Part 36

I transmit herewith to the House of Representatives a report from the Secretary of State, with accompanying documents, in answer to their resolutions of the 30th of January and 23d February last.

FRANKLIN PIERCE.

VETO MESSAGES.

WASHINGTON, February 17, 1855.

To the House of Representatives:

I have received and carefully considered the bill entitled "An act to provide for the ascertainment of claims of American citizens for spoliations committed by the French prior to the 31st of July, 1801," and in the discharge of a duty imperatively enjoined on me by the Constitution I return the same with my objections to the House of Representatives, in which it originated.

In the organization of the Government of the United States the legislative and executive functions were separated and placed in distinct hands. Although the President is required from time to time to recommend to the consideration of Congress such measures as he shall judge necessary and expedient, his participation in the formal business of legislation is limited to the single duty, in a certain contingency, of demanding for a bill a particular form of vote prescribed by the Constitution before it can become a law. He is not invested with power to defeat legislation by an absolute veto, but only to restrain it, and is charged with the duty, in case he disapproves a measure, of invoking a second and a more deliberate and solemn consideration of it on the part of Congress. It is not incumbent on the President to sign a bill as a matter of course, and thus merely to authenticate the action of Congress, for he must exercise intelligent judgment or be faithless to the trust reposed in him. If he approve a bill, he shall sign it, but if not he shall return it with his objections to that House in which it shall have originated for such further action as the Constitution demands, which is its enactment, if at all, not by a bare numerical majority, as in the first instance, but by a constitutional majority of two-thirds of both Houses.

While the Constitution thus confers on the legislative bodies the complete power of legislation in all cases, it proceeds, in the spirit of justice, to provide for the protection of the responsibility of the President. It does not compel him to affix the signature of approval to any bill unless it actually have his approbation; for while it requires him to sign if he approve, it, in my judgment, imposes upon him the duty of withholding his signature if he do not approve. In the execution of his official duty in this respect he is not to perform a mere mechanical part, but is to decide and act according to conscientious convictions of the rightfulness or wrongfulness of the proposed law. In a matter as to which he is doubtful in his own mind he may well defer to the majority of the two Houses. Individual members of the respective Houses, owing to the nature, variety, and amount of business pending, must necessarily rely for their guidance in many, perhaps most, cases, when the matters involved are not of popular interest, upon the investigation of appropriate committees, or, it may be, that of a single member, whose attention has been particularly directed to the subject. For similar reasons, but even to a greater extent, from the number and variety of subjects daily urged upon his attention, the President naturally relies much upon the investigation had and the results arrived at by the two Houses, and hence those results, in large classes of cases, constitute the basis upon which his approval rests. The President's responsibility is to the whole people of the United States, as that of a Senator is to the people of a particular State, that of a Representative to the people of a State or district; and it may be safely assumed that he will not resort to the clearly defined and limited power of arresting legislation and calling for reconsideration of any measure except in obedience to requirements of duty. When, however, he entertains a decisive and fixed conclusion, not merely of the unconstitutionality, but of the impropriety, or injustice in other respects, of any measure, if he declare that he approves it he is false to his oath, and he deliberately disregards his constitutional obligations.

I cheerfully recognize the weight of authority which attaches to the action of a majority of the two Houses. But in this case, as in some others, the framers of our Constitution, for wise considerations of public good, provided that nothing less than a two-thirds vote of one or both of the Houses of Congress shall become effective to bind the coordinate departments of the Government, the people, and the several States. If there be anything of seeming invidiousness in the official right thus conferred on the President, it is in appearance only, for the same right of approving or disapproving a bill, according to each one's own judgment, is conferred on every member of the Senate and of the House of Representatives.

It is apparent, therefore, that the circumstances must be extraordinary which would induce the President to withhold approval from a bill involving no violation of the Constitution. The amount of the claims proposed to be discharged by the bill before me, the nature of the transactions in which those claims are alleged to have originated, the length of time during which they have occupied the attention of Congress and the country, present such an exigency. Their history renders it impossible that a President who has participated to any considerable degree in public affairs could have failed to form respecting them a decided opinion upon what he would deem satisfactory grounds. Nevertheless, instead of resting on former opinions, it has seemed to me proper to review and more carefully examine the whole subject, so as satisfactorily to determine the nature and extent of my obligations in the premises.

I feel called upon at the threshold to notice an assertion, often repeated, that the refusal of the United States to satisfy these claims in the manner provided by the present bill rests as a stain on the justice of our country. If it be so, the imputation on the public honor is aggravated by the consideration that the claims are coeval with the present century, and it has been a persistent wrong during that whole period of time. The allegation is that private property has been taken for public use without just compensation, in violation of express provision of the Constitution, and that reparation has been withheld and justice denied until the injured parties have for the most part descended to the grave. But it is not to be forgotten or overlooked that those who represented the people in different capacities at the time when the alleged obligations were incurred, and to whom the charge of injustice attaches in the first instance, have also passed away and borne with them the special information which controlled their decision and, it may be well presumed, constituted the justification of their acts.

If, however, the charge in question be well founded, although its admission would inscribe on our history a page which we might desire most of all to obliterate, and although, if true, it must painfully disturb our confidence in the justice and the high sense of moral and political responsibility of those whose memories we have been taught to cherish with so much reverence and respect, still we have only one course of action left to us, and that is to make the most prompt and ample reparation in our power and consign the wrong as far as may be to forgetfulness.

But no such heavy sentence of condemnation should be lightly passed upon the sagacious and patriotic men who participated in the transactions out of which these claims are supposed to have arisen, and who, from their ample means of knowledge of the general subject in its minute details and from their official position, are peculiarly responsible for whatever there is of wrong or injustice in the decisions of the Government.

Their justification consists in that which constitutes the objection to the present bill, namely, the absence of any indebtedness on the part of the United States. The charge of denial of justice in this case, and consequent stain upon our national character, has not yet been indorsed by the American people. But if it were otherwise, this bill, so far from relieving the past, would only stamp on the present a more deep and indelible stigma. It admits the justice of the claims, concedes that payment has been wrongfully withheld for fifty years, and then proposes not to pay them, but to compound with the public creditors by providing that, whether the claims shall be presented or not, whether the sum appropriated shall pay much or little of what shall be found due, the law itself shall constitute a perpetual bar to all future demands. This is not, in my judgment, the way to atone for wrongs if they exist, nor to meet subsisting obligations.

If new facts, not known or not accessible during the Administration of Mr. Jefferson, Mr. Madison, or Mr. Monroe, had since been brought to light, or new sources of information discovered, this would greatly relieve the subject of embarrassment. But nothing of this nature has occurred.

That those eminent statesmen had the best means of arriving at a correct conclusion no one will deny. That they never recognized the alleged obligation on the part of the Government is shown by the history of their respective Administrations. Indeed, it stands not as a matter of controlling authority, but as a fact of history, that these claims have never since our existence as a nation been deemed by any President worthy of recommendation to Congress.

Claims to payment can rest only on the plea of indebtedness on the part of the Government. This requires that it should be shown that the United States have incurred liability to the claimants, either by such acts as deprived them of their property or by having actually taken it for public use without making just compensation for it.

The first branch of the proposition--that on which an equitable claim to be indemnified by the United States for losses sustained might rest--requires at least a cursory examination of the history of the transactions on which the claims depend. The first link which in the chain of events arrests attention is the treaties of alliance and of amity and commerce between the United States and France negotiated in 1778. By those treaties peculiar privileges were secured to the armed vessels of each of the contracting parties in the ports of the other, the freedom of trade was greatly enlarged, and mutual obligations were incurred by each to guarantee to the other their territorial possessions in America.

In 1792-93, when war broke out between France and Great Britain, the former claimed privileges in American ports which our Government did not admit as deducible from the treaties of 1778, and which it was held were in conflict with obligations to the other belligerent powers. The liberal principle of one of the treaties referred to--that free ships make free goods, and that subsistence and supplies were not contraband of war unless destined to a blockaded port--was found, in a commercial view, to operate disadvantageously to France as compared with her enemy, Great Britain, the latter asserting, under the law of nations, the right to capture as contraband supplies when bound for an enemy's port.

Induced mainly, it is believed, by these considerations, the Government of France decreed on the 9th of May, 1793, the first year of the war, that "the French people are no longer permitted to fulfill toward the neutral powers in general the vows they have so often manifested, and which they constantly make for the full and entire liberty of commerce and navigation," and, as a counter measure to the course of Great Britain, authorized the seizure of neutral vessels bound to an enemy's port in like manner as that was done by her great maritime rival. This decree was made to act retrospectively, and to continue until the enemies of France should desist from depredations on the neutral vessels bound to the ports of France. Then followed the embargo, by which our vessels were detained in Bordeaux; the seizure of British goods on board of our ships, and of the property of American citizens under the pretense that it belonged to English subjects, and the imprisonment of American citizens captured on the high seas.

Against these infractions of existing treaties and violations of our rights as a neutral power we complained and remonstrated. For the property of our injured citizens we demanded that due compensation should be made, and from 1793 to 1797 used every means, ordinary and extraordinary, to obtain redress by negotiation. In the last-mentioned year these efforts were met by a refusal to receive a minister sent by our Government with special instructions to represent the amicable disposition of the Government and people of the United States and their desire to remove jealousies and to restore confidence by showing that the complaints against them were groundless. Failing in this, another attempt to adjust all differences between the two Republics was made in the form of an extraordinary mission, composed of three distinguished citizens, but the refusal to receive was offensively repeated, and thus terminated this last effort to preserve peace and restore kind relations with our early friend and ally, to whom a debt of gratitude was due which the American people have never been willing to depreciate or to forget. Years of negotiation had not only failed to secure indemnity for our citizens and exemption from further depredation, but these long-continued efforts had brought upon the Government the suspension of diplomatic intercourse with France and such indignities as to induce President Adams, in his message of May 16, 1797, to Congress, convened in special session, to present it as the particular matter for their consideration and to speak of it in terms of the highest indignation. Thenceforward the action of our Government assumed a character which clearly indicates that hope was no longer entertained from the amicable feeling or justice of the Government of France, and hence the subsequent measures were those of force.

On the 28th of May, 1798, an act was passed for the employment of the Navy of the United States against "armed vessels of the Republic of France," and authorized their capture if "found hovering on the coast of the United States for the purpose of committing depredations on the vessels belonging to the citizens thereof;" on the 18th of June, 1798, an act was passed prohibiting commercial intercourse with France under the penalty of the forfeiture of the vessels so employed; on the 25th of June, the same year, an act to arm the merchant marine to oppose searches, capture aggressors, and recapture American vessels taken by the French; on the 28th of June, same year, an act for the condemnation and sale of French vessels captured by authority of the act of 28th of May preceding; on the 27th of July, same year, an act abrogating the treaties and the convention which had been concluded between the United States and France, and declaring "that the same shall not henceforth be regarded as legally obligatory on the Government or citizens of the United States;" on the 9th of the same month an act was passed which enlarged the limits of the hostilities then existing by authorizing our public vessels to capture armed vessels of France wherever found upon the high seas, and conferred power on the President to issue commissions to private armed vessels to engage in like service.

These acts, though short of a declaration of war, which would put ail the citizens of each country in hostility with those of the other, were, nevertheless, actual war, partial in its application, maritime in its character, but which required the expenditure of much of our public treasure and much of the blood of our patriotic citizens, who, in vessels but little suited to the purposes of war, went forth to battle on the high seas for the rights and security of their fellow-citizens and to repel indignities offered to the national honor.

It is not, then, because of any failure to use all available means, diplomatic and military, to obtain reparation that liability for private claims can have been incurred by the United States, and if there is any pretense for such liability it must flow from the action, not from the neglect, of the United States. The first complaint on the part of France was against the proclamation of President Washington of April 22, 1793. At that early period in the war which involved Austria, Prussia, Sardinia, the United Netherlands, and Great Britain on the one part and France on the other, the great and wise man who was the Chief Executive, as he was and had been the guardian of our then infant Republic, proclaimed that "the duty and interest of the United States require that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent powers." This attitude of neutrality, it was pretended, was in disregard of the obligations of alliance between the United States and France. And this, together with the often-renewed complaint that the stipulations of the treaties of 1778 had not been observed and executed by the United States, formed the pretext for the series of outrages upon our Government and its citizens which finally drove us to seek redress and safety by an appeal to force. The treaties of 1778, so long the subject of French complaints, are now understood to be the foundation upon which are laid these claims of indemnity from the United States for spoliations committed by the French prior to 1800. The act of our Government which abrogated not only the treaties of 1778, but also the subsequent consular convention of 1788, has already been referred to, and it may be well here to inquire what the course of France was in relation thereto. By the decrees of 9th of May, 1793, 7th of July, 1796, and 2d of March, 1797, the stipulations which were then and subsequently most important to the United States were rendered wholly inoperative. The highly injurious effects which these decrees are known to have produced show how vital were the provisions of treaty which they violated, and make manifest the incontrovertible right of the United States to declare, as the consequence of these acts of the other contracting party, the treaties at an end.

The next step in this inquiry is whether the act declaring the treaties null and void was ever repealed, or whether by any other means the treaties were ever revived so as to be either the subject or the source of national obligation. The war which has been described was terminated by the treaty of Paris of 1800, and to that instrument it is necessary to turn to find how much of preexisting obligations between the two Governments outlived the hostilities in which they had been engaged. By the second article of the treaty of 1800 it was declared that the ministers plenipotentiary of the two parties not being able to agree respecting the treaties of alliance, amity, and commerce of 1778 and the convention of 1788, nor upon the indemnities mutually due or claimed, the parties will negotiate further on these subjects at a convenient time; and until they shall have agreed upon these points the said treaties and convention shall have no operation.

When the treaty was submitted to the Senate of the United States, the second article was disagreed to and the treaty amended by striking it out and inserting a provision that the convention then made should continue in force eight years from the date of ratification, which convention, thus amended, was accepted by the First Consul of France, with the addition of a note explanatory of his construction of the convention, to the effect that by the retrenchment of the second article the two States renounce the respective pretensions which were the object of the said article.

It will be perceived by the language of the second article, as originally framed by the negotiators, that they had found themselves unable to adjust the controversies on which years of diplomacy and of hostilities had been expended, and that they were at last compelled to postpone the discussion of those questions to that most indefinite period, a "convenient time." All, then, of these subjects which was revived by the convention was the right to renew, when it should be convenient to the parties, a discussion which had already exhausted negotiation, involved the two countries in a maritime war, and on which the parties had approached no nearer to concurrence than they were when the controversy began.

The obligations of the treaties of 1778 and the convention of 1788 were mutual, and estimated to be equal. But however onerous they may have been to the United States, they had been abrogated, and were not revived by the convention of 1800, but expressly spoken of as suspended until an event which could only occur by the pleasure of the United States. It seems clear, then, that the United States were relieved of no obligation to France by the retrenchment of the second article of the convention, and if thereby France was relieved of any valid claims against her the United States received no consideration in return, and that if private property was taken by the United States from their own citizens it was not for public use. But it is here proper to inquire whether the United States did relieve France from valid claims against her on the part of citizens of the United States, and did thus deprive them of their property.