Front Page Titles (by Subject) GALLATIN TO EDWARD EVERETT. - The Writings of Albert Gallatin, vol. 2
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GALLATIN TO EDWARD EVERETT. - Albert Gallatin, The Writings of Albert Gallatin, vol. 2 
The Writings of Albert Gallatin, ed. Henry Adams (Philadelphia: J.B. Lippincott, 1879). 3 vols.
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GALLATIN TO EDWARD EVERETT.
New York, January, 1835.
Your two last queries involve the question whether, in case the French Chambers should again refuse to make provision for carrying the treaty into effect, resort should be had to war or to commercial restrictions. Much will depend on the motives assigned for such measure and all the circumstances under which it may take place. It is obvious that the two countries will, in that event, be placed in a most difficult situation; it is equally evident that, considered merely in reference to the amount claimed, war would be a most absurd measure. The question is only whether the national honor and character require such an appeal. A full and correct knowledge of all the facts belonging to the case is necessary in order to appreciate the nature and extent of the injury for which we must seek redress. Amongst these, the opinions and feelings of France, either with respect to this question, or towards America generally, the uniform construction given to her constitutional charter by the nation and by the government, and the good faith or want of sincerity on the part of that branch of it which made the treaty, are all subjects which deserve consideration. On those several points I will cheerfully communicate the result of my observations during my long residence in France, and the conclusions which I have drawn respecting recent occurrences.
The right of the United States to demand indemnity is founded, 1st, on the intrinsic justice of the claim, which admits of no doubt; 2dly, on the treaty of compromise, by which the faith of the French nation may be presumed to have been pledged for its performance.
A refusal by the Chambers to grant the money will be at least a denial of justice; it will, moreover, be a breach of public faith if, according to the constitution of France, the legislature is bound by the treaty. And this is such an aggravation of the injury, that it is proper to inquire whether that body is justly liable to that charge, whether the offence consists in a prolonged denial of justice, or in a positive breach of public faith.
In every constitutional government the power of raising and granting money is vested in the legislature; that of making treaties, in the executive. In every such government the question may arise, whether the treaty-making power is, in every instance, paramount, and imposes on the legislature the duty of granting without examination the money necessary to pay the subsidies or indemnities promised by the treaty; or, whether the power of granting money, vested by the constitution in that body, does not necessarily imply the right of examining and deciding each case according to its original merits.
The present Administration of the United States is of opinion that here the treaty-making power is paramount. It may thence have been too hastily inferred that that power was in France also acknowledged to be supreme, and to pledge absolutely the legislature and the nation. There may be in the Constitution of the United States some clauses not to be found in that of France, which sustain the construction adopted by our Executive magistrate. But even in the United States the question has been considered, at least, as doubtful.
Mr. Madison’s resolution of the year 1796, which asserts the abstract right of the House of Representatives, was adopted by a majority of the House, and remains, unrepealed, of record on its journal. And it cannot be denied that, during the sixteen years of the Administration of Presidents Jefferson and Madison, that was the avowed construction of the Constitution by the government of the United States. It is not necessary here to inquire whether that construction is correct. I may not be an impartial judge of that question, and only mean to show that, even here, it is one on which opinions have been divided.
In framing or construing her modern monarchical institutions, France has naturally drawn her views much more from British than from American precedents. I am much mistaken if the theory and practice of Great Britain are not in accordance with the principles asserted in Mr. Madison’s resolution. Thus, it has ever been held there that the power of withholding supplies was the constitutional check on that of making war, which belongs to the King. If it has become an admitted principle that there is an absolute necessity that the Ministry should have a majority in Parliament, it is solely because, ever since the revolution of 1688, the absolute and uncontrolled power of that body on grants of money has never been called in question. That principle and the substitution of influence for the prerogative claimed by the Stuart dynasty have, indeed, with respect to supplies, converted the power of refusal into a preventive remedy. But the power remains, and no distinction has been attempted between the power and the right. A treaty of commerce cannot of itself, in Great Britain, alter or repeal a single provision of an Act of Parliament. The most scrupulous care has been taken that the slightest alteration resulting from such treaty should always be sanctioned by a statute. These abound with such provisions; and in one memorable instance at least,—the commercial treaty of Utrecht with France,—the refusal of the House of Commons to pass the necessary laws prevented its execution without this having been complained of by the other party as a breach of public faith, and without it having been considered, by any English historian or publicist that I know of, as such, or as an usurpation on the part of the House of Commons. Much praise has, on the contrary, been bestowed by some authors on that body for its conduct on that occasion. (See Anderson’s History of Commerce, year 1812-1815. I quote from memory.)
The truth is, that in questions of this nature which may be susceptible of doubt, although there may not be any essential difference in the manner or terms in which certain specific powers are distributed and defined, the practical construction will not be the same in all countries, and will principally depend on the relative situation in which the legislative and executive branches of the government are, upon the whole, placed by the constitution. The powers vested in the popular branch will receive a more extensive construction and be exercised more freely in proportion as there is more danger from an uncontrolled exercise of the powers belonging to the executive. In the United States, the treaty-making power is placed in a chief magistrate, elected by the people for a short period of time. And the consent of two-thirds of one of the branches of the Legislature, necessary for the ratification of any treaty, may, in the opinion of many, be presumed to afford as good, if not a better guarantee than a bare majority of both Houses, against any possible abuse of power by the President, whilst it avoids the inconveniences arising from the opposite construction.1
In France, constitutional law commences with the restoration; for till then the will of Bonaparte was law. And under what auspices, and on what conditions, did it commence? According to a charter granted by the King, the power of making treaties was left exclusively, and without the co-operation of any other political body, in the hands of a monarch who claimed the crown by the divine right of legitimacy, who was placed on the throne, contrary to the will of the people, by the superior force of foreign conquerors, whose first object was to preserve his precarious power, and whose interest in forming treaties with his protectors might be in direct opposition to that of the nation. By the same charter the King reserved to himself the power, amongst others, of originating all laws, and, under the name of ordinances, to enact (independent of the pretence thereby afforded for a direct violation of the charter) by his sole authority all those administrative measures and regulations which occupy so large space in the legislation of Great Britain and of the United States.
Exemption from the conscription, liberty of the press, personal liberty, security for the purchasers of confiscated property, some amelioration in the law of election, were indeed promised by the charter. But what was the guarantee for the performance of those or any other concession contained in it? What substantial constitutional power was given or left to any political body in the state which might, in any shape whatever, secure those granted rights and protect them against the will and power of the King? One, and one only, that of raising and granting money; a power also which had, from the foundation of the monarchy, ever been claimed by the nation, and the exercise of which by the King had ever been viewed as an usurpation, and was the proximate cause of the revolution of 1789.
It is not, therefore, at all astonishing that the French Legislative Chambers should have clung to the free and in every respect uncontrolled exercise of that power as to their only anchor of safety; and that in their discussions they should make no distinction between projects of law granting money, whether their object be to provide for ordinary expenditures, or to enable the King to carry into effect a treaty of subsidy or indemnity. To this right or pretension, whether willing or unwilling, Louis XVIII. was too wise to make any opposition. The first appropriation arising from treaties for which he was obliged to apply was, in 1819, for 700 millions of francs, substituted, by the convention of Aix-la-Chapelle, for the unliquidated indemnities promised by the treaties of 1815. And he well knew that in order to obtain it peaceably he must let it be the free act of the Chambers; free in reference to his own powers; for, in fact, it was both with him and them a compulsory measure.
The reigning monarch may, indeed, be less obnoxious than those of the elder branch of his dynasty. There might be less danger, under the amended charter, in allowing him a greater latitude in the exercise of the power of making treaties. But he cannot claim himself any greater than was exercised by his immediate predecessors. It would have been an act of madness on his part to have addressed the Chambers in the tone used by the President or by Mr. Livingston, and to have told them that they and the French nation were bound by the obligations he had contracted, and would be guilty of a breach of public faith if they did not fulfil his engagements. The unanimous cry would have arisen in the Chambers and been re-echoed by the nation, “Are we, then, like the Parliament of old, only a court of record for registering the edicts of the King?”
But, whatever causes may be assigned for it, the fact is indubitable that the absolute right as well as power of the Chambers to enter into the merits of the case, and to decide on the propriety of granting or refusing an appropriation necessary to carry a treaty into effect, has never been called in question since the restoration; and that, if a payment of money is required, the national faith is not considered as pledged until the sanction of the Chambers has been obtained. I never heard the opposite doctrine asserted in France. I never met any Minister of the King who held a contrary opinion, and who did not, when conversing on our claims, consider the expected opposition of the legislature as the great but legitimate obstacle to an arrangement.
I need not, however, appeal to my own knowledge of the fact. It is proved beyond contradiction by the whole tenor of the correspondence, either at Paris or at Washington, and by that of the debates of the Chamber of Deputies. Mr. Rives was repeatedly forewarned of it; Mr. Serurier confirms it. The Duke of Broglie, judging also by analogy, has no doubt that the same doctrine prevails at Washington in reference to our own Constitution. In the Chamber, Dupin the elder, the President and first constitutional lawyer of France, takes care to remind the Chamber that its right is entire, absolute. All the King’s Ministers present silently acquiesce in the doctrine or acknowledge it. Berryer, an ultra-royalist, who openly declared that he acknowledged no king de jure but Henry V., assimilates the power of the Chamber, in relation to treaties, to that of the Senate of the United States. Quotations, indeed, are unnecessary. No unprejudiced man of candor, whose mind is not warped by an erroneous analogy, can read those debates without being fully satisfied that all the speakers consider the subject as entirely open, themselves as not in the slightest degree bound by the treaty, and the public faith as not pledged until the sanction of the Chambers has been obtained. I am not aware that, amongst all the numerous French newspapers of various colors, a single paragraph has appeared breathing a different spirit, and maintaining that, whether the sum required was justly due or not, the engagement contracted by the treaty made it incumbent on the Chambers to provide the amount.
I cannot perceive any interest we have in trying to make the case appear worse than it really is. It is surely sufficiently offensive as a national denial of justice, and this defended, at least in part, as has been done by Mr. Bignon, by arguments worthy of the school to which he belongs, and which add insult to the injury. Nor, whilst I assert what the constitution of France actually is, do I mean to justify the French Chambers, even independent of the intrinsic justice of our claim, for overlooking the consequences which, under any form of government, must flow from the rejection of a treaty ratified according to the usual forms, and for their habitual interference in discussing the merits of every treaty, instead of reserving the exercise of their constitutional power for cases of sufficient importance to require it.1
I had written so far when the report of the committee of the Senate reached this place. That dignified state paper supersedes almost entirely the necessity of justifying the good faith and sincerity of that branch of the French government which made the treaty. It must, in that respect, satisfy every person who is compos mentis; and I will only add one observation, which to me, from the beginning, was conclusive.
Had it been the intention of Louis Philippe to get rid of an annoying claim without encountering the opposition of the Chambers, had he not been sincerely disposed to make a prompt, final, and equitable arrangement, instead of contracting for the payment of a specific sum of money he had nothing more to do than to insist on the proposition pending between Mr. Rives and Prince Polignac for submitting the whole subject to a mixed commission. You know that these modern commissions are all on the same model as that which sat at Washington for settling the indemnity due by Great Britain to citizens of the United States on account of the slaves carried away in violation of the Treaty of Ghent,—two commissioners and two arbiters, one of each denomination appointed by each party, and who are sure never to agree. I do not know of a single one that ever came to a final decision, or did not end in a compromise. One of this character, on such subject (particularly if the question respecting the contested article of the Louisiana convention had been connected with it), would not have terminated its labors in ten years, and then have left the affair, on all contested points, as unsettled as when the commission was first instituted.
But although the King is entirely free of any charge impeaching his sincerity and good faith, I do believe that, if he had been fully apprised of the public sentiment on that subject, he would not have signed the treaty. He is a man of great firmness, but very cautious, and has no wish to increase more than is absolutely necessary his foreign and domestic difficulties. The first proceedings in the affair appear also to me to have been unwise. Instead of referring the question of the amount of indemnities justly due, to his own Ministers or to a commission taken from amongst the Counsellors of State, he chose to submit the subject to a selection of members of the Chamber of Deputies. Having done this, he ought either to have declared his inability to allow more than the sum reported by the majority, or have obtained an adequate appropriation before he signed the treaty. I have no doubt that the report of that commission proved fatal to the project of law rejected by a majority of eight votes; that is to say, that it was used as a powerful weapon by the opposition, and produced an effect on a number of members sufficient to turn the scale. Some other objections, applying also to details, had the same tendency. The French government has since taken uncommon pains to collect all the documents necessary to repel all those of that character; and there was, I think, a fair prospect, before the President’s message, that the necessary appropriation would have been voted by the Chambers during their present session. A strong though unsuccessful opposition must have been expected, and one that lies even deeper than appears on the face of the debates.
There was during the whole period of my residence in France (1816-1823) an almost universal opposition to the payment of our claims, embracing all the parties and the great mass of the nation. The Bonapartists, or friends of the Imperial regimen, at that time a majority of the people, justified every act of the Emperor, and strenuously opposed the reversal of any of his decisions. Every payment for indemnities is a reproach to them, is viewed as the fruit of the Imperial policy, and tends to sink them in the public opinion.1
The ultra-royalists openly maintained the doctrine that the Bourbons were not liable for the misdeeds of the usurper; and although they dare not now avow that opinion, the disavowal is only on their lips; they seek for some other pretence, and generally vote in conformity with their internal conviction.
And both parties, together with the Republicans, united in a feeling common to the whole nation, that of considering the payment of every species of indemnity as an extortion imposed upon them by superior force and conquest.
The only exceptions consisted of La Fayette and half a dozen of his most intimate and personal friends, of some intelligent merchants, of a few other men of elevated feelings (chiefly doctrinaires and moderate royalists), and finally of the King’s Ministers, who, compelled by their situation to take a more comprehensive view of the subject, saw the necessity of settling it, and would have been generally disposed to make a compromise, provided it could be done without involving them in a contention with the Chambers.
Time has undoubtedly lessened that general opposition and smoothed the difficulties arising from that source. Yet the most prominent orators of the opposition are still the most talented and influential leaders of the several parties: Bignon, the very personification of the Imperial regimen; Berryer, the organ of the Carlists or ultra-royalists; Manguin, the true representative of the radical Republican party.
But the payment of our indemnities is at this time so clearly a spontaneous act on the part of the French government, the amount on which the question turned so insignificant, the importance of settling finally our claims so obvious, that I cannot think that those intelligent men would have thought it worth while to make an appeal to public opinion, and to unite in such firm and formidable opposition on this occasion, for the sake only of preventing that payment. It cannot be doubted that, however different the ultimate views of the three great parties to which I have alluded may be, the immediate object of all is to overthrow the present dynasty; and to that cause, more than to any other, I am inclined to assign the resistance of the Chamber. The difficulties which the government of France has to surmount in this instance are, at all events, great and obvious. And this consideration ought to have had, and still to have, great weight in the final decision of both the Administration and Congress.
I would not wish to be understood as intimating that the members of the opposition, whilst trying to increase the embarrassments of the King, contemplated hostilities between the United States and France. I believe that no one there, and very few, if any, in America, had dreamed, before the tenor of the President’s message was known, that the refusal of the Chambers was likely to produce that effect. Although all the facts belonging to the case, save only such as might tend rather to mitigate than to inflame the public feeling, were as well known six months ago as when Congress met, yet the necessity or probability of a war arising out of that state of things had been nowhere suggested. If any such feeling now exists in any part of the country, it is purely artificial, and had its source in the usual acquiescence in General Jackson’s opinions. In France, all the allusions, all the apprehensions, whether of public men or of private individuals, were confined to the prospect of commercial restrictions.
What effect the President’s message may produce in France we can only conjecture. You must, of course, act, so far as it is necessary for you to act, on the supposition that it will, at least, cause a suspension of any further proceedings on the treaty; and all your preparatory movements should be with a view to that event. From all I know of France, and from the situation of parties by the last advices, I think that result extremely probable. But the French government will do all in its power to avoid an open rupture; and, notwithstanding the great susceptibility of that nation, I think that a war with the United States would be very unpopular.
If the admission of our claim was universally opposed, I may affirm that the opposition was confined to that object, that it must be ascribed to the causes already assigned for it, and that it did not arise from any hostile disposition to the United States. On the contrary, an universal most friendly feeling for America prevails in France such as does not exist towards any other nation, pervading the whole country, embracing all parties, without excepting those most opposed to our claims, extending from the Crown to the peasant. The single fact, and it was in every respect a most fortunate event, that the United States should have continued to wage war, single-handed, against Great Britain, after France had been subjugated, whilst it raised their character in Europe to its proper standard, gave them in the eyes of the French people the appearance of solitary and faithful allies fighting for the same cause. Even the royal family participated as Frenchmen in the general feeling.1
The war of the independence was the only great event, during the preceding seventy years, from which that unfortunate family had derived any honor or glory. Ascribing, undoubtedly, much more than its just and legitimate share to the assistance received from France, they considered the great republic as almost the work of their hands, and viewed with complacence and interest its welfare and growing prosperity. This was not confined to expressions of good will and ordinary acts of courtesy towards citizens of the United States: it was manifested by the general tenor of the acts of government.
With a perfect knowledge of the superiority of our navigation, and notwithstanding the representations of their shipping interest, they yielded, though with reluctance, the question concerning the equality and ultimate repeal of discriminating duties,—a measure which has given to America almost the whole of the maritime commerce between the two countries, and rendered nugatory for the time the Louisiana privilege. They lent their good offices and interfered with efficacy in our negotiations with Spain for the acquisition of Florida. Mr. Hyde de Neuville was specially instructed to that effect; and they continued afterwards their active exertions in Spain in order to induce Ferdinand to ratify the treaty. (It was on that occasion that the Duchess d’Angoulême made the speech above stated.) I may say that in doing this the King’s government was not more induced by the belief that it was the interest of Spain to conciliate the United States than by a wish to make some compensation to America for the disappointment experienced in the indefinite postponement of our claim for indemnities.
You may say that there is an apparent contradiction between what I state of the light in which we were viewed by the French people, and their confounding the indemnities we claim with those which were clearly extorted from them. I admit it; but the facts, as I have stated them, are in both respects, nevertheless, strictly true. The indemnities paid to the subjects of the allies, though of a different nature, were, with the exception of those allowed to British subjects, as much founded in justice as those claimed by the Americans.1 Without certainly meaning to apply the observation to individuals acting in their individual capacity, it may be that there is more of generosity than of justice in the French character as a nation. I verily believe that they would at all times rather give than pay twenty millions. Is this peculiar to the French government?
It cannot, upon the whole, be denied that, setting aside this unfortunate question, the United States and France are placed in the most enviable relative situation. No question of boundaries or territory; no maritime, commercial, or manufacturing rivalship; an extensive, growing, and mutually advantageous commercial intercourse; on all great political questions a community of interest and of opinion; reciprocal friendly feelings; and yet no entangling alliance, nor anything in their relations with each other that can affect those which either of them entertains with other nations. A war between two countries thus situated would indeed be a most lamentable event.
You ask, if it should unfortunately take place, my opinion of its character and effect. You certainly are as well informed in that respect as I can be. It will be confined to naval operations and afford to our navy new opportunities to distinguish itself. We cannot derive any other advantage from it. Our cruisers will be more active and skilful, but our commerce is much more extensive and more exposed. The captures by either party will not remunerate him for his losses. Which of the two will be the greatest loser I will not pretend to say. The commerce of both will be impaired to a degree which no one can calculate. We employ 260 vessels, measuring 100,000 tons, in the fisheries of the Pacific. I should think that, during the war, not a single vessel would be fitted out for that purpose. The great mass of our commerce is with Europe, in the vicinity and within the reach of France, the ports of which we cannot blockade. The danger to which it would be exposed from her cruisers must so increase the rate of insurance as to throw the greater part of it in the hands of neutrals. I presume that that of France with foreign and principally distant countries will share the same fate. The commercial intercourse between the two countries will be greatly lessened, if not nearly annihilated; and what may remain must necessarily be indirect. The unavoidable consequence of that state of things will be a great reduction in the price or quantity (or both) of all our agricultural and exportable products. The manufacturing industry of France may, perhaps, be affected still more seriously than our agriculture.
What is most certain is that both countries will be great sufferers, that the progressive prosperity of both will be retarded, and that their joint folly will enrich other nations at their joint expense.
In a political point of view, every loss, by either party, of vessels and seamen will increase the relative maritime power, not of the other party, but of Great Britain, in whose hands also the greater part of the commerce lost by both will fall. We may also have the chance of soon finding ourselves if not in alliance yet co-operating with the Holy Alliance, and indirectly assisting the cause of despotism against that of freedom. I am under strong apprehensions that the moral effect of this war will be most unfavorable, not only as regards our foreign relations, but to our own internal concerns, to our institutions, and to our Union. Peace must at last be made, on what conditions no one can predict; although it is most certain that neither party will be able to dictate its terms. Many years must afterwards elapse before the same friendly relations as now exist between the two nations can be restored.
As respects your other query, I must say that I am very averse to restrictive commercial measures for any purpose whatever. Experience must have taught us, beginning with the non-importation restrictions and agreement which preceded the war of independence, and ending with the various non-intercourse laws which were enacted between December, 1807, and June, 1812, how inefficient measures of this description generally are for the purpose of forcing another country to alter its policy. It is true that they may occasionally offer a pretence for it when that country already wishes to do it and only wants a pretence. Had the official notice of the repeal of the Milan and Berlin decrees (for which repeal some one law of ours had afforded a pretence) reached England two months earlier, it may be that a timely repeal of the orders in council would have prevented the war. Sometimes also, if restrictions can be applied immediately to the object in dispute (a retaliating tonnage duty), so as to operate as direct reprisal, they may prove effective. In the present instance they cannot be so applied, and I would doubt their efficacy towards obtaining a prompt execution of the treaty. It would have been much preferable to have been fully aware of the great and intrinsic difficulties which stood between the signing of the treaty and its being carried into effect, and instead of increasing these to have used some further forbearance, and, without recurring to any coercive or restrictive measures, to have suffered the King of the French to manage the affair in his own way with the Chambers. Had that course been pursued, there is no doubt that he would have continued to make every exertion for obtaining their assent; and I am confident that the treaty must infallibly have been ultimately ratified. The fundamental error, on the part of our government, consists in not having been sensible that, in the present situation of France, the real power is not with the King, but with the popular branch.
But the blow has been struck; and it is not at all certain that the vote of the Senate and that of the committee of the House will counteract the effect of the President’s message. The situation in which Congress was placed by it compelled the committee of the Senate to allude to consequences which, when practicable, ought to be understood without ever being expressed. The public sentiment of your late chairman, “We must have justice, or we will have war,” is the threat direct, and will reach France together with other similar declarations. It cannot be expected that the communications or explanations of the only official organ of the United States with foreign nations will be very conciliatory. It may be that it will be morally out of the power of the King to continue his exertions; and, hoping still for the best, a suspension of the proceedings on the treaty may be expected.
It is in that case, and as a means of preventing actual war, that a resort to restrictive measures, if accepted as a substitute, will be proper, if not necessary; and I think that, with a view to that contingency, every effort should be made to prepare and conciliate public opinion to that course. Those measures are, in fact, better calculated than war to produce a final execution of the treaty; and they will, without affecting us essentially, if devised with skill, inflict on France a well-deserved chastisement and an injury nearly as serious as war itself. The debates of the Chamber of Deputies will furnish some valuable hints; and, without entering at this time into details, I will only observe that, in the present state of France, silk and generally the Lyons and Paris manufactures are the most sensitive branches of her industry.
The commercial convention may stand in the way of restrictions applying exclusively to France. The United States have the right to say that the non-fulfilment of the late treaty on her part absolves them from any obligation growing out of a former compact. I would prefer to annul it by giving, according to its tenor, six months’ notice.
War would abrogate the late treaty. If any measures short of war are adopted, there can be but one opinion on one point,—the United States must adhere to the treaty as it is, and insist on its execution. The abandonment of the right, or privilege, reserved by the Louisiana convention in favor of French vessels, is to the United States a most important condition; the more so as, being indisputably a condition annexed to the cession, it would not be abrogated by war. Construe it as you please, it is a most inconvenient perpetual privilege, which interferes with the absolute right of sovereignty, may at any time be used as a weapon to annoy, and would afford a perpetual subject of litigation. Care should be taken, in laying restrictions, not to impair by any act of ours that essential condition of the late treaty which abandons the privilege for an equivalent advantageous to France and not inconvenient to the United States.
The main question still recurs, Does a proper sense of what is due to national honor and character require a resort to arms, to the exclusion of milder means? A correct decision cannot be made until the final determination of France, the motives for it, and all the circumstances accompanying it, shall be known. At present only general views of the subject can be presented.
The general position assumed by the President, and apparently sustained by Judge Wayne and others, is, that whenever a nation has a claim clearly founded in justice, as that in question undoubtedly is, and justice is denied, resort must ultimately be had to war for redress of the injury sustained. This, as an abstract proposition, is wholly untenable, supported neither by the practice of nations nor by common sense. The denial of justice gives to the offending nation the right of resorting to arms, and such a war is just so far as relates to the offending party. But to assert that a nation must in such case, without attending either to the magnitude or nature of the injury, and without regard either to its own immediate interest or to political considerations of a higher order affecting perhaps its foreign and domestic concerns, inflict upon itself the calamities of war, under the penalty of incurring disgrace, is a doctrine which, if generally adopted, would keep the world in perpetual warfare, and sink the civilized nations of Christendom to a level with the savage tribes of our forests.
What a nation never can submit to without disgrace is insult, aggressions characterized by violence and the use of force and not atoned for, repeated and continued violations of the law of nations, though not accompanied by actual force and effected under color of law. It may and has the right, without any degradation whatever, when the injury is neither of that character nor of an extraordinary importance, to select for redress its own time and the means which it may deem best adapted to the occasion and most consistent with its own interest.
In the present case, the outrageous acts in which the claim originated would not only have justified war at the time, but it has been doubted whether the forbearance used then was entirely free of reproach. France is responsible for France, the present generation for that which is past, the existing government for that which preceded it. But that responsibility extends only to the payment of damages for former wrongs; of the wrongs themselves the present government is entirely innocent. The injury now done is the refusal to pay a most just debt, now liquidated by the Executive, and which he has by a treaty promised to pay. That refusal will render legitimate any means America may think proper to adopt for redress, without excepting war itself. If not accompanied by insult or such aggravating circumstances as leave no other resource, the refusal does not impose upon her the necessity of resorting to an appeal to arms.
I really do not know of any instance, at least in modern times, of a nation resorting to war for a cause of that character, or considering it disgraceful to select, in analogous cases, her own time and remedy.
About the year 1745, Frederic of Prussia, then a neutral, on a frivolous pretence—a claim on his part that neutral vessels should not, when captured for a presumed violation of fair neutrality and of belligerent rights, be tried, according to universal usage, by the courts of the belligerents1 —sequestered and suspended the payment of interest on a loan formerly made by British subjects to Austria, for which the revenue of Silesia was pledged, and the payment of which by him, as a charge on that province, was an express condition of the treaty by which Austria had ceded it to him. Great Britain, which is not in the habit of tamely submitting to injuries, did not deem this act a sufficient cause for any hostile measures or reprisals. She only protested and remonstrated, and patiently waited the proper opportunity of obtaining redress. This was afforded ten years afterwards by the approaching storm which threatened the existence of Prussia. A treaty of subsidy was concluded with her on the eve of the Seven Years’ War; and, as a preliminary condition, Frederic was made to pay the arrears, interest, and principal of the Silesia loan.
On reviewing the course of proceedings subsequent to the ratification of the treaty, I can find but one real cause for complaint. No efficient steps were taken by the French government, during the year 1832, for obtaining the requisite appropriation. If that delay was owing, as there is every reason to believe it was, to the lessened popularity of the King and to a much greater opposition to our claim being found to exist in the Chambers than had been anticipated, both which required great circumspection on his part, he ought immediately, and without waiting for the day of payment, to have communicated the fact to the government of the United States. It is the first duty of a debtor, if unforeseen circumstances prevent the punctual fulfilment of his engagements, to give immediate notice of his situation to his creditor, and to ask a further delay. A free and candid explanation of the causes which rendered it impossible for the French government to comply with its engagement as soon as it had bound itself by the treaty to do, would in all probability have been received in the same spirit which dictated the communication. The sincerity and earnestness with which the subject has since been pressed by that government is the only apology which can be made for its conduct on that occasion.
The treaty itself, concluded and ratified in the usual form, is, however, the important fact which, converting the simple demand for the settlement of an unliquidated debt into a positive engagement, has placed the two countries in a critical situation. The greater part of this communication consists of facts and remarks connected with that subject. I have but one observation to add in relation to it.
The non-compliance with the conditions of a treaty, whether proceeding from the executive or legislative branch of government, does not alone, and when neither arising from a hostile spirit nor accompanied with insult, afford such extreme ground of complaint as to impose on the aggrieved nation the necessity of considering that act as an indignity, and of resorting to war as the only alternative for sustaining her character. The refusal of the British House of Commons to carry into effect the commercial treaty of Utrecht with France has already been alluded to. I beg leave to remind you of another instance.
By the treaty of 1794, between America and England, the United States bound themselves to pay to British subjects the amount of the British debts which had been lost by reason of laws passed by several States in contravention of the provisions of the treaty of 1783. And it was expressly provided by that of 1794 that the amount thus payable by the United States should be definitively settled by a joint commission consisting of four members, and, in case of disagreement between these, by a fifth commissioner, chosen by the four primitive members of the board.
That commission was accordingly organized, and held its sittings in Philadelphia. The lot favored the British commissioners in the choice of the fifth, who is believed to have in every instance of disagreement decided in their favor. The American commissioners contended that his decisions embraced cases not fairly embraced by the treaty. This might, in point of fact, be true; but it was a question the ultimate decision of which belonged, according to the treaty, exclusively to him, and was not at all, nor could, without defeating entirely the object of the treaty, have been, left to that of either party.
Nevertheless, in order to prevent the payment by the United States of a larger amount than what it thought to be justly due, the government of the United States chose to run the risk of not complying with the terms of the treaty. Contrary to its stipulations, the two American commissioners (Messrs. Sitgreaves and Fitzsimons) did, with the approbation of the President, withdraw themselves and refuse to attend any more the sittings of the board, thereby breaking the commission (and with it the engagement contracted by the treaty), since there could no longer be any decision by a majority of the four commissioners, nor any disagreement, nor, therefore, any question brought before the fifth for his decision.
This proceeding, which indeed appeared to me very strange at the time, was not certainly believed by our government to be one of an offensive nature. Though considered by Great Britain as an infraction of the treaty, she simply retaliated by suspending in the same manner the proceedings of the commission for the settlement of the claims arising from depredations on our commerce. Had she viewed it as an indignity offered to her, she would have resented it by means of a very different nature. So far was England from considering it in that light, that she finally consented, some years later, not to insist on that condition of a treaty duly made and ratified, and agreed, by a new convention, to accept in lieu thereof £600,000, or less than one-third part of what would have been allowed by the Philadelphia commission.
In this instance there was no extraneous impediment to the execution of the treaty. It was a voluntary act on the part of that branch of the government which had made the treaty. But I mean only to infer that there is nothing so very unprecedented, alarming, or heinous in a simple non-compliance with the terms of a treaty of indemnity, when it is not attended with offensive circumstances and is accompanied with proper and conciliatory explanations.
There is no evidence that public opinion is such at this time as to compel the representatives of the people to pursue a course so fatal to the general interest of the United States as a war with France would be. I have witnessed at the time of the publication of the X. Y. Z. correspondence, when the outrageous attack on the frigate Chesapeake took place, and on several other occasions, and I know how a spontaneous public excitement manifests itself. Though it may occasionally be carried too far, it is always, when a foreign country is concerned, a proof that some insult has been offered to the nation. The complete apathy which prevailed long after the refusal by the French Chamber to comply with the treaty was universally known, and till the President’s annual message to Congress, is a strong evidence both of the unbiased public opinion on that subject, and that there was nothing in the transaction which affected the honor and character of the nation.
But the feelings of the President are strong, and he is persuaded that both he and the country have been insulted. A suspension by France of further proceedings on the treaty on account of his message will be particularly mortifying to him, and may create a kind of personal quarrel. His popularity and influence are great; a cry may be set up that the honor of the nation requires that the President should at all events be supported. False as this notion is, party ties are most difficult to shake off; and whenever a question arises relating to our foreign concerns, men, apprehensive of being suspected of want of patriotism and foreign partiality, are often carried much beyond their own conviction of what is just and proper on the occasion. I am not acquainted with the opinions, detached of party considerations, of the Representatives of this city, which has so much at stake. But I do know that there is no excitement here, and that, if they think it right to pursue the pacific course, they will be sustained by their constituents, without distinction of party.
Even amongst those public men who look on a war with France as a public calamity, I apprehend that there are some of most patriotic, honorable, and elevated feelings, alive to all that can affect the national character, and who, well remembering the situation of the United States before the war of 1812, may be impelled more by recollections of the past than by a view of the rank which the United States now hold in the public opinion of the world.
Without entering into details familiar to all, I am ready to admit that, partly owing to an early and unfortunate submission in practice (for the right was always denied), first to British impressment and gradually to the other encroachments and violations of the law of nations by the belligerents, partly to the real difficulty of deciding against which of them war should be declared,1 partly from a too great anxiety on the part both of the people and of government to preserve peace at all events, temporary and varied expedients were for several years resorted to, which had a tendency to lower the United States in public opinion, and to impress a belief abroad that they would submit to almost any infraction of their maritime rights rather than to resort to war. I need not dwell on the total want of analogy between the two cases, and the immense difference between the outrages committed by both the belligerents at that time, outrages which had not ceased and were still of daily occurrence, and the present conduct of France.
But I do insist on the undeniable fact that the national character has been entirely redeemed by the last war, and that at this time no country is held by all foreign nations and governments in higher respect and consideration than the United States. The chivalric spirit with which, with six frigates, they commenced, the undaunted bravery, superior skill, and unexampled success with which our heroic navy sustained a maritime war against the gigantic power of Great Britain, the most fortunate course of events which left America to contend alone with that country and to make peace, without the slightest foreign aid or countenance, on equal and not dishonorable terms, and the splendid exploit with which General Jackson crowned the contest, have all contributed in producing that honorable and invaluable result. Though not numerically so, the United States are considered as the second naval power of the world. There is not the most remote danger either that the conduct of France should be viewed as an insult to the United States, or that their adopting peaceable measures should in the slightest degree affect the national character. It may with absolute certainty be relied upon that forbearance will universally be ascribed to the proper cause, “the wisdom of our public councils,” and in no quarter whatever to the want of bravery, spirit, or resources.
It is time that I should terminate this long communication, which has been several times interrupted by indisposition or pressing avocations. I do not wish for notoriety, and have no desire of appearing in print on political questions. But I have nothing to conceal, and, if you believe this letter contains any facts or remarks which may be of some use, you are at liberty to communicate its contents to any person you may think proper.
I have spoken of the relative power of the King of France and the Chamber of Deputies. A single vote of theirs, as it crowned him, would in twenty-four hours dethrone him. And our Executive writes him a lecture on the extent of his constitutional powers.
[1 ]For my own part, though I would not part with the power in the abstract, I am quite willing to waive every discussion on the subject, and that the power should lie dormant, operating at all times as a preventive; being well satisfied that it would be exercised in the most improbable case of a treaty totally subversive of existing laws (say a treaty with England abolishing our tariff on woollen manufactures), or highly injurious or disgraceful to the United States (a subsidy to Russia against Poland), being ratified by the President and Senate.
[1 ]Please to observe that, in 1796, the true ground of opposition to the treaty with England was the belief that the recognition by treaty, and pending a war between France and England, of the right of the British to capture French property on board of American vessels, whilst British property in similar situations was by our previous treaty with France protected against capture, and the acknowledgment that provisions might in any case be considered as contraband, were a breach of neutrality and pledged faith, and must lead to a rupture with France. Whether right or wrong, the subject was one of primary importance, and involving the whole foreign policy of the United States. In the present instance all the speakers in the Chamber of Deputies agree that an indemnity is due; they differ only as to the amount; and it is for the sake of a miserable sum of two millions of dollars that the Chamber refuses to carry the treaty into effect. Depend upon it, there is another motive than any of the reasons ostensibly assigned for that extraordinary vote.
[1 ]You may perceive how careful, even at this day, government itself is to maintain the principle. In arranging the indemnities under certain heads, they have rejected every class embracing actual condemnations however unlawful, hardly daring to accept the cases where the claimants could have had no notice, and the condemnations made subsequent to the repeal of the obnoxious decrees. There seems to have been a singular and pertinacious adherence to that principle of “Res adjudicata.” Even in the Louisiana convention, where it would have seemed immaterial to France to what class of claimants the 20 millions of francs should be paid by the United States, final condemnations are also expressly excepted. Bonaparte wanted no precedent that might hereafter stand in his way.
[1 ]The Duchess d’Angoulême, on a public day, asked me whether Spain had ratified the Florida Treaty. On my answering in the negative, “Ce sont les Anglais,” was the instantaneous reply. This was said in the hearing of the whole diplomatic corps. I had not thought it worth while to mention this anecdote in my correspondence. The British ambassador wrote it to his government; Lord Castlereagh spoke of it to Mr. Rush; and he communicated it to the Department of State. I must say, however, that the French government was shy till after we had made peace with England.
[1 ]Great Britain made a separate treaty, and obtained 3 millions sterling for indemnities to British subjects, principally on account of the loss arising from the Act of Bankruptcy, which reduced the French public debt to one-third of its nominal value; a bankruptcy of a general nature, and not at all directed against British stockholders in the French funds. On my representing to the Duke of Richelieu how unfounded was that claim, and how unjust, after having allowed it, to deny the payment of ours, he replied that France had received an equivalent in the abandonment by Great Britain of her claim for the support of French prisoners, the balance of whom, for ten years, had been greatly in her favor. This was pretence; that sum was a pure extortion, to which France was compelled to submit. After satiating every possible claim, it left about half a million in the hands of the British government.
[1 ]See the vindication of the belligerent right by Mr. Murray, since Lord Mansfield, then solicitor or attorney-general. This, by the by, is the last instance, I believe, of seizure by a government of private foreign property in time of peace; and Frederic will not be appealed to as a model for imitation in whatever relates to the law of nations.
[1 ]See for the best exposition of the views of government, though I say so, the report of the Committee of Foreign Relations of the House of Representatives, year 1810, I believe, commonly called “Campbell’s Report.”