From Levi Lincoln
Washington Novr 15. 1803.
In despair of being able to form a decided opinion or one perfectly satisfactory to myself, from the facts or principles of which I am possessed, respecting the submitted question,1 I can only state the course and result of certain reflections on the subject. The several articles of the convention obviously designed to designate the same demands, as those which the U. States are held to satisfy, being indefinite in themselves, expressed in varied terms, and not according with the expressed intent of preceeding articles, and preceeding treaties to which they refer occasions the perplexity. From the evident marks of hurry impressed, in some instances, on the face of our late negotiations with France, it is not to be presumed that the negotiators attached precise ideas to all the principal terms which they made use of. It is clear, that the same terms, as used in different articles, will not admit of the same construction.
For the purpose of ascertaining their meaning, it seems necessary to consider, as parts of one intire instrument, the treaty of cession, & the two Conventions, as they refer to, and a [re] dependent on each other, and were made at the same time, in pursuance of one intire agreement, however, independent they may be of each other in their execution.
The 2d Art. of our treaty with France Sept. 30th. 18002 which the late convention refers to as containing some of the objects to be provided for at present, mentions indemnities generally as [‘]due, or claimed,’ & which were to be the subject of a future adjustment.
The 5th article of the same treaty3 provides for the payments of ‘debts contracted,’ by the French Govt., with the individual citizens of the United States, saving indemnities claimed on account of captures or confiscations.
The makers of the treaty of 1800 comprized in the terms “debts contracted” and “indemnities due or claimed” all the demands which they then meant to provide for, or to reserve for a future adjustment. Had that treaty have been ratified, in all its articles, and the payments of debts have been made, as provided for in the 5th. and as therein, & in the 2d. they are distinguished from indemnities, no after demands, but those comprized under the term indemnities could have been made, on the French Govt. Considering these articles connectedly, & in connection with other parts of this treaty, there can be but little doubt of its having been the intention of their framers to include all just demands, as well for freight, as for other causes within the general description of the debts mentioned in the 5th, and the indemnities excepted therefrom, & reserved, in the 2d. Article. No reason can be assigned, why a claim on account of freight should not be considered, as within the terms, or the meaning, of one or the other, of those articles—within the first, when founded on any contract, & within the last, if resulting from capture, or any transaction, without an agreement, or the consent of the claimant.
The 9th Art. of the treaty of the 30th of April 18034 expressly declares it to be object of the Convention of the same date “to provide for the payment of debts due to the citizens of the U. S. by the French Govt. prior to the 30th of Sept 1800.” The first Art; of the Convention securing a payment to the F. Govt. mentions another Convention also which shall fix the sum, “for the payment of the debts due by France to the citizens of the U. States.”
To provide for the payment of these debts, is the avowed object of last mentioned Convention. In the first Sec, it is said, that it is “to secure the sum due by France to the citizens of the U. S.,” in compliance with the 2d & 5th articles of the treaty of the 30th of Sept. 1800. that the respective ministers had been appointed, who had agreed to the following articles.
1st. That, ‘the debts due’ by France to citizens of the U S. before Sept 30th 1800 shall be paid according to certain regulations. This last term may possibly refer to the qualifications of the debts, as well as to the mode of payment.
“The sum due,” and ‘the debts due by France’ as expressed in the above mentioned article & Section, are to be paid,5 in compliance with the 2d. & 5th articles of the treaty of 1800—that is, so paid,6 as would be in compliance with them, was this 2d article in force; or, in compliance, with the principles therein expressed. An execution of this 2d. article, or a payment in pursuance of its provisions, would be one in consequence of a ‘negotiation,’ or an ‘adjustment’ by the two nations respecting ‘indemnities.’ The convention is such an adjustment by the two nations, by which it, is determined on what account there shall be indemnit[i]es, & in what instances the U S. shall be held to satisfy them, and the other demands, under the term debts, as described in the said 5th article.
It does not appear that accounts and vouchers for freight were among those mentioned in the first article of the convention, as presented to the French Govt., or that debts for freight were among those, whose result was comprized in the conjectural note mentioned in the 2d. Article. If they were not, it is conclusive agt. the demand in question, but if they were, no conclusion results therefrom in support of the claim if it is within the subsequent exceptions.
The 4th Art of the Convention confines the demands which the United States are held to pay, to such debts as are due, for supplies, for imbargoes, or for prizes made at sea, in which the appeal has been properly lodged within the time mentioned in the Convention of 1800. The mistake in there being no such time mentioned, will probably not alter materially the effect of this article.
An execution of that convention, being an express object of the late one, this last, particularly refers to the 2d. Article of the first respecting indemnities, and to its 5th respecting debts, but so confounds & limits these terms, as to render their meaning in some instances to a degree doubtful, & in others, very circumscribed. The “debts contracted” of this 5th Art. are by the 4th as above stated, confined to those for supplies, at least so far as they are tran[s]ferred to the U S. for payt. Debts, or demands for the freight in question, cannot be considered, on any principles, as included in this description. The “indemnities claimed on account of captures or confiscations,” and “indemnities due or claimed” as mentioned in the above rd. 5th & 2d Article, are confined in like manner, to indemnities for imbargoes, & prizes made at sea. A demand, on account of an imbargo, detaining both vessel & cargo, or the vessel alone, can in no sense of the word, be considered as including a demand for the vessel, having transported the cargo, which is the ground of a claim for freight.
Are then, ‘debts,’ or rather demands, on account of freight, in cases of capture, as distinguished from “debts due for supplies” or “for imbargoes,” provided for under the terms “debts due for prizes7 made at sea?”8 The positive effect of these terms, is to include only such demands as are in consequence of captures made at sea, but not, necessarily, all such. The next article of this Convention, therefore limits the demand on account of captures, to such, as had been or should be ordered to be restored, and in cases of the insufficiency of the captors, & expressly excepts demands, on account of prizes, whose condemnation had been, or should be confirmed. These limitations, being inconsistent with the idea of a payment of freight in some instances in which it may be clearly due from the French Govt. or the captors & not very congenial with such an idea in others, conclude with great strength in favor of excluding it in all cases, as a demand transferred to the United States.
Demands for freight where individuals may have transported articles, for the French Govt. or for its citizens if such have existed, as they are within no positive provision of the convention, they are out of the question. In such cases there was a voluntary credit, which if misplaced, as it was the creditor’s folly, so it will be his loss: the U S., in no event and on no principles, being bound to protect or pay such claims, they not being debts, for supplies as before stated, or on account of captures at sea, as above expressed.
A decree, or an order for ‘restitution’ or condemnation is, either of the vessel & cargo—or, secondly a condemnation of the vessel where the cargo is restored, or, 3dly. a condemnation of the cargo, where the vessel is restored. In the two first cases on general principles there may be a demand for damages, but its only in the last that there can be a demand for freight against the captors; As, then, this order of ‘restitution,’ is of such a kind, as devolves the obligation of making the payment mentioned in the convention, on ‘account of captures at sea,’ and as it is only an order of condemnation of cargo, that can devolve the obligation of the payment of freight, It is to be presumed that the convention meant to provide for the payment or restitution of the vessel or cargo, only, which are due from the captors, on an order of restoration; and not for the payment of freight which is due only in the event of a condemnation of the cargo and this, with some exceptions. If the condemned cargo is contraband; if the vessel is coasting from one port of the enemy to another; if she is engaged in a trade between the mother country & her colonies not allowed of in a time of peace, or in any other was9 departs from the principles of a neutral conduct, freight is usually denied. These deviations altho they may not expose the vessel to confiscation, have been considered, by the usages of nations, as sufficient to forfeit the right to freight.
It may be difficult to reconcile the provision in the convention for the payment of debts thus narrowed down & confined, to demands for supplies, for imbargoes, & for vessels or cargos ordered to be restored, with its more inlarged professions, and its repeated reference to the two articles of the treaty of 1800. Yet I am inclined to think such ought to be its construction, and that the opinion of the two commissioners is correct. To extend the provision further, would, I think, be unauthorized by the articles themselves, or the rules of construction. The creditors, for freight have no cause for complaint against the U S. There demands were against the French Govt. And if the Convention have not transferred them, they still remain good as they were, against their original creditors. The Commissioners who are made the judges, are of the opinion, that debts for freight are not tran[s]ferred. But if they were doubtful, the effect ought to be the same. They could never decide that an instrument of a doubtful, or fairly capable of a different construction, had charged the American nation with the debts of the French. The Convention supposes, by its expressly reserving to the French Govt. the right of deciding on such claims, as shall be so rejected as to exempt the United States from their payment that there may be some which they may be bound to satisfy. Among those may be the demands for freight. To charge the sum mentioned in the Convention with these kind of debts, if they are not fairly chargeable on it, would be not only injurious to the United States, but injustice to the indisputable convention debtors in the event of that sum’s being insufficient. The foregoing opinions, altho’ repeatedly reviewed, are submitted to your consideration, with real diffedence. I have the honor to be Sir most respectfully your most obt Servt.