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§ 4. Uti possidetis

the basis of

The treaty of peace leaves every thing in the state in which it found it, unless there be some express stipulaevery treaty tion to the contrary. The existing state of possession is maintained, except so far as altered by the terms of the expressed. treaty. If nothing be said about the conquered coun

of peace, unless the

contrary be

gerents, and a treaty of peace puts an end to all claims for indemnity for tortious acts committed under the authority of one government against the citizens or subjects of another, unless they are provided for in its stipulations." President's Message. Annual Register for 1847, p. 407. Thus the Treaty of the 6th of February, 1853, for the adjustment of private claims of citizens of the United States on the government of Great Britain, and of subjects of Great Britain on that of the United States, was limited to such as arose subsequently to the treaty of peace of the 24th December, 1814. Treaties of the United States, 1854, p. 110.

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As to the character of the difficulties with France, in 1798-9 — the Supreme Court, premising that "Congress had raised an army, stopped all intercourse with France, dissolved our treaties, built and equipped ships of war, and commissioned private armed ships, enjoining the former and authorizing the latter to defend themselves against the armed ships of France, to attack them on the high seas, to subdue and take them as prize, and to recapture vessels found in their possession," declared that a public war, though an imperfect war, existed between the two nations, and that they were enemies to one another. The Court accordingly awarded salvage of one half, as for a recapture from an enemy, in the case of an American vessel, captured by a French privateer and recaptured by a public armed American ship. Dallas's Rep. vol. iv. p. 37. Bos v. Tingy. See further, as to the effect of this war in extinguishing prior claims, Webster's Works, vol. iv. p. 162. Benton's Thirty Years in the Senate, p. 487. Cong. Globe, 1854-5. By the second article, as originally proposed, of the Convention of September 30, 1800, for "terminating the differences" between the United States and France, between whom, as stated, actual hostilities then existed, it was stipulated that the parties would negotiate further, respecting the treaties of alliance and of commerce of 1778, and of the consular convention of 1788, and upon "the indemnities mutually due and claimed." This article the Senate, in ratifying the treaty, expunged; and, at the same time, notwithstanding the perpetual character of its first article, which, as is usual at the close of a war, declared that there should be "a firm, inviolable, and universal peace between the French Republic and the United States," they limited the duration of the whole treaty, without an exception even of that article, to eight years. The First Consul, in ratifying it, added as a proviso," that by this retrenchment the two States renounce the respective pretensions, which are the object of the said article." In this form the ratifications were exchanged in Paris. Mr. Madison, Secretary of State, wrote to Mr. Livingston, Minister to France, 18th December, 1801: — "I am authorized to say, that the President does not regard the declaratory clause as more than a legitimate inference from the rejection by the Senate of the second article." Cong. Doc. 19th Cong. 1st Sess. No. 122, p. 703. President Jefferson,

try or places, they remain with the conqueror, and his title cannot afterwards be called in question. During the continuance of

however, deemed it advisable to submit the convention anew to that body. The Senate, taking the same view of it as he did, resolved that they considered the convention duly ratified, and returned the same to the President for the usual promulgation. U. S. Statutes at Large, vol. viii. p. 194. The treaty thus stood, it is conceived, when promulgated, as respects the subject of the second article, precisely as it would have done, if that article had never been contained in it ; and, moreover, by the express declaration of both governments, its omission was tantamount to a renunciation of the pretensions to which it refers, whatever the effect, in other respects, of the limitation, as to the duration of the treaty, might be. In a case, arising under the Treaty of 1819, with Spain, the Supreme Court held, "That where one of the parties to a treaty, at the time of its ratification, annexes a written declaration explaining ambiguous language in the instrument, or adding a new and distinct stipulation, and the treaty is afterwards ratified by the other party with the declaration attached to it, and the ratifications duly exchanged, the declaration thus annexed is a part of the treaty, and as binding and obligatory, as if it were inserted in the body of the instrument. The intention of the parties is to be gathered from the whole instrument, as it stood when the ratification were exchanged." Howard's Rep. vol. xvi. p. 650. Doe et al. v. Braden. But the expunging of the second article did not affect the other provisions of the treaty. By the third article the public ships, that had been captured, were to be mutually restored. By the fourth article, it was agreed that "property captured, and not yet definitively condemned, or which may be captured before the exchange of ratifications, (contraband goods destined to an enemy's port excepted,) shall be mutually restored," &c. The proofs, on both sides, to be required in reference to vessel and cargo, are minutely prescribed in the treaty; and it is added: "This article shall take effect from the date of the signature of the present Convention. And if, from the date of the said signature, any property shall be condemned, contrary to the intent of the said convention, before the knowledge of this stipulation shall be obtained, the property so condemned shall, without delay, be restored or paid for."

The fifth article would seem to be confined to matters of contract, which are not extinguished by a state of war, but are revived at peace. "Art. 5. The debts contracted by one of the two nations with individuals of the other, or by the individuals of 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 this clause shall not extend to indemnities claimed on account of captures or confiscations."

Complaints very soon arose of the non-performance, by France, of the stipulations of these articles, particularly of the fourth article. In a note, 29th Thermidor, year 9, (17th August, 1801,) from M. Talleyrand, Minister of Foreign Affairs, to the Commissary of the Government, near the Council of Prizes, he tells him: "The two nations have guaranteed, the one to the other, the restitution -- 1. Of national ships; 2. Of armed or unarmed ships that shall be known to belong to

the war, the conqueror in possession has only a usufructuary right, and the latent title of the former sovereign continues, until

their citizens, according to the proofs specified in the fourth article, and that without any exception, restriction, or reserve; 3. Of all property forming part of the cargo of said ships, with the only exception of merchandise specified by the thirteenth article, under the denomination of contraband of war, and which shall be destined for the enemy. You will, therefore, solicit the Council to apply, as soon as possible, the provisions of the convention to American prizes, in all that relates to them." Cong. Doc. 19 Cong. 1st Sess. No. 102, p. 555.

The claims under this (fourth) article, as well as those under the fifth, continued to be pressed upon the French government, during the period intervening between the ratification of the Convention of 1800 and the conclusion of the negotiations for the purchase of Louisiana. By one of the conventions of 30th April, 1803, connected with that transaction, 20,000,000 francs were set aside, for the payment of American claims; and it would seem, from the diplomatic correspondence of that period, that it was expected that it would exceed the amount, for which France was justly liable, and be applicable to all subsisting claims. The matter, however, became involved in almost inextricable confusion, by the terms used in the treaty, and the looseness with which it appears to have been drawn. By "Art. 1. The debts due by France to citizens of the United States, contracted before the 8th of Vendemiaire, ninth year of the French Republic, (30th September, 1800,) shall be paid according to the following regulations, with interest at six per cent., to commence from the periods when the accounts and vouchers were presented to the French government." It was declared, by the second article, that "the debts provided for, &c., are those whose result is comprised in the conjectural note, (a,) annexed to the present convention, and which, with the interest, cannot exceed the sum of twenty millions of francs. The claims comprised in the said note, which fall within the exceptions of the following articles, shall not be admitted to the benefit of this provision." "Art. 4. It is expressly agreed that the preceding articles shall comprehend no debts but such as are due to citizens of the United States, who have been and are yet creditors of France, for supplies, embargoes, and for prizes made at sea, in which the appeal has been properly lodged, within the time mentioned in the said convention of the 8th Vendemiaire, ninth year, (30th September, 1800.) Art. 5. The preceding articles shall apply only, first, to captures, of which the Council of Prizes shall have ordered restitution; it being well understood that the claimant cannot have recourse to the United States, otherwise than he might have had to the government of the French Republic, and only in case of the insufficiency of the captors; second, the debts mentioned in the said fifth article of the convention contracted before the 8th Vendemiaire, an 9, (30th September, 1800,) the payment of which has heretofore been claimed of the actual government of France, and for which the creditors have a right to the protection of the United States; the said fifth article does not comprehend prizes whose condemnation has been or shall be confirmed. Art. 10. The rejection of any claim (by the American commissioners appointed under the convention to examine the claims) shall have

the treaty of peace, by its silent operation, or express provisions, extinguishes his title for ever.1

no other effect than to exempt the United States from the payment of it; the French government reserving to itself the right to decide definitively on such claim, so far as it concerns itself." U. S. Statutes at Large, vol. viii. p. 212.

It will be seen, by a reference to the two conventions, that the language of the one of 1803 does not, in terms, describe the claims for which, after the abrogation of the second article, France remained liable to the United States, under the Treaty of 1800. The conjectural note, though not printed in the Statutes of the United States with the treaty to which it was annexed, will be found in Cong. Doc. 19 Cong. 1st Sess. No. 102, at p. 760. It is principally composed of claims for supplies received by the French government, most of which, were cases of contract, and for losses sustained at Bordeaux, in consequence of the embargo of 1793, which latter are not embraced within the language of the fifth article of the Convention of 1800; though, as a right to an indemnity against a foreign State attaches to the property, and passes by cession, they may be included in the term "debts," as employed in the fourth article of that of 1803. See Peters's Rep. vol. i. p. 215. Comegys v. Vasse. The subject was involved in additional obscurity, by the reference in the preamble of the latter convention, in connection with the fifth article, to the second or abrogated article of the first convention. It would seem, from the contemporaneous correspondence, that many of the cases provided for, though included in the second article, were also within the scope of the fifth, and, therefore, not extinguished by the annulling of the former article. Mr. Livingston, in a letter of 17th April, 1802, to the Minister of Exterior Relations, had said: :- "The whole of the fifth article, taken together, amounts to an express stipulation to pay every debt due to individuals, except such as they might claim for indemnities for captures and condemnations, and must have been so construed, had the second article continued in the treaty. On its being erased, the fifth article stands alone as a promise to pay, with the single exception of indemnities for captures and confiscations." Ibid. p. 717.

The difficulty of rendering the two conventions consistent with one another may well be conceded, after the following admission of one of the American Plenipotentiaries : "Your instructions," says Mr. Livingston, 3d May, 1804, to the Secretary of State, "to negotiate a new explanatory treaty, proceeds upon the idea, that the convention does not include all the bonâ fide debts provided for by the Convention of Morfontaine, (30th September, 1800.) Whatever inaccuracy there may be in the expression, it was certainly the intention to make it co-extensive, except so far as to preclude foreigners and foreign property from its provisions. The first article shows clearly that this was the object of the treaty; nor do I think that the subsequent words control, though they certainly somewhat obscure, the sense. The fact was, I had drawn the convention with particular

1 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, §§ 4, 5. Vattel, Droit des Gens, liv. iii. ch. 13, §§ 197, 198. Martens, Précis du Droit des Gens, liv. iii. ch. 4, § 282. Klüber, Droit des Gens Moderne de l'Europe, §§ 254–259.

The restoration of the conquered territory to its original sovereign, by the treaty of peace, carries with it the restoration of

attention; it did not exactly meet with Mr. Monroe's ideas, to whom the subject was new; this produced some modifications, and these, again, which would have fully answered our purposes, were struck out by Mr. Marbois's wish to give a preference to debts that had a certain degree of priority in the French bureau. The moment was critical; the question of peace or war was in the balance, and it was important to come to a conclusion before either scale preponderated. I considered the convention as a trifle, compared with the other great object; and I was ready to take it under any form." Ibid. p. 817. As intimated in the preceding extract, Mr. Livingston had been directed, January 31, 1804, " to adjust with the French government a provision for comprehending, in the Convention of 1803, the claims still remaining under the Convention of 1800; and, should the French government refuse to concur in any proposition that will restore the latitude given to claims, as defined by the first convention, and which is narrowed and obscured by the text of the last, it will be proper to settle with the government, if it can be done, such a construction of this text, as will be most favorable to all just claims," &c. Ibid. p. 800. This arrangement was declined; the French Minister of Exterior Affairs, in his note to Mr. Livingston, 6th September, 1804, declaring, that, "in adhering to the dispositions of the treaty, from which his Imperial Majesty will not deviate, any explanatory convention would be superfluous; and the intention of his Imperial Majesty is, to keep from all future questions an affair completely terminated. The Convention of the year 9, (1803,) foresaw the whole case; the whole of the American claims are to be placed to the account of the Federal Government; a list of them has been made. The liquidation of the articles of which it is composed shall be decided before the rest; if it does not reach the sum of twenty millions, other claims will be comprehended therein, but none shall be which exceed this sum, because it is at this point that the two governments are agreed to stop." Ibid. p. 830. The following statement is from a work originally published by the French negotiator of the treaty, the Marquis de Marbois, in 1828:

"The Convention of the 30th of September, 1800, had for its object the securing of reciprocal satisfaction to the citizens of the two States, and the preventing, as far as possible, of any thing that could for the future affect their good understanding. We there find the principle, the wisdom and legality of which only one nation disputes, 'that free ships make free goods, although they are the property of an enemy.'

"A special promise had been given to pay the debts arising from requisitions, seizures and captures of ships made in time of peace; but the execution of the agreement had not followed the treaty. For two years and a half, the Minister of the United States had been reiterating his reclamations, and demanding in vain the reparation of these losses. The cession of Louisiana afforded the means of realizing promises that had been so long illusory. The Americans consented to pay eighty millions of francs, on condition that twenty millions of this sum should be assigned to the payment of what was due by France to the citizens of the United States.

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