James Madison Papers

James H. Causten to James Madison, 1 January 1827

Baltimore January 1st. 1827

D Sir,

Under the countenance of the Gentlemen signers to the enclosed letter, purporting to be a list of the Baltimore sufferers from the depredations therein mentioned, many of whom are your personal friends, I take the liberty to introduce myself as the general agent of all the claimants in the United States, And as such, to execute the duty imposed on me, which I perform with great pleasure, of laying before you a volume of the documents which were laid before the Senate in May last by the President of the United States—together with a pamphlet explanatory of the subject matter at issue.

The documents referred to contain many growing out of your official conduct while entrusted with high duties in behalf of your Country, which, it is hardly necessary to add, were, in the view of the claimants, performed with marked assiduity and ability. This circumstance, together with the appreciation in which they regard your early services in founding the happy and, it is fondly hoped, durable institutions of our common Country, seems to point out this act as one of common respect—it is regretted that the occasion does not afford the opportunity to give a higher character to the act—such as would approximate the esteem and regard it is desirable to manifest.

The early uniform and untiring zeal with which you labored to rear our happy civil and political institutions, leaves no doubt of your solicitude to preserve them in all the simplicity and truth which at once characterize and identify them with their founders. Among their leading features: the inviolability of private property, stands, as of right it should stand, conspicuous as a fundamental principle: it is indeed the great distinguishing principle between freemen and Slaves; the common centre whence all that is valuable in our Government radiate. In short, in the emphatic language of President Jefferson to Congress, on Decr. 8th. 1800, "that it never may be seen here, that after leaving to labor the smallest portion of its earnings on which it can subsist, Government shall itself consume the residue of what it was instituted to guard." To sustain this great living principle, the sufferers referred to, not a few of whom have been despoiled of their all, invoke your aid.

The pretensions of the claimants, to indemnity from the United States for said spoliations, have been submitted to the ablest civilians of our country, and no instance has yet been found where a doubt existed of the obligation on this government to satisfy them. But the case is one of peculiar character, in which Statesmen alone, not Civilians, have to pass upon it. And hence, it becomes of the last importance that those should be consulted who laid the foundation of our government, and impressed upon it maxims of immutable truth.

The newspaper detail of proceedings of the Senate has doubtless informed you, that nearly Sixty Memorials on the subject before mentioned (the form of which is stated on the third page of the pamphlet herewith, to which I beg leave to refer) were, a few days since, referred to a select committee of that body.

You will be pleased to recollect that, between the years 1793 and 1800, many of our Merchants (being those for whom I am now soliciting your advice) suffered heavily in their property, by captures, confiscations and condemnations, &c. &c. by the Cruisers and tribunals acting under the authority, or color of authority of the French Government, in direct violation of international law, and treaties then subsisting between the two governments. The history of that period, as regards the conduct of the United States, has not been written: the historian will find it difficult to discover and pourtray the motives and conduct of the great actors of that eventful crisis. None feel the want of such a guide as myself, for it embraces the whole subject in my charge.

The first act of the French Revolution, raised the important question of obligation under the article of mutual guaranty, in the treaty of the 6th. Feb 1778. The steps taken by the then administration to avoid a demand of its execution; and subsequently,—and also by the succeeding administration, to get rid of it altogether: the instructions of the French government to its ministers resident here, to insist on that article being incorporated in any new treaty to be made: the instructions of President Adams to his Envoys to France, "not to renounce the claims for spoliations", and authorizing them to offer to the French, in lieu of continuing the mutual guaranty article in the proposed new treaty, a stipulation, to pay to France two hundred thousand Dollars pr. Annum, during any war in which France might be engaged: and the various complaints of France--are all, doubtless, fresh in your recollection. That negotiation failed.

The Secretary of State, by advertisement in the public journals, called upon the sufferers to transmit to his Department their proofs of loss, to be by him forwarded to the Minister at Paris, to be laid before the French government. The Merchants availed themselves of this voluntary offer of aid on the part of their government, and in accordance with the Seretary’s proposition, they lodged with him their proofs. No doubt this course was suggested by the Secretary, in consequence of an overture from the French government to our Envoys, to raise a Commission to decide on the Captures of American vessels by French Privateers, the sums awarded by whom should be paid to the claimants by the United States, and the same be considered a loan to France, which should be reimbursed in a time and manner to be agreed on. Although our Envoys declined the proposition—on the ground that England, then at war with France, would consider this a covert mode of aiding France against her, and thus involve us in the war; yet, the Secretary most probably considered, that some less objectionable arrangement might be made, under which said proofs might be used. Whatever the fact in this respect may be however, it is certain, that the government of the United States, by this mean, obtained possession of the proofs, surrendered the claims to France for a valuable national consideration, withheld from the public view the correspondence leading to said surrender (up to the close of the last session of Congress), and disclosed nothing in relation to the transaction than is upon the face of the Convention of the 30th. of September 1800.

It appears that the authority given to the Envoys, to stipulate for two hundred thousand Dollars in place of continuing the mutual guaranty article, was intended in fact to purchase out that article from the date of the new treaty thenceforward; leaving all the responsibilities incurred under it up to that period to be accounted for and satisfied in some other shape. But the course the discussion took enabled the Envoys to keep said authority out of view; and in effect, the spoliation claims were the consideration for the entire abrogation of the treaty of Alliance, the treaty of Commerce, and the Consular Convention, with all the responsibilities claimed or due to France under them or otherwise. As before stated the President charged the Envoys "not to renounce these claims": the Envoys accordingly pressed the French negotiators to admit an article into the Convention which should save them; and urged as a motive for their solicitude that if they should renounce them—or in other words, if they should not save them in the Convention, the United States would be responsible to their citizens for them. The French ministers admitted their liability; but contended that the claims of France, upon the Government of the United States, were of much greater magnitude than the claims of the American Merchants for spoliations, and proposed to consider each an offset to the other, and the whole closed; so that the convention should be entirely silent with regard to the respective claims: or, they proposed, to stipulate expressly for the spoliation claims, and also expressly for the claims due to France from the United States. But the Envoys declined both propositions, and then, at their instance, the following article was introduced into the Convention:

"Article 2d. The Ministers plenipotentiary of the two parties not being able to agree at present respecting the treaty of alliance of 6th. Feby. 1778, the treaty of Amity and Commerce of the same date, and the Convention of 14th. Nov 1788, nor upon the indemnities mutually due on claims; the parties will negotiate further on these subjects at a more convenient time, and until they may have agreed upon these points, the said treaties and convention shall have no operation, and the relations of the two countries shall be regulated as follows."

The French government ratified the Convention with said article. The Senate of the United States, voluntarily and unconditionally, struck out said article. The First Consul ratified the Convention as amended, by adding to his ratification the following condition, "provided that by this retrenchment the two states renounce the respective pretensions which are the object of the said article." And President Jefferson ratified the Convention finally, in the following words:

"Which ratifications were duly exchanged at Paris, on the 31st. day of July, in the present year; and having been so exchanged once again submitted to the Senate of the United States, who, on the 19th. day of the present month, resolved that they considered the said Convention as fully ratified, and returned the same to the president for the usual promulgation. Now, therefore, &c.c--dated 21st. Dec 1801." Signed Thomas Jefferson.

The ratification of the Convention in its original form by France, was a full recognition of the existence of the claims, and a direct obligation on France to negotiate and pay them. The claiming Merchants were entitled to the whole benefit, of this stipulation (as we allege); but the United States voluntarily surrendered it, for a manifest great public benefit without providing indemnity therefor.

That the institution of this Government was for the protection of each individual: that its great strength is the affection of the people: and that this protection and affection are reciprocal obligations, are self evident propositions.

It is seen, with very deep regret, that the creditors of the government are subjected to a tedious, vexatious, and often unjust delay in the settlement of their claims—even where a remedy is within their reach. But it is well known, that few find in the Congress of the United States, a tribunal competent, willing and ready, to examine into the minutiæ of old, intricate and irregular claims. Justice, unnecessarily delayed, ceases to be justice--and to this inconvenience all petitioners, without exception, are subjected.

A tribunal where cases of law and equity, against as well as for the government, may be disposed of, is much wanting; and the unsettled claims are accumulating so rapidly, that such will of necessity be erected at no distant period. In the mean time, a sycophantic servility, degrading to the spirit of the honest creditor, discreditable to the Nation, and to the last degree injurious to both, is the only means by which a hearing of this case can be had. On the part of the government there is but little difficulty in this case; if the claims are just they should be paid; if unjust, the judgment of the sufferers should be made satisfied, and the loss would then be borne with cheerfulness.

At the first session of Congress after the final ratification of said Convention, many of the claimants, by Memorial and Petition, urged their claims to indemnity upon that body, and several attempts were made during that session, in both Houses, to obtain the passage of a bill for that purpose; they failed, however, in consequence, as is understood, of the party spirit then existing and at its height. A few scattering applications have since that period from time to time been made, but the reports of the several committees to whom they were referred, clearly show, that evasion, not inquiry into their merits, was the governing motive. I have not been able to discover that the official papers and correspondence, by which alone the subject could be understood, have, till recently--and then only at my own instance as the agent for all the claimants--been called for by either House. The frequent rejections referred to, have produced a strong prejudice against the claims, and operate a denial of justice through the ordinary channel of petition. The claimants have, therefore, united in their application to congress, and ought not to doubt that their case will be examined with patience and candor, and be brought to a conclusion at once definitive and satisfactory. They are at the same time admonished by past experience not to rely too confidently on the justice and equity of their demands, even where the obligation on the government is so entirely free from doubt—the prejudices which operated against their success, heretofore, forbid the hope that all those whose duty it will be to pass judgment on their case, will discard the opinions formed without the official proof, and substitute those just views which the documents referred to should command.

In soliciting the opinion of those Statesmen who are removed from all party, political or pecuniary considerations, you are approached as one of the Fathers in whom we have a right to appeal.

The principal objections that have been urged against the claims, I ought not to pass over. They are, first, that Congress, in 1798, solemnly declared that the treaties with France were no longer obligatory on the United States: and second, that, subsequently to the depredations complained of, we took war for our satisfaction.

To the first objection, we answer--that it is not well founded, as we conceive, because Congress had not the right to annul existing treaties without the consent of France as one of the parties; and if even that right was perfect, yet all the responsibilities on either side up to that period were valid. If either party to such an engagement, could rightfully and at pleasure annul the contract, indemnity for nonperformance or malperformance could never be expected, since the party in default need only announce his dissent to discharge him from all liability.

To the second objection, we answer,

We made no declaration of War,

We did not even authorize reprisals,

We made no captures of Merchant vessels,

We simply authorized the capture of armed French vessels found hovering on our coast, that had committed or intended to commit violations on our peaceful commerce, and the recapture of our vessels found in the possession of French armed vessels.

In fact there was no war; all that was done by us was purely defensive. France yielded either to the existing circumstances of her own state, or the menacing attitude of ours: she sought negotiation: we met her overture: we restored all her national vessels which we had captured and still had in possession, and paid for those we had destroyed or otherwise disposed of. In short, we settled all the differences upon peace principles. The Convention of 1800 was the result of this negotiation: this instrument contains proof, in express terms, of the recognition of the existence of the treaties with France of 1778 and 1788 up to that period: and this recognition we consider an ample refutation of both objections.

Mr Pickering has favored me with his views on this subject, and has kindly permitted me to use his letter in this manner. I beg your perusal of the enclosed copy—not doubting you will place it in proper appreciation.

Mr. Everett, of the House Representatives, has made, in the 49 and 50th. numbers of the North American Review, an able exposition of the subject to which my letter relates, I beg leave to refer your attention thereto.

If this subject is of sufficient interest to overbalance the inconvenience it would give you to reply to my letter, I shall rejoice exceedingly: But I am at great loss for a suitable apology for my apparent presumption, in attempting to freshen your recollection by the tedious though imperfect statement I have indulged my pen in making; and more particularly, for my trespass upon your retirement. I trust, however, that my desire to preserve inviolate one of the great landmarks of our system, which you have honored with a constant care, and in which the fair character of our common country is directly, and your own fame indirectly, interested, will receive due consideration. With profound respect and esteem, I am, D Sir, Your most Obt: Servt:

James H. Causten

P. S. As the inclosed letter, signed by the Baltimore Merchants, is calculated for general purposes, I respectfully request to have it returned to me.

N. B. Since writing the aforegoing, I have addressed a similar letter to Mr. Monroe, and have therein referred to the letter of the Baltimore Merchants just mentioned: and have informed him that I should ask of your kindness to forward the same to him. May I therefore hope it will be agreeable to you to give it such direction. Most respectfully.

J. H. C.

RC (DLC). Docketed by JM: "claims for French spoliations, from Baltimore."

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