gotiators, and containing the project of a treaty, to justify his assertion. The letter was dated 20th August, 1800, and it would be recollected that its authors were the negotiators, on the part of the United States, of the treaty of the 30th of September, 1800. The extract is as follows: "1st. 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 he present treaty. "2d. It shall be optional with either party to pay to the other, within seven years, three millions 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. "3d. The mutual guarantee in the treaty of alliance shall be so specified and limited, that its future obligation shall be, on the part of France, when the United States shall be attacked, to furnish and deliver at her own ports military stores to the amount of one million of francs; and, on the part of the United States, when the French possessions in America, in any future war, shall be attacked, to furnish and deliver at their own ports a [JAN. 8, 1835. upon what ground did it rest? What had the Government done to protect the rights of these claimants? It had negotiated from 1793 to 1798, with a vigilance and zeal and talent almost unprecedented in the history of diplomacy. It had sent to France minister after minister, and, upon several occasions, extraordinary missions composed of several individuals. Between 1798 and 1800, it had equipped fleets and armies, expended millions in warlike preparation, and finally sent forth its citizens to battle and death, to force the payment of the claims. Were we now to be told that our failure in these efforts had created a liability against us to pay the money? That the same citizens who had been taxed to pay the expenses of these long negotiations, and of this war for the claims, were to be further taxed to pay such of the claims as we had failed to collect? He could never consent to such a deduction from such premises. But, Mr. President, said Mr. W., there is another view of this subject, placed upon this basis, which renders this bill of trifling importance in the comparison. If the failure to collect these claims has created the liability to pay them, that liability goes to the extent of the claims proved, and the interest upon them, not to a partial, and perhaps trifling, dividend. Who, then, would undertake to say what amount of claims might not be proved during the state of things he had described from the breaking out of the war between France and Lke amount in provisions. It shall, moreover, be op-England, in 1793, to the execution of the treaty, in 1800? tional for either party to exonerate itself wholly of its obligation, by paying to the other, within seven years, a gross sum of five millions of francs, in money or such securities as may be issued for indemnities." Mr. W. asked if he needed further proofs that not For a great portion of the period, the municipal regulations of France required the captured cargoes to be not confiscated, but paid for at the market value at the port to which the vessel was destined. Still the capture would be proved, the value of the cargo ascertained, be only the American Government, but the American nego-fore the commission which the bill proposes to establish; tiators, treated these obligations under the treaty as, in all respects, mutual, reciprocal, and equal; and if the fallacy of the argument that the United States had obtained to itself a valuable consideration for the release of these private claims in the release of itself from these obligations, was not utterly and entirely disproved by these facts? Was not the release of the obligations on the one side the release of them on the other? And was not the one release the necessary consideration for the other? How, then, could it be said, with any justice, that we sought our release at the expense of the claimants? There was no reasonable ground for such an allegation, either from the acts of our Government or of our neg negotiators. When the latter fixed a value upon our obligations as to the privateers and prizes, and as to the guarantee, in the same article they fixed the same price, to a franc, upon the reciprocal obligations of France; and when the former discharged our liability, by expunging the second article of the treaty of 1800, the same act discharged the corresponding liability of the French Government. Here, then, Mr. W. said, must end all pretence of a valuable consideration for these claims passing to the United States from this source. The onerous obligations were mutual, reciprocal, and equal, and the respective releases were mutual, reciprocal, and equal, and simultaneous, and nothing could be fairly drawn from the act which operated these mutual releases to benefit these claimants. and who would adduce the proof that the same cargo was paid for by the French Government? This principle, however, Mr. W. said, went much farther than the whole subject of the old French claims. It extended to all claims for spoliations upon our commerce, since the existence of the Government, which we had failed to collect. Who could say where the liability would end? In how many cases had claims of this character been settled by treaty, what had been collected in each case, and what amount remained upaid, after the release of the foreign Government? He had made an unsuccessful effort to answer these inquiries, so far as the files of the State Department would furnish the information, as he had found that it could only be collected by an examination of each individual claim; and this would impose a labor upon the Department of an unreasonable character, and would occupy more time than remained to furnish the information for his use upon the present occasion. He had, however, been favored by the Secretary of State with the amounts allowed by the commissioners, the amounts paid, and the rate of pay upon the principal, in two recent cases, the Florida treaty, and the treaty with Denmark. In the former instance, the payment was ninety-one and twothirds per centum upon the principal, while in the latter it was but thirty-one and one-eighth per centum. Assume that these two cases are the maximum and minimum of all the cases where releases have been given for partial payments; and he begged the Senate to reflect upon the amounts unpaid which might be called from the national treasury, if the principle were once admitted that a failure to collect creates a liability to pay. Mr. W. said he was, then, necessarily brought back to the proposition with which he started in the commencement of his argument, that, if the United States were liable to pay these claimants, that liability must rest upon the broad ground of a failure by the Government, after ordinary, and, in this instance, extraordinary efforts to collect the money. The idea of a release of the claims for a valuable consideration passing to the Government had been exploded, and, if a liability was to be claimed on account of a failure to collect the money, I priated, Mr. Livingston says: That in his assumption that a liability of this sort must go to the whole amount of the claims, he only took the ground contended for by the friends of this bill, he would trouble the Senate with another extract from the report of Mr. Livingston, from which he had before read. In speaking of the amount which should be appro "The only remaining inquiry is the amount; and on this point the committee have had some difficulty. Two modes of measuring the compensation suggested them. selves: "1. The actual loss sustained by the petitioners. "2. The value of the advantages received, as the consideration, by the United States. "The first is the one demanded by strict justice; and is the only one that satisfies the word used by the constitution, which requires "just compensation," which cannot be said to have been made when any thing less than the full value is given. But there were difficulties which appeared insurmountable, to the adoption of this rule at the present day, arising from the multiplicity of the claims, the nature of the depredations which occasioned them, the loss of documents, either by the lapse of time or the wilful destruction of them by the depredators. The committee, therefore, could not undertake to provide a specific relief for each of the petitioners. But they have recommended the institution of a board, to enter into the investigation, and apportion a sum which the committee have recommended to be appropriated, pro rata, among the several claimants.” If "The committee could not believe that the amount of compensation to the sufferers should be calculated by the advantages secured to the United States, because it was not, according to their ideas, the true measure. the property of an individual be taken for public use, and the Government miscalculate, and find that the object to which they have applied it has been injurious rather than beneficial, the value of the property is still due to the owner, who ought not to suffer for the false speculations which have been made. A turnpike or canal may be very unproductive; but the owner of the land which has been taken for its construction is not the less entitled to its value. On the other hand, he can have no manner of right to more than the value of his property, be the object to which it has been applied ever so beneficial." Here, Mr. W. said, were two proposed grounds of estimating the extent of the liability of the Government to the claimants; and that which graduated it by the value received by the Government was distinctly rejected, while that making the amount of the claims the measure of liability was as distinctly asserted to be the true and just standard. He hoped he had shown, to the satisfaction of the Senate, that the former rule of value received by the Government would allow the claimants nothing at all, while he was compelled to say that, upon the broad principle that a failure to collect creates a liability to pay, he could not controvert the correctness of the conclusion that the liability must be commensurate with the claim. He could controvert, he thought successfully, the principle, but he could not the measure of damages when the principle was conceded. He would here conclude his remarks upon the points he had noticed, by the earnest declaration that he believed the passage of this bill would open more widely the doors of the public treasury than any legislation of which he had any knowledge, or to which Congress had ever yielded its assent. Mr. W. said he had a few observations to offer relative to the mode of legislation proposed, and to the details of the bill, and he would trouble the Senate no farther. His first objection, under this head, was to the mode of legislation. If the Government be liable to pay these claims, the claimants are citizens of the country, and Congress is as accessible to them as to other claimants who have demands against the treasury. Why were they not permitted, individually, to apply to Congress to establish their respective claims, as other claimants were bound to do, and to receive such relief, in each case, as Congress, in its wisdom, should see fit to grant? [SENATE. Why were these claims, more than others, grouped together, and attempted to be made a matter of national importance? Why was a commission to be established to ascertain their validity, a duty in ordinary cases discharged by Congress itself? Were the Senate sure that much of the importance given to these claims had not proceeded from this association, and from the formidable amount thus presented at one view? Would any gentleman be able to convince himself that, acting upon a single claim in this immense mass, he should have given it his favorable consideration. For his part, he considered the mode of legislation unusual and objectionable. His principal objections to the details were, that the second section of the bill prescribed the rules which should govern the commission in deciding upon the claims, among which "the former treaties between the United States and France" were enumerated; and that the bill contained no declaration that the payments made under it were in full of the claims, or that the respective claimants should execute a release, as a condition of receiving their dividends. The first objection was predicated upon the fact that the bill covered the whole period from the making of the treaties of 1778, to that of the 30th September, 1800, and made the former treaties the rule of adjudication, when Congress, on the 7th July, 1798, by a deliberate legislative act, declared those treaties void, and no longer binding upon the United States or their citizens. It is a fact abundantly proved by the documents, that a large portion of the claims now to be paid, arose within the period last alluded to, and that treaties declared to be void should be made the law in determining what were and what were not illegal captures, during the time that they were held to have no force, and when our citizens were authorized by law to go upon the high seas, regardless of their provisions, Mr. W. said, would seem to him to be an absurdity which the Senate would not legalize. He was fully aware that the first section of the bill purported to provide for "valid claims to indemnity upon the French Government, arising out of illegal captures, detentions, forcible seizures, illegal condemnations, and confiscations;" but it could not be overlooked that illegal captures, condemnations, and confiscations, must relate entirely to the law which was to govern the adjudication; and if that law was a void treaty which the claimants were not bound to observe, and did not observe, was it not more than possible that a capture, condemnation, or confiscation, might, by compulsion, be adjudged illegal under the rule fixed by the bill, while that same capture, condemnation, or confiscation, was strictly legal under the laws which governed the commerce of the claimant when the capture was made? He must say that it appeared clear to his mind that the rule of adjudication upon the validity of claims of this description, should, in all cases, be the same rule which governed the commerce out of which the claims have arisen. His second objection, Mr. W. said, was made more as a wish that a record of the intentions of the present Congress should be preserved upon the face of the bill than from any idea that the provision suggested would afford the least protection to the public treasury. Every day's legislation showed the futility of the insertion in an act of Congress of a declaration that the appropriation made should be in full of a claim; and in this, as in other like cases, should this bill pass, he did not expect that it would be, in practice, any thing more than an instalment upon the claims which would be sustained before the commission. The files of the State Department would contain the record evidence of the balance, with the admission of the Government, in the passage of this bill, that an equal liability remained to pay that balance, whatever it might be. Even a re lease from the respective claimants he should consider as likely to have no other effect than to change their future applications from a demand of legal right, which they now assume to have, to one of equity and favor; and he was yet to see that the latter would not be as successful as the former. He must give his vote against the bill, whether modified in that particular or not, and he should do so under the most full and clear conviction that it was a proposition fraught with greater dangers to the public treasury than any law which had ever yet received the assent of Congress. When Mr. WRIGHT had concluded, Mr. WEBSTER rose and expressed a hope that he might, according to the usual courtesy of the Senate, be allowed to reply, once for all, to the arguments against the bill. If no other gentleman was about to speak in opposition, he was prepared now to go on, although the Senate was thin, in the hope that the vote might be taken either to-day or to-morrow. But he was willing to give way to any Senator who was desirous to be heard on the subject. Mr. KING, of Georgia, then rose and said, if the Senator from Massachusetts would pardon him, he would, before the question was taken on engrossing the bill, say something in justification of the vote he should give. He did not, however, propose to go fully into the subject. He had made no regular preparation with a view of doing so. But some of those friends with whom he had been very much in the habit of acting, especially on questions requiring a defence of the public treasury, had advocated the claims of those interested in the passage of the bill, with a degree of labor, zeal, and apparent earnestness of feeling, which afforded the best possible evidence of their entire conviction of the propriety of the course they had adopted; and he therefore felt it a respect due to them, as well as a justification of himself, to give at least some of the reasons why he should differ with them upon the present occa sion. Mr. K. said he should be brief, for the reason first stated. In fact, he did not think the bill called for a very wide range of discussion; for, although the his tory of the claims was a long one, and the facts and documents connected with them numerous, yet it would be seen from the discussion, so far as heard, that the facts necessary to be known and understood, to direct our judgment upon the bill, were neither numerous nor controverted; on the contrary, the difference in the minds of Senators, upon the merits of the claims, would result from a difference of conclusion from the same admitted facts, and not from any controversy about the facts themselves. What was the proposition, by the establishment of which the advocates of the bill sought to enforce upon the Senate the propriety of its passage? If he understood it, it was this: that France, on the 30th of September, 1800, was indebted to citizens of the United States (the claimants) at least five millions of dollars. That the United States were at the same time under treaty stipulations to France, onerous to them, and valuable to France; and that the United States, having charge of the claims of their citizens, released these claims to France, in consideration of a release of their own treaty stipulations to that nation. Hence it was contended that the United States are liable to their own citizens for their claims on France, upon the same principle that an agent is liable to his principal if he appropriates the effects of the latter to his own use. The doctrine was sound enough, if the proposition were established. But, in prosecuting an inquiry into the truth of the proposition, he should inquire, and, if possible, ascertain- 1st. Whether, in point of fact, the Government of [JAN. 8, 1835. France was, according to the existing rules of national law, indebted to the claimants five millions, or any other sum, on the 30th of September, 1800? 2d. Whether, in point of fact, the United States were, at the same date, bound by treaty stipulations, onerous to them, and valuable to France, which would afford a consideration for the release of the claims? And it might not be unimportant to inquire, in the third place, whether, if these claims once existed and were released by the acts of our Government in its regular administration, any responsibility should attach to the Government for obeying the necessary exigencies of State policy? Mr. K. returned to the first inquiry. Was France indebted to the claimants on the 30th September, 1800? That France had committed spoliations which made her liable at one time to claimants, was not disputed on either side, but insisted on by both. The claims, he said, arose as well by a reckless violation of the laws of nations as by repeated and sometimes admitted infractions of the treaty of commerce between the two countries, dated the 6th of February, 1778. Several of the articles of this treaty, connected with these claims, had just been read by his friend from New York, [Mr. WRIGHT.] The article most material he (Mr. K.) read. It is as follows: "Article 23d. It shall be lawful for all and singular the subjects of the Most Christian King, and the citizens, people, and inhabitants of the said United States, to sail with their ships with all manner of liberty and security, no distinction being made who are the proprietors of the merchandises laden thereon, from any port to the places of those who now are or hereafter shall be at enmity with the Most Christian King or the United States. It shall likewise be lawful for the subjects and inhabitants aforesaid to sail with the ships and merchandise aforementioned, and to trade with the same liberty and security, from the places, ports, and harbors of those who are enemies of both or either party, without any opposition or disturbance whatsoever, not only directly from the places of the enemy aforementioned to neutral places, but also from one place belonging to an enemy to another place belonging to an enemy, whether they be under the jurisdiction of the same prince, or under several. And it is hereby stipulated that free ships shall give a freedom to goods, and that every thing shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading, or any part thereof, should appertain to the enemies of either, contraband goods being always excepted. It is also agreed, in like manner, that the same liberty be extended to persons who are on board a free ship, with this effect, that, although they be enemies of both or either party, they are not to be taken out of that free ship, unless they are soldiers, and in actual service of the enemies." Another article in the treaty provided that a sea letter of a particular form, specified in the article, should, on being exhibited, determine the neutral or friendly character of the vsesel. This article was violated in the most flagrant manner, by an unexpected decree, requiring what they called a "role d'equipage," which took hundreds by surprise, who had prepared themselves with a letter in the form prescribed by the treaty. In short, France first violated the treaty, as seemed on all hands admitted, and continued her depredations from 1793 till the treaty of 1800. Nor was our Government remiss in attention to the claims of its citizens. Every effort was made to recover indemnity for them. Envoy after envoy was sent to the French court to negotiate on this subject; but they were subjected to the most degrading conditions as the price of the privilege of negotiating, and treated with a contempt only equalled by that which was paid to our flag; and at last virtually kicked out of the country. These indignities were submitted to until-nay, long after-forbearance ceased to be a virtue; and, finding negotiation hopeless, we determined to resort to force. Mr. K. insisted that the spoliations which were the subject of the bill had caused a war between the two countries-a war, to be sure, of limited duration, but still a public war, by which the claims were extinguished. The acts of a hostile nature passed by Congress in 1798 had all just been read or referred to by his friend from New York, the most material of which were those authorizing the capture of the armed vessels of France. On the 28th day of May, in that year, Congress passed an act authorizing the armed vessels of the United States to capture any armed vessel of France which had committed depredations on cur commerce, or which might be found cruising about our coasts for that purpose. This act has been called defensive, barely, in its character. Admit it to be so, said Mr. K., and what is to be said of the act of 9th July, 1798) This act authorizes the capture of French armed vessels any where on the high seas. In other words, it authorized a general maritime war with France. And did these acts, inquired Mr. K., end in idle ceremony? Not at all, sir. The President, as authorized, issued his proclamation to carry them into effect; and from that time the armed forces of the two nations understood perfectly well the hostile relations in which their respective nations stood to each other, and acted accordingly. When their ships met they instantly cleared for action; some of the most desperate conflicts ensued their masts were cut off by the dexterity of our gunners -their hulls were shattered into useless floating wrecks -their decks were drenched in the blood of their seamen-conquered, captured, carried into port, confiscated, sold, and distributed as prizes. And yet, gentlemen say there was no war in this! The Senator from New York, who has just taken his seat, in referring to this state of things, asked if it could be called peace? "Certainly," he was answered from the seat of the Senator from Massachusetts. "Certainly," we may call things by what names we please, but, in nature, they are not changed by the names we arbitrarily give them. We may call a declaration of war a proclamation of neutrality. We call a challenge to mortal conflict a love-letter or a may billetdoux. Ora bloody war may be called, as in this case, "a mere misunderstanding." Yet, these things would remain unchanged in their natures and consequences by the names assigned to them. But, inquired Mr. K., why is it that those hostilities, carried on by the authority of the Government, did not constitute war? He knew not what reason the Senator from Massachusetts, [Mr. WEBSTER,] who was to conclude the discussion, might assign; but other Senators had assigned no other reason than that "the negotiators said there had been no war." They might as well have "said" that there never was a flood. They might as well have "said" that the battle of Waterloo was a friendly salutation between the contending armies. Their sayings could not change war into peace. But the truth was, said Mr. K., the French negotiators, when the claims were first presented, "said" there had been war, "and that any indifferent nation would say so," and that, consequently, "no indemnities could be claimed." It makes but little difference, however, said Mr. K., what these gentlemen said in the politeness of their diplomacy, striving to forget the past, and mutually seeking the advantage in reviving an extinguished treaty. Mr. Vattel said, when he wrote his book on the law of nations, that "war is that state in which we prosecute our rights by force." Public war being that prosecuted by national authority. Were not these acts of hostility by national authority, and in the prosecution of our rights by force? Certainly they were. In fact, it was war, in a VOL. XI.-10 [SENATE. very unqualified sense. It was the forcible collision of the armed forces of the two nations, by authority of each. The claimants, then, on the 30th September, 1800, had no claim which we could, with technical right, insist on, and France never surrendered this right to disclaim them, or offered to surrender it, unless upon terms she thought advantageous to her. But it was said that if these claims were extinguished by war, they were revived by negotiation. Mr. K. inquired how they could be revived by mere negotiation? The envoys could not revive an extinguished claim by merely insisting on it, or taking it into notice in negotiating a treaty. They might as well have undertaken to revive the edict of Nantz. It was a matter they could not control without the approbation of the ratifying authority. It was of no consequence upon what principle they negotiated, but we should inquire upon what principle the Senate ratified. But it is said they were recognised as a subject of negotiation in the second article of the treaty. Very well, sir, and did the Senate ratify the second article? Not at all. Their first act, when the treaty was presented, was to put the sponge upon it. They said, in effect, let the second article be blotted from the instrument. Could the Senate have disclaimed, more emphatically, the notice which had been taken of the subject? The negotiators had taken the subject into consideration, and it was necessary to dispose of it. They therefore said, in the second article, that, "not being able to agree" upon the subject, they postponed it to a more convenient time. The second article expunged by the Senate, the treaty was sent back to Napoleon, and what did he do? Why, he agreed to the retrenchment of the second article, "provided"-provided what, sir?-that the respective nations would pay the claims of their citizens, respectively? Not at all, sir. He never thought of such a thing. For France had never paid its citizens for the claims they were at the same time setting up against us. But he agreed to the retrenchment of the second article, provided each party renounced the respective "pretensions which were the object of the second article." "Pretensions" was a very slighting term to use in reference to a valid debt. The pretensions in his mind, most likely, were the claims of mutual guaranty, and the privilege of neutrals; but whatever they were, this was only only another mode for disposing of them as not sustainable. So we see, sir, that the ratifying power acted on the principle that the claims were extinguished by hostilities, whatever the negotiators may have said or done in the matter. Mr. K. said that, after the second article was expunged, the matter stood precisely in the predicament in which it would have stood if the claims had not been noticed in the treaty. And he supposed it would hardly be contended that, if national hostilities had existed, and peace restored by treaty, without noticing claims which were the cause of hostilities, these claims would not be extinguished. But it is said our envoys alleged that this class of claims was due, and insisted on its payment. Certainly they did, sir, and on many things else they did not obtain. He understood his friend from Maine, [Mr. SHEPLEY,] who dwelt on this circumstance, had much of the confidence of his constituents as a lawyer, as well as a politician. If so, he would ask his friend if he had not often insisted strongly that thousands were due to his client when he knew there was not due to him one cent? Doubtless he had, and did only his duty in doing so. The Government and envoys acted on a similar principle. They were representing American citizens, and they did the best they could for them; but not being able to recover indemnities from France, it was a little hard their very diligence should be used as a reason for charging the United States with the claim. But it is further said that the French also acknowledged these claims. Yes, sir, said Mr. K., and how did they acknowledge them? They acknowledged them, always coupled with a condition that would at the same time extinguish them. They would negotiate for the payment of these claims, provided we would revive an extinguished treaty, and allow them to put their own price on its supposed obligations. What kind of acknowledgment was this? and they certainly never made any other. You, sir, said Mr. K., make claim on me for ten millions of dollars. Very well; I may safely answer, "your account is a false one, but I will acknowledge it, if you will permit me to produce a false receipt for it." "Your debt is barred or extinguished; but I have claims of greater amount against you of a similar character, objection to settle, if I can bring you in debt." Various offers were made on both sides, but they were all, when closely examined, of this nature; for they were always "to renew" the treaties, which implied their previous extinction; and these offers of renewal were always accompanied with modifications and conditions, though advantageous to the proposer. The claims, then, Mr. K. insisted, had been extinguished by the hostile relations between the two countries, and had never been revived either by negotiation or acknowledgment. and I have no Mr. K. then went into the second subject of inquiry. Were the United States, on the 30th of September, 1800, bound by treaty stipulations to the Government of France, onerous to the one and valuable to the other? Mr. K. thought not. The conduct of France had perhaps sufficiently discharged the United States from all the obligations of the treaties. But, to put the matter beyond doubt, in a judicial point of view, Congress, on the 7th July, 1798, passed an act declaratory on the subject, by which (after reciting in the preamble as a justification of the act the frequent violations of the treaties by France) it was enacted, "That the United States are of right freed and exonerated from the stipulations of the treaties and of the consular convention heretofore concluded between the United States and France, and that the same shall not henceforth be considered as legally obligatory on the Government or citizens of the United States." One would suppose, said Mr. K., that this act would settle the matter. But, to his utter astonishment, this right in the United States as an independent party to the treaty had been denied. It was said the consent of both parties must first be obtained. There might be some modification of the right as between the United States and its citizens claiming the benefit of a treaty; or the right of Congress to repeal a treaty by ordinary legislation, without reasons, might be questioned. But this was a judicial act of an independent sovereign Power, containing the reasons for the decision, which reasons all acknowledged to be perfectly true. And when gentlemen were so general in their denial of the power of Congress on this subject as to include the act in question, he scarcely knew how to treat such a position. What an extraordinary position we should be placed in. Having treaties of peace and commerce with all the world, any nation with whom we had made treaties might violate them at pleasure, drive our commerce from the ocean, and even bring war to the Capitol, and the United States could not move against the offender without breaking the faith of treaties. This would be a new principle to introduce into the law of nations. [JAN. 8, 1835. This principle has been much quoted of late to sustain the rights of the States of the Union to judge of an infraction of the constitution. He never could see the application of this principle to the rights of the States in their relation to the Federal Government, but when applied to the United States and France, two nations entirely independent in all their exterior relations, theprinciple was plain, and the application easy. Mr. K. said he had hastily turned to one authority on national law, which he believed spoke the sentiments of all elementary writers on the subject. [Mr. K. then read from Vattel, book 11, ch. 13, p. 213.] "Treaties contain promises that are perfect and reciprocal. If one of the parties fail in his engagements, the other may compel him to fulfil them. A perfect promise confers a right to do SO. But if the latter has no other expedient but that of arms to force his ally to the performance of his promises, he will sometimes find it more eligible to cancel the promises on his own side, also, and dissolve the treaty. He has und undoubtedly a right to do this, since his promises were made only on condition that the ally should, on his part, execute every thing which he had engaged to perform. The party, therefore, who is offended or impaired in those particulars which constitute the basis of the treaty, is at liberty to choose the alternative of either compelling a faithless ally to fulfil his engagements, or of declaring the treaty dissolved by his violation of it. On such an occasion, prudence and wise policy will point out the line of conduct to be pursued." It cannot be necessary, said Mr. K., to insist that the United States possess the same rights on this subject with other independent nations; and he presumed it would not be denied that the reasons set forth in the act for dissolving the treaty are perfectly true, and constitute a legal justification of the measure. It might safely be submitted to the Senate as an original question, whether France had not, by her violation of the treaty, justified its nullification by us? The author just quoted, said Mr. K., on another page, cites Grotius to prove that "every article of a treaty carries with it a condition, by the non-performance of which the treaty is wholly cancelled." I ask Senators, then, said Mr. K., whether France did not first violate the treaty? That she did so, is the very first position established by them. And here the advocates of the bill found themselves in this strange predicament: That their first position to establish a claim against France proved at the same time that the United States were not responsible for it. Mr. K. would not dwell longer on this branch of the subject. He considered the treaty clearly cancelled, as well by the acts of France as by its nullification by the United States for sufficient causes. He therefore concluded that, on the 30th of September, 1800, the United States were not bound by treaty stipulations to France, and therefore could have received no consideration for the release of the claims in question. But it is said that the treaty stipulations were valuable at the date referred to, because the American negotiators offered for them 8,000,000 francs; and one would be led to think, said Mr. K., from the confidence with which gentlemen refer to this offer, that they had something almost equivalent to the promissory note of the Government for at least this amount. He had already remarked that these offers in negotiation determined nothing, unless reduced to treaty and ratified. But when we examined this " offer," what kind of an offer was it? It was an offer which, if accepted by the French Government, would have brought them eight or nine millions of dollars in debt! It is said we offered From the time of Grotius up to the present time, it had, he thought, been acknowledged a universal principle of national law, that in cases of compact between independent nations, there being no common judge, each party had the right to judge for itself, "as well of the infraction as of the mode and measure of redress." I tied to France her West India islands; and three millions five millions of francs for a release from the sitpulations of the 11th article of the treaty of 1778, which guaran |