the law of nature and of nations, leave it optional with the other to renounce and declare the same to be no longer obligatory * The remaining party must decide whether there had been such violation on the other part as to justify its renunciation. For a wrong decision it would doubtless be responsible to the injured party, and might give cause for war; but even in such case, its act of public renunciation being an act within its competence would not be a void but a valid act, and other nations whose rights might thereby be beneficially affected would so regard it." (Doc. 102, p. 612.)

After further argument, they added that as it was the opinion of the French ministers that "it did not comport with the honor of France" to admit the American contentions, and at the same time be called upon for compensation, they offered "as their last effort" a proposition which suspended payment of compensation for spoliations "until France could be put into complete possession of the privileges she contended for, and at the same time they offered to give that security which a great pecuniary pledge would amount to for her having the privilege as soon as it could be given with good faith which might perhaps be in a little more than two years; at any rate within seven." (Ibid., p. 613.)

The French answered (Doc. 102, p. 615) that they still found no reason to consider the treaties of 1778, as broken; the act of 1798, being that of one party, could not destroy, they said, "otherwise than by war and victory," that which was the engagement of two. After some further argument they wrote that they would not push further their observations, as—

Those which they have repeated suffice to establish the rights of France, and to her the honor of a sacrifice which she would make in renouncing the exclusive right of entry into the ports of America, for French privateers accompanied with their prizes. (Ibid., p. 615.)

As to the proposal of a money indemnity for delay they said:

The proposition of the American ministers offers to the Republic at a distant time the hope of exclusive advantages, and for the present, and, perhaps, for seven years, an humiliating forfeiture of those rights, and a shameful inferiority with regard to a state [Great Britain] over which she had acquired these privileges by the services she had rendered to America when it made war with such state. When the ministers of France can subscribe to a condition unworthy the French nation, the price which they would put upon their humiliation would it not be the continuance of a subjection, which they consider to be contrary to the interest of the United States. The dependence of her ally cannot be for her au indemnity for a national suffering. The French ministers believing it to be their duty to insist with their Government upon the immediate renunciation of a privilege well acquired, it would be contradictory that they should provide for its return at a distant time. (Ibid., pp. 615, 616.)

Some two weeks later the French again insisted that the treaties were not broken by the state of " misunderstanding" which had existed "through the acts of some agents rather than by the will of the respective Governments" and which had not been a state of war, at least on the side of France. (Ibid., p. 616.) Yet, after this opening, the ministers use language in apparent antagonism with the position thus and before advanced that the treaties were still existent; their tone towards the United States is marked by extreme bitterness, but they finish by consenting to an abolition of the treaties and the couclusion of a new one. The alternative proposition is thus put:

Either the ancient treaties, with the privileges resulting from priority and the stipulation of reciprocal indemnities, or a new treaty, assuring equality without indemnity. (Ibid., p. 618.)

To the first of these proposals our ministers were forbidden to assent, as it involved an admission of the continuing force of the treaties; to the second they could not assent, for their first duty was to obtain indemnity. The time had come when they must go beyond their instructions and assume personal responsibility. (Doc. 102, pp. 619, 620.)

In August, after some delay and apparent friction, the Americans, saying that "while nothing would be more grateful to America than to acquit herself of any just claims of France, nothing could be more vain than an attempt to discourse to her reasons for the rejection of her own," made the following propositions (ibid., pp. 623–625):

(1) Let it be declared that the former treaties are renewed and confirmed and shall have the same effect as if no misunderstanding between the two powers had intervened, except so far as they are derogated from by the present treaty.

(2) It shall be optional with either party to pay to the other within seven years 3,000,000 of francs in money or securities which may be issued for indemnities, and thereby to reduce the rights of the other as to privateers and prizes to those of the most favored nation. And during the said term allowed for option the right of both parties shall be limited by the line of the most favored nation.

The third proposition looked to such modification of the mutual guarantee that military stores should be furnished by the one party to the value of 1,000,000 francs to the other when attacked, but either might within the seven years pay the lump sum of 5,000,000 francs to be freed from the obligation. The fifth proposition provided indemnities for individuals and that "public ships taken on either side [should] be restored or paid for," and the sixth that all property seized by either party and not yet "definitively condemned" should be restored on reasonable proof of it belonging to the other. So they finally agreed to recognize the existence of the treaties, the right of France to the guarantee and exclusive port privileges, and proposed to pay a lump sum to be free of their obligation in the future, for the propositions on this subject, while on their face mutual, were in effect for the benefit of the United States alone, France much prefering to revert to the statu quo.

Later during the negotiations an offer was made by us "to extinguish by an equivalent of 8,000,000 francs certain claims of France under the former treaties" (ibid., pp. 626 and 629); but even after all these concessions there was still no satisfactory promise of a result, although the existence of the treaties had in effect been recognized and "indemnity on either side in substance agreed to." The French now made a counter proposition continuing "the ancient treaties" "as if no misunderstanding