In this session the following texts will be discussed:
1. Jefferson, “Opinion on the French Treaties" (4/28/1793)
Source. This extract comes from the following title in the Library: Thomas Jefferson, The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 7
Accessed from http://app.libraryofliberty.org/title/804/86506 on 2007-09-13
OPINION ON FRENCH TREATIES
Apr. 28, 1793.
I proceed, in compliance with the requisition of the President, to give an opinion in writing on the general Question, Whether the U S. have a right to renounce their treaties with France, or to hold them suspended till the government of that country shall be established?
In the Consultation at the President’s on the 19th inst. the Secretary of the Treasury took the following positions & consequences. “France was a monarchy when we entered into treaties with it: but it has now declared itself a Republic, & is preparing a Republican form of government. As it may issue in a Republic, or a Military despotism, or in something else which may possibly render our alliance with it dangerous to ourselves, we have a right of election to renounce the treaty altogether, or to declare it suspended till their government shall be settled in the form it is ultimately to take; and then we may judge whether we will call the treaties into operation again, or declare them forever null. Having that right of election now, if we receive their minister without any qualifications, it will amount to an act of election to continue the treaties; & if the change they are undergoing should issue in a form which should bring danger on us, we shall not be then free to renounce them. To elect to continue them is equivalent to the making a new treaty at this time in the same form, that is to say, with a clause of guarantee; but to make a treaty with a clause of guarantee, during a war, is a departure from neutrality, and would make us associates in the war. To renounce or suspend the treaties therefore is a necessary act of neutrality.”
If I do not subscribe to the soundness of this reasoning, I do most fully to its ingenuity.—I shall now lay down the principles which according to my understanding govern the case.
I consider the people who constitute a society or nation as the source of all authority in that nation, as free to transact their common concerns by any agents they think proper, to change these agents individually, or the organisation of them in form or function whenever they please: that all the acts done by those agents under the authority of the nation, are the acts of the nation, are obligatory on them, & enure to their use, & can in no wise be annulled or affected by any change in the form of the government, or of the persons administering it. Consequently the Treaties between the U S. and France, were not treaties between the U S. & Louis Capet, but between the two nations of America & France, and the nations remaining in existance, tho’ both of them have since changed their forms of government, the treaties are not annulled by these changes.
The Law of nations, by which this question is to be determined, is composed of three branches. 1. The Moral law of our nature. 2. The Usages of nations. 3. Their special Conventions. The first of these only, concerns this question, that is to say the Moral law to which Man has been subjected by his creator, & of which his feelings, or Conscience as it is sometimes called, are the evidence with which his creator has furnished him. The Moral duties which exist between individual and individual in a state of nature, accompany them into a state of society & the aggregate of the duties of all the individuals composing the society constitutes the duties of that society towards any other; so that between society & society the same moral duties exist as did between the individuals composing them while in an unassociated state, their maker not having released them from those duties on their forming themselves into a nation. Compacts then between nation & nation are obligatory on them by the same moral law which obliges individuals to observe their compacts. There are circumstances however which sometimes excuse the non-performance of contracts between man & man: so are there also between nation & nation. When performance, for instance, becomes impossible, non-performance is not immoral. So if performance becomes self-destructive to the party, the law of self-preservation overrules the laws of obligation to others. For the reality of these principles I appeal to the true fountains of evidence, the head & heart of every rational & honest man. It is there Nature has written her moral laws, & where every man may read them for himself. He will never read there the permission to annul his obligations for a time, or for ever, whenever they become “dangerous, useless, or disagreeable.” Certainly not when merely useless or disagreeable, as seems to be said in an authority which has been quoted, Vattel. 2. 197, and tho he may under certain degrees of danger, yet the danger must be imminent, & the degree great. Of these, it is true, that nations are to be judges for themselves, since no one nation has a right to sit in judgment over another. But the tribunal of our consciences remains, & that also of the opinion of the world. These will revise the sentence we pass in our own case, & as we respect these, we must see that in judging ourselves we have honestly done the part of impartial & vigorous judges.
But Reason, which gives this right of self-liberation from a contract in certain cases, has subjected it to certain just limitations.
I. The danger which absolves us must be great, inevitable & imminent. Is such the character of that now apprehended from our treaties with France? What is that danger. 1. Is it that if their government issues in a military despotism, an alliance with them may taint us with despotic principles? But their government, when we allied ourselves to it, was a perfect despotism, civil & military. yet the treaties were made in that very state of things, & therefore that danger can furnish no just cause. 2. Is it that their government may issue in a republic, and too much strengthen our republican principles? But this is the hope of the great mass of our constituents, & not their dread. They do not look with longing to the happy mean of a limited monarchy. 3. But says the doctrine I am combating, the change the French are undergoing may possibly end in something we know not what, and bring on us danger we know not whence. In short it may end in a Rawhead & bloody-bones in the dark. Very well. Let Rawhead & bloody bones come, & then we shall be justified in making our peace with him, by renouncing our antient friends & his enemies. For observe, it is not the possibility of danger, which absolves a party from his contract: for that possibility always exists, & in every case. It existed in the present one at the moment of making the contract. If possibilities would avoid contracts, there never could be a valid contract. For possibilities hang over everything. Obligation is not suspended, till the danger is become real, & the moment of it so imminent, that we can no longer avoid decision without forever losing the opportunity to do it. But can a danger which has not yet taken it’s shape, which does not yet exist, & never may exist, which cannot therefore be defined, can such a danger I ask, be so imminent that if we fail to pronounce on it in this moment we can never have another opportunity of doing it?
4. The danger apprehended, is it that, the treaties remaining valid, the clause guarantying their West India islands will engage us in the war? But Does the Guarantee engage us to enter into the war in any event?
Are we to enter into it before we are called on by our allies? Have we been called on by them?—shall we ever be called on? Is it their interest to call on us?
Can they call on us before their islands are invaded, or imminently threatened?
If they can save them themselves, have they a right to call on us?
Are we obliged to go to war at once, without trying peaceable negociations with their enemy?
If all these questions be against us, there are still others behind.
Are we in a condition to go to war?
Can we be expected to begin before we are in condition?
Will the islands be lost if we do not save them? Have we the means of saving them?
If we cannot save them are we bound to go to war for a desperate object?
Will not a 10. years forbearance in us to call them into the guarantee of our posts, entitle us to some indulgence?
Many, if not most of these questions offer grounds of doubt whether the clause of guarantee will draw us into the war. Consequently if this be the danger apprehended, it is not yet certain enough to authorize us in sound morality to declare, at this moment, the treaties null.
5. Is the danger apprehended from the 17th. article of the treaty of Commerce, which admits French ships of war & privateers to come and go freely, with prizes made on their enemies, while their enemies are not to have the same privilege with prizes made on the French? But Holland & Prussia have approved of this article in our treaty with France, by subscribing to an express Salvo of it in our treaties with them. [Dutch treaty 22. Convention 6. Prussian treaty 19.] And England in her last treaty with France [art. 40] has entered into the same stipulation verbatim, & placed us in her ports on the same footing on which she is in ours, in case of a war of either of us with France. If we are engaged in such a war, England must receive prizes made on us by the French, & exclude those made on the French by us. Nay further, in this very article of her treaty with France, is a salvo of any similar article in any anterior treaty of either party. and ours with France being anterior, this salvo confirms it expressly. Neither of these three powers then have a right to complain of this article in our treaty.
6. Is the danger apprehended from the 22d. Art. of our treaty of commerce, which prohibits the enemies of France from fitting out privateers in our ports, or selling their prizes here. But we are free to refuse the same thing to France, there being no stipulation to the contrary, and we ought to refuse it on principles of fair neutrality.
7. But the reception of a Minister from the Republic of France, without qualifications, it is thought will bring us into danger: because this, it is said, will determine the continuance of the treaty, and take from us the right of self-liberation when at any time hereafter our safety would require us to use it. The reception of the Minister at all (in favor of which Colo. Hamilton has given his opinion, tho reluctantly as he confessed) is an acknolegement of the legitimacy of their government: and if the qualifications meditated are to deny that legitimacy, it will be a curious compound which is to admit & deny the same thing. But I deny that the reception of a Minister has any thing to do with the treaties. There is not a word, in either of them, about sending ministers. This has been done between us under the common usage of nations, & can have no effect either to continue or annul the treaties.
But how can any act of election have the effect to continue a treaty which is acknoleged to be going on still? For it was not pretended the treaty was void, but only voidable if we chuse to declare it so. To make it void would require an act of election, but to let it go on requires only that we should do nothing, and doing nothing can hardly be an infraction of peace or neutrality.
But I go further & deny that the most explicit declaration made at this moment that we acknolege the obligation of the treatys could take from us the right of non-compliance at any future time when compliance would involve us in great & inevitable danger.
I conclude then that few of these sources threaten any danger at all; and from none of them is it inevitable: & consequently none of them give us the right at this moment of releasing ourselves from our treaties.
II. A second limitation on our right of releasing ourselves is that we are to do it from so much of the treaties only as is bringing great & inevitable danger on us, & not from the residue, allowing to the other party a right at the same time to determine whether on our non-compliance with that part they will declare the whole void. This right they would have, but we should not. Vattel. 2. 202. The only part of the treaties which can really lead us into danger is the clause of guarantee. That clause is all then we could suspend in any case, and the residue will remain or not at the will of the other party.
III. A third limitation is that where a party from necessity or danger withholds compliance with part of a treaty, it is bound to make compensation where the nature of the case admits & does not dispense with it. 2. Vattel 324. Wolf. 270. 443. If actual circumstances excuse us from entering into the war under the clause of guarantee, it will be a question whether they excuse us from compensation. Our weight in the war admits of an estimate; & that estimate would form the measure of compensation.
If in withholding a compliance with any part of the treaties, we do it without just cause or compensation, we give to France a cause of war, and so become associated in it on the other side. An injured friend is the bitterest of foes, & France had not discovered either timidity, or over-much forbearance on the late occasions. Is this the position we wish to take for our constituents? It is certainly not the one they would take for themselves.
I will proceed now to examine the principal authority which has been relied on for establishing the right of self liberation; because tho’ just in part, it would lead us far beyond justice, if taken in all the latitude of which his expressions would admit. Questions of natural right are triable by their conformity with the moral sense & reason of man. Those who write treatises of natural law, can only declare what their own moral sense & reason dictate in the several cases they state. Such of them as happen to have feelings & a reason coincident with those of the wise & honest part of mankind, are respected & quoted as witnesses of what is morally right or wrong in particular cases. Grotius, Puffendorf, Wolf, & Vattel are of this number. Where they agree their authority is strong. But where they differ, & they often differ, we must appeal to our own feelings and reason to decide between them.
The passages in question shall be traced through all these writers, that we may see wherein they concur, & where that concurrence is wanting. It shall be quoted from them in the order in which they wrote, that is to say, from Grotius first, as being the earliest writer, Puffendorf next, then Wolf, & lastly Vattel as latest in time.
Grotius. 2. 16. 16.
“Hither must be referred the common question, concerning personal & real treaties. If indeed it be with a free people, there can be no doubt but that the engagement is in it’s nature real, because the subject is a permanent thing, and even tho the government of the state be changed into a Kingdom, the treaty remains, because the same body remains, tho’ the head is changed, and, as we have before said, the government which is exercised by a King, does not cease to be the government of the people. There is an exception, when the object seems peculiar to the government as if free cities contract a league for the defence of their freedom.”
Puffendorf. 8. 9. 6.
“It is certain that every alliance made with a republic, is real, & continues consequently to the term agreed on by the treaty, altho’ the magistrates who concluded it be dead before, or that the form of government is changed, even from a democracy to a monarchy: for in this case the people does not cease to be the same, and the King, in the case supposed, being established by the consent of the people, who abolished the republican government, is understood to accept the crown with all the engagements which the people conferring it had contracted, as being free & governing themselves. There must nevertheless be an Exception of the alliances contracted with a view to preserve the present government. As if two Republics league for neutral defence against those who would undertake to invade their liberty: for if one of these two people consent afterwards voluntarily to change the form of their government, the alliance ends of itself, because the reason on which it was founded no longer subsists.”
“The alliance which is made with a free people, or with a popular government, is a real alliance; and as when the form of government changes, the people remains the same, (for it is the association which forms the people, & not the manner of administering the government) this alliance subsists, tho’ the form of government changes, unless, as is evident, the reason of the alliance was particular to the popular state.”
Vattel. 2. 197.
“The same question presents itself in real alliances, & in general on every alliance made with a state, & not in particular with a King for the defense of his person. We ought without doubt to defend our ally against all invasion, against all foreign violence, & even against rebel subjects. We ought in like manner to defend a republic against the enterprises of an oppressor of the public liberty. But we ought to recollect that we are the ally of the state, or of the nation, & not it’s judge. If the nation has deposed it’s King in form, if the people of a republic has driven away it’s magistrates, & have established themselves free, or if they have acknoleged the authority of an usurper, whether expressly or tacitly, to oppose these domestic arrangements, to contest their justice or validity, would be to meddle with the government of the nation, & to do it an injury. The ally remains the ally of the state, notwithstanding the change which has taken place. But if this change renders the alliance useless, dangerous or disagreeable to it, it is free to renounce it. For it may say with truth, that it would not have allied itself with this nation, if it had been under the present form of it’s government.”
The doctrine then of Grotius, Puffendorf & Wolf is that “treaties remain obligatory notwithstanding any change in the form of government, except in the single case where the preservation of that form was the object of the treaty.” There the treaty extinguishes, not by the election or declaration of the party remaining in statu quo; but independantly of that, by the evanishment of the object. Vattel lays down, in fact, the same doctrine, that treaties continue obligatory, notwithstanding a change of government by the will of the other party, that to oppose that will would be a wrong, & that the ally remains an ally notwithstanding the change. So far he concurs with all the previous writers. But he then adds what they had not said, nor would say “but if this change renders the alliance useless, dangerous, or disagreeable to it, it is free to renounce it.” It was unnecessary for him to have specified the exception of danger in this particular case, because that exception exists in all cases & it’s extent has been considered. But when he adds that, because a contract is become merely useless or disagreeable, we are free to renounce it, he is in opposition to Grotius, Puffendorf, & Wolf, who admit no such licence against the obligation of treaties, & he is in opposition to the morality of every honest man, to whom we may safely appeal to decide whether he feels himself free to renounce a contract the moment it becomes merely useless or disagreeable, to him? We may appeal too to Vattel himself, in those parts of his book where he cannot be misunderstood, & to his known character, as one of the most zealous & constant advocates for the preservation of good faith in all our dealings. Let us hear him on other occasions; & first where he shews what degree of danger or injury will authorize self-liberation from a treaty. “If simple lezion” (lezion means the loss sustained by selling a thing for less than half value, which degree of loss rendered the sale void by the Roman law), “if simple lezion, says he, or some degree of disadvantage in a treaty does not suffice to render it invalid, it is not so as to inconveniences which would go to the ruin of the nation. As every treaty ought to be made by a sufficient power, a treaty pernicious to the state is null, & not at all obligatory; no governor of a nation having power to engage things capable of destroying the state, for the safety of which the empire is trusted to him. The nation itself, bound necessarily to whatever it’s preservation & safety require, cannot enter into engagements contrary to it’s indispensable obligations.” Here then we find that the degree of injury or danger which he deems sufficient to liberate us from a treaty, is that which would go to the absolute ruin or destruction of the state; not simply the lezion of the Roman law, not merely the being disadvantageous or dangerous. For as he says himself § 158. “lezion cannot render a treaty invalid. It is his duty, who enters into engagements, to weigh well all things before he concludes. He may do with his property what he pleases, he may relinquish his rights, renounce his advantages, as he judges proper: the acceptant is not obliged to inform himself of his motives nor to weigh their just value. If we could free ourselves from a compact because we find ourselves injured by it, there would be nothing firm in the contracts of nations. Civil laws may set limits to lezion, & determine the degree capable of producing a nullity of the contract. But sovereigns acknolege no judge. How establish lezion among them? Who will determine the degree sufficient to invalidate a treaty? The happiness & peace of nations require manifestly that their treaties should not depend on a means of nullity so vague & so dangerous.”
Let us hear him again on the general subject of the observance of treaties § 163. “It is demonstrated in natural law that he who promises another confers on him a perfect right to require the thing promised, & that, consequently, not to observe a perfect promise, is to violate the right of another; it is as manifest injustice as to plunder any one of their right. All the tranquillity, the happiness & security of mankind rest on justice, on the obligation to respect the rights of others. The respect of others for our rights of domain & property is the security of our actual possessions; the faith of promises is our security for the things which cannot be delivered or executed on the spot. No more security, no more commerce among men, if they think themselves not obliged to preserve faith, to keep their word. This obligation then is as necessary as it is natural & indubitable, among nations who live together in a state of nature, & who acknolege no superior on earth, to maintain order & peace in their society. Nations & their governors then ought to observe inviolably their promises & their treaties. This great truth, altho’ too often neglected in practice, is generally acknoleged by all nations; the reproach of perfidy is a bitter affront among sovereigns: now he who does not observe a treaty is assuredly perfidious, since he violates his faith. On the contrary nothing is so glorious to a prince & his nation, as the reputation of inviolable fidelity to his word?” Again § 219. “Who will doubt that treaties are of the things sacred among nations? They decide matters the most important. They impose rules on the pretensions of sovereigns: they cause the rights of nations to be acknoleged, they assure their most precious interests. Among political bodies, sovereigns, who acknolege no superior on earth, treaties are the only means of adjusting their different pretensions, of establishing a rule, to know on what to count, on what to depend. But treaties are but vain words if nations do not consider them as respectable engagements, as rules, inviolable for sovereigns, & sacred through the whole earth. § 220. The faith of treaties, that firm & sincere will, that invariable constancy in fulfilling engagements, of which a declaration is made in a treaty, is there holy & sacred, among nations, whose safety & repose it ensures; & if nations will not be wanting to themselves, they will load with infamy whoever violates his faith.”
After evidence so copious & explicit of the respect of this author for the sanctity of treaties, we should hardly have expected that his authority would have been resorted to for a wanton invalidation of them whenever they should become merely useless or disagreeable. We should hardly have expected that, rejecting all the rest of his book, this scrap would have been culled, & made the hook whereon to hang such a chain of immoral consequences. Had the passage accidentally met our eye, we should have imagined it had fallen from the author’s pen under some momentary view, not sufficiently developed to found a conjecture what he meant: and we may certainly affirm that a fragment like this cannot weigh against the authority of all other writers, against the uniform & systematic doctrine of every work from which it is torn, against the moral feelings & the reason of all honest men. If the terms of the fragment are not misunderstood, they are in full contradiction to all the written & unwritten evidences of morality: if they are misunderstood, they are no longer a foundation for the doctrines which have been built on them.
But even had this doctrine been as true as it is manifestly false, it would have been asked, to whom is it that the treaties with France have become disagreeable? How will it be proved that they are useless?
The conclusion of the sentence suggests a reflection too strong to be suppressed “for the party may say with truth that it would not have allied itself with this nation, if it had been under the present form of it’s government.” The Republic of the U. S. allied itself with France when under a despotic government. She changes her government, declares it shall be a Republic, prepares a form of Republic extremely free, and in the mean time is governing herself as such, and it is proposed that America shall declare the treaties void because “it may say with truth that it would not have allied itself with that nation, if it had been under the present form of it’s government!” Who is the American who can say with truth that he would not have allied himself to France if she had been a republic? or that a Republic of any form would be as disagreeable as her antient despotism?
Upon the whole I conclude
That the treaties are still binding, notwithstanding the change of government in France: that no part of them, but the clause of guarantee, holds up danger, even at a distance.
And consequently that a liberation from no other part could be proposed in any case: that if that clause may ever bring danger, it is neither extreme, nor imminent, nor even probable: that the authority for renouncing a treaty, when useless or disagreeable, is either misunderstood, or in opposition to itself, to all their writers, & to every moral fleeing: that were it not so, these treaties are in fact neither useless nor disagreeable.
That the receiving a Minister from France at this time is an act of no significance with respect to the treaties, amounting neither to an admission nor a denial of them, forasmuch as he comes not under any stipulation in them:
That were it an explicit admission, or were an express declaration of this obligation now to be made, it would not take from us that right which exists at all times of liberating ourselves when an adherence to the treaties would be ruinous or destructive to the society: and that the not renouncing the treaties now is so far from being a breach of neutrality, that the doing it would be the breach, by giving just cause of war to France.
2. Jefferson, “Some Thoughts on Treaties: to James Monroe" (6/17/1785)
Source. This extract comes from the following title in the Library: Thomas Jefferson, The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 4.
Accessed from http://app.libraryofliberty.org/title/756/86366 on 2007-09-13
TO JAMES MONROE
Paris, June 17. 1785.
—I received three days ago your favor of Apr. 12. You therein speak of a former letter to me, but it has not come to hand, nor any other of later date than the 14th of December. My last letter to you was of the 11th of May by Mr. Adams who went in the packet of that month. These conveiances are now becoming deranged. We have had expectations of their coming to Havre which would infinitely facilitate the communication between Paris & Congress: but their deliberations on the subject seem to be taking another turn. They complain of the expence, and that their commerce with us is too small to justify it. They therefore talk of sending a packet every six weeks only. The present one therefore, which should have sailed about this time, will not sail until the 1st of July. However the whole matter is as yet undecided. I have hoped that when Mr. St. John arrives from N. York he will get them replaced on their monthly system. By the bye what is the meaning of a very angry resolution of Congress on this subject? I have it not by me and therefore cannot cite it by date, but you will remember it, and will oblige me by explaining it’s foundation. This will be handed you by Mr. Otto who comes to America as Chargé des Affaires in the room of Mr. Marbois promoted to the Intendancy of Hispaniola, which office is next to that of Governor. He becomes the head of the civil as the Governor is of the military department. I am much pleased with Otto’s appointment. He is good humored, affectionate to America, will see things in a friendly light when they admit of it, in a rational one always, and will not pique himself on writing every trifling circumstance of irritation to his court. I wish you to be acquainted with him, as a friendly intercourse between individuals who do business together produces a mutual spirit of accommodation useful to both parties. It is very much our interest to keep up the affection of this country for us, which is considerable. A court has no affections, but those of the people whom they govern influence their decisions even in the most arbitrary governments.—The negociations between the Emperor & Dutch are spun out to an amazing length. At present there is no apprehension but that they will terminate in peace. This court seems to press it with ardour and the Dutch are averse considering the terms cruel & unjust as they evidently are. The present delays therefore are imputed to their coldness & to their forms. In the mean time the Turk is delaying the demarcation of limits between him and the emperor, is making the most vigorous preparations for war, and has composed his ministry of war-like characters deemed personally hostile to the emperor. Thus time seems to be spinning out both by the Dutch & Turks, & time is wanting for France. Every year’s delay is a great thing to her. It is not impossible therefore but that she may secretly encourage the delays of the Dutch & hasten the preparations of the Porte while she is recovering vigour herself and, in order to be able to present such a combination to the emperor as may dictate to him to be quiet. But the designs of these courts are inscrutable. It is our interest to pray that this country may have no continental war till our peace with England is perfectly settled. The merchants of this country continue as loud & furious as ever against the Arret of August 1784, permitting our commerce with their islands to a certain degree. Many of them have actually abandoned their trade. The Ministry are disposed to be firm, but there is a point at which they will give way, that is if the clamours should become such as to endanger their places. It is evident that nothing can be done by us, at this time, if we may hope it hereafter. I like your removal to N. York, and hope Congress will continue there and never execute the idea of building their federal town. Before it could be finished a change of Members in Congress or the admission of new states would remove them somewhere else. It is evident that when a sufficient number of the Western states come in they will remove it to George town. In the mean time it is our interest that it should remain where it is, and give no new pretensions to any other place. I am also much pleased with the proposition to the states to invest Congress with the regulation of their trade, reserving its revenue to the states. I think it a happy idea, removing the only objection which could have been justly made to the proposition. The time too is the present, before the admission of the Western states. I am very differently affected towards the new plan of opening our land office by dividing the lands among the states and selling them at vendue. It separates still more the interests of the states which ought to be made joint in every possible instance in order to cultivate the idea of our being one nation, and to multiply the instances in which the people shall look up to Congress as their head. And when the states get their portions they will either fool them away, or make a job of it to serve individuals. Proofs of both these practices have been furnished, and by either of them that invaluable fund is lost which ought to pay our public debt. To sell them at vendue, is to give them to the bidders of the day be they many or few. It is ripping up the hen which lays golden eggs. If sold in lots at a fixed price as first proposed, the best lots will be sold first. As these become occupied it gives a value to the interjacent ones, and raises them, tho’ of inferior quality, to the price of the first. I send you by Mr. Otto a copy of my book. Be so good as to apologize to Mr, Thomson for my not sending him one by this conveiance. I could not burthen Mr. Otto with more on so long a road as that from here to l’Orient. I will send him one by a Mr. Williams who will go ere long. I have taken measures to prevent it’s publication. My reason is that I fear the terms in which I speak of slavery and of our constitution may produce an irritation which will revolt the minds of our countrymen against reformation in these two articles, and thus do more harm than good. I have asked of Mr. Madison to sound this matter as far as he can, and if he thinks it will not produce that effect, I have then copies enough printed to give one to each of the young men at the college, and to my friends in the country.
I am sorry to see a possibility of A. L.’sbeing put into the Treasury. He has no talents for the office, and what he has will be employed in rummaging old accounts to involve you in eternal war with R. M. and he will in a short time introduce such dissensions into the Commission as to break it up. If he goes on the other appointment to Kaskaskia he will produce a revolt of that settlement from the U. S. I thank you for your attention to my outfit. For the articles of household furniture, clothes, and a carriage, I have already paid 28,000 livres and have still more to pay. For the greatest part of this I have been obliged to anticipate my salary from which however I shall never be able to repay it. I find that by a rigid economy, bordering however on meanness I can save perhaps $500 a month, at least in the summer. The residue goes for expences so much of course & of necessity that I cannot avoid them without abandoning all respect to my public character. Yet I will pray you to touch this string, which I know to be a tender one with Congress with the utmost delicacy. I had rather be ruined in my fortune, than in their esteem. If they allow me half a year’s salary as an outfit I can get through my debts in time. If they raise the salary to what it was, or even pay our house rent & taxes, I can live with more decency. I trust that Mr. A.’s house at the Hague & Dr. F.’s at Passy the rent of which had been always allowed him will give just expectations of the same allowance to me. Mr. Jay however did not charge it. But he lived œconomically and laid up money. I will take the liberty of hazarding to you some thoughts on the policy of entering into treaties with the European nations, and the nature of them. I am not wedded to these ideas, and therefore shall relinquish them cheerfully when Congress shall adopt others, and zealously endeavor to carry theirs into effect. First as to the policy of making treaties. Congress, by the Confederation have no original and inherent power over the commerce of the states. But by the 9th. article they are authorized to enter into treaties of commerce. The moment these treaties are concluded the jurisdiction of Congress over the commerce of the states springs into existence, and that of the particular states is superseded so far as the articles of the treaty may have taken up the subject. There are two restrictions only on the exercise of the power of treaty by Congress. 1st. that they shall not by such treaty restrain the legislatures of the states from imposing such duties on foreigners as their own people are subject to. 2dly. nor from prohibiting the exportation or importation of any particular species of goods. Leaving these two points free, Congress may by treaty establish any system of commerce they please. But, as I before observed, it is by treaty alone they can do it. Though they may exercise their other powers by resolution or ordinance, those over commerce can only be exercised by forming a treaty, and this probably by an accidental wording of our Confederation. If therefore it is better for the states that Congress should regulate their commerce, it is proper that they should form treaties with all nations with whom we may possibly trade. You see that my primary object in the formation of treaties is to take the commerce of the states out of the hands of the states, and to place it under the superintendence of Congress, so far as the imperfect provisions of our constitution will admit, and until the states shall by new compact make them more perfect. I would say then to every nation on earth, by treaty, your people shall trade freely with us, & ours with you, paying no more than the most favoured nation, in order to put an end to the right of individual states acting by fits and starts to interrupt our commerce or to embroil us with any nation. As to the terms of these treaties, the question becomes more difficult. I will mention three different plans. 1. that no duties shall be laid by either party on the productions of the other. 2. that each may be permitted to equalize their duties to those laid by the other. 3. that each shall pay in the ports of the other such duties only as the most favoured nations pay. 1. Were the nations of Europe as free and unembarrassed of established system as we are, I do verily believe they would concur with us in the first plan. But it is impossible. These establishments are fixed upon them, they are interwoven with the body of their laws & the organization of their government & they make a great part of their revenue; they cannot then get rid of them. 2. The plan of equal imposts presents difficulties insurmountable. For how are the equal imposts to be effected? Is it by laying in the ports of A. an equal percent on the goods of B. with that which B. has laid in his ports on the goods of A.? But how are we to find what is that percent? For this is not the usual form of imposts. They generally pay by the ton, by the measure, by the weight, & not by the value. Besides if A. sends a million’s worth of goods to B. & takes back but the half of that, and each pays the same percent, it is evident that A. pays the double of what he recovers in the same way with B. This would be our case with Spain. Shall we endeavour to effect equality then by saying A. may levy so much on the sum of B.’s importations into his ports, as B. does on the sum of A’s importations into the ports of B.? But how find out that sum? Will either party lay open their custom house books candidly to evince this sum? Does either keep their books so exactly as to be able to do it? This proposition was started in Congress when our institutions were formed, as you may remember, and the impossibility of executing it occasioned it to be disapproved. Besides who should have a right of deciding when the imposts were equal. A. would say to B. my imposts do not raise so much as yours; I raise them therefore. B. would then say you have made them greater than mine, I will raise mine, and thus a kind of auction would be carried on between them, and a mutual imitation, which would end in anything sooner than equality, and right. 3. I confess then to you that I see no alternative left but that which Congress adopted, of each party placing the other on the footing of the most favoured nation. If the nations of Europe from their actual establishments are not at liberty to say to America that she shall trade in their ports duty free they may say she may trade there paying no higher duties than the most favoured nation. And this is valuable in many of these countries where a very great difference is made between different nations. There is no difficulty in the execution of this contract, because there is not a merchant who does not know, or may not know, the duty paid by every nation on every article. This stipulation leaves each party at liberty to regulate their own commerce by general rules; while it secures the other from partial and oppressive discriminations. The difficulty which arises in our case is, with the nations having American territory. Access to the West Indies is indispensably necessary to us. Yet how to gain it, when it is the established system of these nations to exclude all foreigners from their colonies. The only chance seems to be this, our commerce to the mother countries is valuable to them. We must endeavor then to make this the price of an admission into their West Indies, and to those who refuse the admission we must refuse our commerce or load theirs by odious discriminations in our ports. We have this circumstance in our favour too, that what one grants us in their islands, the others will not find it worth their while to refuse. The misfortune is that with this country we gave this price for their aid in the war, and we have now nothing more to offer. She being withdrawn from the competition leaves Gr. Britain much more at liberty to hold out against us. This is the difficult part of the business of treaty, and I own it does not hold out the most flattering prospect.—I wish you would consider this subject and write me your thoughts on it. Mr. Gherry [sic] wrote me on the same subject. Will you give me leave to impose on you the trouble of communicating this to him? It is long, and will save me much labour in copying. I hope he will be so indulgent as to consider it as an answer to that part of his letter, and will give me his further thoughts on it.
Shall I send you so much of the Encyclopedia as is already published or reserve it here till you come? It is about 40 vols. which probably is about half the work. Give yourself no uneasiness about the money. Perhaps I may find it convenient to ask you to pay trifles occasionally for me in America. I sincerely wish you may find it convenient to come here. The pleasure of the trip will be less than you expect but the utility greater. It will make you adore your own country, it’s soil, it’s climate, it’s equality, liberty, laws, people & manners. My God! how little do my country men know what precious blessings they are in possession of, and which no other people on earth enjoy. I confess I had no idea of it myself. While we shall see multiplied instances of Europeans going to live in America, I will venture to say no man now living will ever see an instance of an American removing to settle in Europe & continuing there. Come then & see the proofs of this, and on your return add your testimony to that of every thinking American, in order to satisfy our countrymen how much it is their interest to preserve uninfected by contagion those peculiarities in their government & manners to which they are indebted for these blessings. Adieu, my dear friend. Present me affectionately to your collegues. If any of them think me worth writing to, they may be assured that in the epistolary account I will keep the debit side against them. Once more adieu.
June 19. Since writing the above we receive the following account. Mons. Pilatre de Rosiere, who has been waiting some months at Boulogne for a fair wind to cross the channel, at length took his ascent with a companion. The wind changed after a while & brought him back on the French coast. Being at a height of about 6000 f. some accident happened to his baloon of inflammable air. It burst, they fell from that height & were crushed to atoms. There was a Montgolfier combined with the baloon of inflammable air. It is suspected the heat of the Montgolfier rarified too much the inflammable air of the other & occasioned it to burst. The Montgolfier came down in good order.
3. Hamilton, “Draft of a Defense of the Neutrality Proclamation" (May 1793)
Source. This extract comes from the following title in the Library: Alexander Hamilton, The Pacificus-Helvidius Debates of 1793-1794: Toward the Completion of the American Founding, edited with and Introduction by Morton J. Frisch (Indiapolis: Liberty Fund, 2007).
Accessed from http://app.libraryofliberty.org/title/1910/112541 on 2007-09-13
Defense of the President’s Neutrality Proclamation
In the following essay, Hamilton attacks the motives of those who opposed President Washington’s Neutrality Proclamation of 1793 relative to the war between England and France. It should be read in conjunction with Hamilton’s Pacificus essays, which attempt to counter the criticisms of the president’s issuance of that proclamation.
[Philadelphia, May 1793]
1. It is a melancholy truth, which every new political occurrence more and more unfolds, that there is a discription of men in this country, irreconcileably adverse to the government of the United States; whose exertions, whatever be the springs of them, whether infatuation or depravity or both, tend to disturb the tranquillity order and prosperity of this now peaceable flourishing and truly happy land. A real and enlightened friend to public felicity cannot observe new confirmations of this fact, without feeling a deep and poignant regret, that human nature should be so refractory and perverse; that amidst a profusion of the bounties and blessings of Providence, political as well as natural, inviting to contentment and gratitude, there should still be found men disposed to cherish and propagate disquietude and alarm; to render suspected and detested the instruments of the felicity, in which they partake; to sacrifice the most substantial advantages, that ever fell to the lot of a people at the shrine of personal envy rivalship and animosity, to the instigations of a turbulent and criminal ambition, or to the treacherous phantoms of an ever craving and never to be satisfied spirit of innovation; a spirit, which seems to suggest to its votaries that the most natural and happy state of Society is a state of continual revolution and change—that the welfare of a nation is in exact ratio to the rapidity of the political vicissitudes, which it undergoes—to the frequency and violence of the tempests with which it is agitated.
2. Yet so the fact unfortunately is—such men there certainly are—and it is essential to our dearest interests to the preservation of peace and good order to the dignity and independence of our public councils—to the real and permanent security of liberty and property—that the Citizens of the UStates should open their eyes to the true characters and designs of the men alluded to—should be upon their guard against their insidious and ruinous machinations.
3. At this moment a most dangerous combination exists. Those who for some time past have been busy in undermining the constitution and government of the UStates, by indirect attacks, by labouring to render its measures odious, by striving to destroy the confidence of the people in its administration—are now meditating a more direct and destructive war against it—and embodying and arranging their forces and systematising their efforts. Secret clubs are formed and private consultations held. Emissaries are dispatched to distant parts of the United States to effect a concert of views and measures, among the members and partisans of the disorganising corps, in the several states. The language in the confidential circles is that the constitution of the United States is too complex a system—that it savours too much of the pernicious doctrine of “ballances and checks” that it requires to be simplified in its structure, to be purged of some monarchical and aristocratic ingredients which are said to have found their way into it and to be stripped of some dangerous prerogatives, with which it is pretended to be invested.
4. The noblest passion of the human soul, which no where burns with so pure and bright a flame, as in the breasts of the people of the UStates, is if possible to be made subservient to this fatal project. That zeal for the liberty of mankind, which produced so universal a sympathy in the cause of France in the first stages of its revolution, and which, it is supposed, has not yet yielded to the just reprobation, which a sober temperate and humane people, friends of religion, social order, and justice, enemies to tumult and massacre, to the wanton and lawless shedding of human blood cannot but bestow upon those extravagancies excesses and outrages, which have sullied and which endanger that cause—that laudable, it is not too much to say that holy zeal is intended by every art of misrepresentation and deception to be made the instrument first of controuling finally of overturning the Government of the Union.
5. The ground which has been so wisely taken by the Executive of the UStates, in regard to the present war of Europe against France, is to be the pretext of this mischievous attempt. The people are if possible to be made to believe, that the Proclamation of neutrality issued by the President of the US was unauthorised illegal and officious—inconsistent with the treaties and plighted faith of the Nation—inconsistent with a due sense of gratitude to France for the services rendered us in our late contest for independence and liberty—inconsistent with a due regard for the progress and success of republican principles. Already the presses begin to groan with invective against the Chief Magistrate of the Union, for that prudent and necessary measure; a measure calculated to manifest to the World the pacific position of the Government and to caution the citizens of the UStates against practices, which would tend to involve us in a War the most unequal and calamitous, in which it is possible for a Country to be engaged—a war which would not be unlikely to prove pregnant with still greater dangers and disasters, than that by which we established our existence as an Independent Nation.
6. What is the true solution of this extraordinary appearance? Are the professed the real motives of its authors? They are not. The true object is to disparage in the opinion and affections of his fellow citizens that man who at the head of our armies fought so successfully for the Liberty and Independence, which are now our pride and our boast—who during the war supported the hopes, united the hearts and nerved the arm of his countrymen—who at the close of it, unseduced by ambition & the love of power, soothed and appeased the discontents of his suffering companions in arms, and with them left the proud scenes of a victorious field for the modest retreats of private life—who could only have been drawn out of these favourite retreats, to aid in the glorious work of ingrafting that liberty, which his sword had contributed to win, upon a stock of which it stood in need and without which it could not flourish—endure—a firm adequate national Government—who at this moment sacrifices his tranquillity and every favourite pursuit to the peremptory call of his country to aid in giving solidity to a fabric, which he has assisted in rearing—whose whole conduct has been one continued proof of his rectitude moderation disinterestedness and patriotism, who whether the evidence of a uniform course of virtuous public actions be considered, or the motives likely to actuate a man placed precisely in his situation be estimated, it may safely be pronounced, can have no other ambition than that of doing good to his Country & transmitting his fame unimpaired to posterity. For what or for whom is he to hazard that rich harvest of glory, which he has acquired that unexampled veneration and love of his fellow Citizens, which he so eminently possesses?
7. Yet the men alluded to, while they contend with affected zeal for gratitude towards a foreign Nation, which in assisting us was and ought to have been influenced by considerations relative to its own interest—forgetting what is due to a fellow Citizen, who at every hazard rendered essential services to his Country from the most patriotic motives—insidiously endeavour to despoil him of that precious reward of his services, the confidence and approbation of his fellow Citizens.
8. The present attempt is but the renewal in another form of an attack some time since commenced, and which was only dropped because it was perceived to have excited a general indignation. Domestic arrangements of mere convenience, calculated to reconcile the oeconomy of time with the attentions of decorum and civility were then the topics of malevolent declamation. A more serious article of charge is now opened and seems intended to be urged with greater earnestness and vigour. The merits of it shall be examined in one or two succeeding papers, I trust in a manner, that will evince to every candid mind to futility.
9. To be an able and firm supporter of the Government of the Union is in the eyes of the men referred to a crime sufficient to justify the most malignant persecution. Hence the attacks which have been made and repeated with such persevering industry upon more than one public Character in that Government. Hence the effort which is now going on to depreciate in the eyes and estimation of the People the man whom their unanimous suffrages have placed at the head of it.
10. Hence the pains which are taking to inculcate a discrimination between principles and men and to represent an attachment to the one as a species of war against the other; an endeavour, which has a tendency to stifle or weaken one of the best and most useful feelings of the human heart—a reverence for merit—and to take away one of the strongest incentives to public virtue—the expectation of public esteem.
11. A solicitude for the character who is attacked forms no part of the motives to this comment. He has deserved too much, and his countrymen are too sensible of it to render any advocation of him necessary. If his virtues and services do not secure his fame and ensure to him the unchangeable attachment of his fellow Citizens, twere in vain to attempt to prop them by anonymous panygeric.
12. The design of the observations which have been made is merely to awaken the public attention to the views of a party engaged in a dangerous conspiracy against the tranquillity and happiness of their country. Aware that their hostile aims against the Government can never succeed til they have subverted the confidence of the people in its present Chief Magistrate, they have at length permitted the suggestions of their enmity to betray them into this hopeless and culpable attempt. If we can destroy his popularity (say they) our work is more than half completed.
13. In proportion as the Citizens of the UStates value the constitution on which their union and happiness depend, in proportion as they tender the blessings of peace and deprecate the calamities of War—ought to be their watchfulness against this success of the artifices which will be employed to endanger that constitution and those blessings. A mortal blow is aimed at both.
14. It imports them infinitely not to be deceived by the protestations which are made—that no harm is meditated against the Constitution—that no design is entertained to involve the peace of the Country. These appearances are necessary to the accomplishment of the plan which has been formed. It is known that the great body of the People are attached to the constitution. It would therefore defeat the intention of destroying it to avow that it exists. It is also known that the People of the UStates are firmly attached to peace. It would consequently frustrate the design of engaging them in the War to tell them that such an object is in contemplation.
15. A more artful course has therefore been adopted. Professions of good will to the Constitution are made without reserve: But every possible art is employed to render the administration and the most zealous and useful friends of the Government odious. The reasoning is obvious. If the people can be persuaded to dislike all the measures of the Government and to dislike all or the greater part of those who have [been] most conspicuous in establishing or conducting it—the passage from this to the dislike and change of the constitution will not be long nor difficult. The abstract idea of regard for a constitution on paper will not long resist a thorough detestation of its practice.
16. In like manner, professions of a disposition to preserve the peace of the Country are liberally made. But the means of effecting the end are condemned; and exertions are used to prejudice the community against them. A proclamation of neutrality in the most cautious form is represented as illegal—contrary to our engagements with and our duty towards one of the belligerent powers. The plain inference is that in the opinion of these characters the UStates are under obligations which do not permit them to be neutral. Of course they are in a situation to become a party in the War from duty.
17. Pains are likewise taken to inflame the zeal of the people for the cause of France and to excite their resentments against the powers at War with her. To what end all this—but to beget if possible a temper in the community which may overrule the moderate or pacific views of the Government.
4. Washington to Hamilton, April 18, 1793
Source: Alexander Hamilton, The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 4.
Accessed from http://app.libraryofliberty.org/title/1381/64389 on 2007-09-17
washington to hamilton
April 18, 1793.
Sir:—The posture of affairs in Europe, particularly between France and Great Britain, places the United States in a delicate situation, and requires much consideration as to the measures which it will be proper for them to observe in the war between those Powers. With a view to forming a general plan of conduct for the Executive, I have stated and inclosed sundry questions, to be considered preparatory to a meeting at my house to-morrow, where I shall expect to see you at nine o’clock, and to receive the result of your reflections thereon.
- Question 1.—Shall a proclamation issue for the purpose of preventing interferences of the citizens of the United States in the war between France and Great Britain, etc.? Shall it contain a declaration of neutrality or not? What shall it contain?
- Question 2.—Shall a minister from the republic of France be received?
- Question 3.—If received, shall it be absolutely, or with qualifications; and if with qualifications, of what kind?
- Question 4.—Are the United States obliged, by good faith, to consider the treaties heretofore made with France, as applying to the present situation of the parties? May they either renounce them, or hold them suspended till the government of France shall be established?
- Question 5.—If they have the right, is it expedient to do either, and which?
- Question 6.—If they have an option, would it be a breach of neutrality to consider the treaties still in operation?
- Question 7.—If the treaties are to be considered as now in operation, is the guaranty in the treaty of alliance applicable to a defensive war only, or to war either offensive or defensive?
- Question 8.—Does the war in which France is engaged appear to be offensive or defensive on her part, or of a mixed and equivocal character?
- Question 9.—If of a mixed and equivocal character, does the guaranty, in any event, apply to such a war?
- Question 10.—What is the effect of a guaranty, such as that to be found in the treaty of alliance between the United States and France?
- Question 11.—Does any article in either of the treaties prevent ships of war, other than privateers, of the Powers opposed to France, from coming into the ports of the United States, to act as convoys to their own merchantmen? or does it lay other restraints upon them, more than would apply to the ships of war of France?
- Question 12.—Should the future regent of France send a minister to the United States, ought he to be received?
- Question 13.—Is it necessary or advisable to call together the two Houses of Congress, with a view to the present posture of European affairs? If it is, what should be the particular objects of such a call?
5. Hamilton to Washington, April, 1793
Source: Alexander Hamilton, The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 4.
Accessed from http://app.libraryofliberty.org/title/1381/64391 on 2007-09-17
hamilton to washington
Question the Third proposed by the President of the United States.—“If a minister from the republic of France shall be received, shall it be absolutely, or with qualifications; and if with qualifications, of what kind?”
It is conceived to be advisable that the reception of the expected minister from the republic of France should be qualified by a previous declaration, substantially to this effect: “That the Government of the United States, uniformly entertaining cordial wishes for the happiness of the French nation, and disposed to maintain an amicable communication and intercourse, uninterrupted by political vicissitudes, does not hesitate to receive him in the character which his credentials import; yet, considering the origin, course, and circumstances of the relations originally contracted between the two countries, and the existing position of the affairs of France, it is deemed advisable and proper, on the part of the United States, to reserve to future consideration and discussion the question—whether the operation of the treaties by which those relations were formed, ought not to be deemed temporarily and provisionally suspended; and under this impression, it is thought due to a spirit of candid and friendly procedure to apprise him beforehand of the intention to reserve that question, lest silence on the point should occasion misconstruction.”
The grounds of this opinion are as follow:
The treaties between the United States and France were made with His Most Christian Majesty, his heirs and successors. The government of France which existed at the time those treaties were made, gave way, in the first instance, to a new constitution, formed by the representatives of the nation, and accepted by the king, which went into regular operation. Of a sudden a tumultuous rising took place. The king was seized, imprisoned, and declared to be suspended by the authority of the National Assembly, a body delegated to exercise the legislative functions of the already established government—in no shape authorized to divest any other of the constituted authorities of its legal capacities or powers. So far, then, what was done was a manifest assumption of power.
To justify it, it is alleged to have been necessary for the safety of the nation, to prevent the success of a counter-revolution meditated or patronized by the king.
On the other side, it is affirmed that the whole transaction was merely the execution of a plan which had been for some time projected, and had been gradually ripening, to bring about an abolition of the royalty and the establishment of a republican government.
No satisfactory proof is known to have been produced to fix upon the king the charges which have been brought against him.
On the other hand, declarations have escaped from characters who took a lead in the measure of suppressing the royalty, which seem to amount to a tacit acknowledgment that the events of the 10th of August were the result of a premeditated plan of the republican party to get rid of the monarchical power, rather than a necessary counteraction of mischievous designs on the part of the king.
Mr. De Malsherbes, one of the counsel of the king, makes this striking reflection on the point.
The events of the 10th of August were followed on the 2d and 3d of September with the massacre of a great number of persons in different parts of France, including several distinguished individuals who were known to be attached either to the ancient government, or to the constitution which had succeeded to it.
The suspension of the king was accompanied by a call upon the primary assemblies to depute persons to represent them in a convention, in order to the taking of such measures as the exigency of the conjuncture might require.
Under circumstances not free from precipitation, violence, and awe, deputies to a national convention were chosen. They assembled on the 17th of September, 1792, at Paris, and on the very day of their meeting decreed the abolition of royalty.
They proceeded in the next place to organize a temporary provisional government, charged with managing the affairs of the nation till a constitution should be established.
As a circumstance that gives a complexion to the course of things, it is proper to mention that the Jacobin Club at Paris (a society which, with its branches in different parts of France, appears to have had a prevailing influence over the affairs of the country), previous to the meeting of the convention, entered into measures with the avowed object of purging the convention of those persons, favorers of royalty, who might have escaped the attention of the primary assemblies.
In the last place, the late king of France has been tried and condemned by the convention, and has suffered death.
Whether he has suffered justly or unjustly, whether he has been a guilty tyrant or an unfortunate victim, is at least a problem. There certainly can be no hazard in affirming that no proof has yet come to light sufficient to establish a belief that the death of Louis is an act of national justice.
It appears to be regarded in a different light throughout Europe, and by a numerous and respectable part, if not by a majority, of the people of the United States.
Almost all Europe is or seems likely to be armed in opposition to the presentrulers of France, with the declared or implied intention of restoring, if possible, the royalty in the successor of the deceased monarch.
The present war, then, turns essentially on the point—What shall be the future government of France? Shall the royal authority be restored in the person of the successor of Louis, or shall a republic be constituted in exclusion of it?
Thus stand the material facts which regard the origin of our connections with France, and the obligations or dispensations that now exist.
They have been stated, not with a view to indicate a definitive opinion concerning the propriety of the conduct of the present rulers of France, but to show that the course of the revolution there has been attended with circumstances, which militate against a full conviction of its having been brought to its present stage by such a free, regular, and deliberate act of the nation, and with such a spirit of justice and humanity, as ought to silence all scruples about the validity of what has been done, and the morality of aiding it, if consistent with policy.
This great and important question arises out of the facts which have been stated:
Are the United States bound, by the principles of the laws of nations, to consider the treaties heretofore made with France as in present force and operation between them and the actual governing powers of the French nation? or may they elect to consider their operation as suspended, reserving also a right to judge finally whether any such changes have happened in the political affairs of France as may justify a renunciation of those treaties?
It is believed that they have an option to consider the operation of those treaties as suspended, and will have eventually a right to renounce them, if such changes shall take place as can bona fide be pronounced to render a continuance of the connections which result from them disadvantageous or dangerous.
There are two general propositions which may be opposed to this opinion:—1st. That a nation has a right, in its own discretion, to change its form of government—to abolish one, and substitute another. 2d. That real treaties (of which description those in question are) bind the nations whose governments contract, and continue in force notwithstanding any changes which happen in the forms of their government.
The truth of the first proposition ought to be admitted in its fullest latitude. But it will by no means follow, that, because a nation has a right to manage its own concerns as it thinks fit, and to make such changes in its political institutions as itself judges best calculated to promote its interests, it has therefore a right to involve other nations, with whom it may have had connections, absolutely and unconditionally, in the consequences of the changes which it may think proper to make. This would be to give to a nation or society not only a power over its own happiness, but a power over the happiness of other nations or societies. It would be to extend the operation of the maxim much beyond the reason of it, which is simply, that every nation ought to have a right to provide for its own happiness.
If, then, a nation thinks fit to make changes in its government, which render treaties that before subsisted between it and another nation useless, or dangerous, or hurtful to that other nation, it is a plain dictate of reason, that the latter will have a right to renounce those treaties; because it also has a right to take care of its own happiness, and cannot be obliged to suffer this to be impaired by the means which its neighbor or ally may have adopted for its own advantage, contrary to the ancient state of things.
But it may be said, that an obligation to submit to the inconveniences that may ensue arises from the other maxim which has been stated—namely, that real treaties bind nations, notwithstanding the changes which happen in the forms of their governments.
All general rules are to be construed with certain reasonable limitations. That which has been just mentioned must be understood in this sense,—that changes in forms of government do not of course abrogate real treaties; that they continue absolutely binding on the party which makes the change, and will bind the other party, unless, in due time and for just cause, he declares his election to renounce them; that in good faith he ought not to renounce them, unless the change which happened does really render them useless, or materially less advantageous, or more dangerous than before. But for good and sufficient cause he may renounce them.
Nothing can be more evident than that the existing forms of government of two nations may enter far into the motives of a real treaty. Two republics may contract an alliance, the principal inducement to which may be a similarity of constitutions, producing a common interest to defend their mutual rights and liberties. A change of the government of one of them into a monarchy or despotism may destroy the inducement and the main link of common interest. Two monarchies may form an alliance on a like principle, their common defence against a powerful neighboring republic. The change of the government of one of the allies may destroy the source of common sympathy and common interest, and render it prudent for the other ally to renounce the connection and seek to fortify itself in some other quarter.
Two nations may form an alliance because each has confidence in the energy and efficacy of the government of the other. A revolution may subject one of them to a different form of government—feeble, fluctuating, and turbulent, liable to provoke wars, and very little fitted to repel them. Even the connections of a nation with other foreign powers may enter into the motives of an alliance with it. If a dissolution of ancient connections shall have been a consequence of a revolution of government, the external political relations of the parties may have become so varied as to occasion an incompatibility of the alliance with the Power which had changed its constitution with the other connections of its ally—connections perhaps essential to its welfare.
In such cases, reason, which is the touchstone of all similar maxims, would dictate that the party whose government had remained stationary would have a right, under a bona-fide conviction that the change in the situation of the other party would render a future connection detrimental or dangerous, to declare the connection dissolved.
Contracts between nations as between individuals must lose their force where the considerations fail.
A treaty pernicious to the state is of itself void, where no change in the situation of either of the parties takes place. By a much stronger reason it must become voidable at the option of the other party, when the voluntary act of one of the allies has made so material a change in the condition of things as is always implied in a radical revolution of government.
Moreover, the maxim in question must, I presume, be understood with this further limitation—that the revolution be consummated—that the new government be established, and recognized among nations—that there be an undisputed organ of the national will to obtain the performance of the stipulations made with the former government.
It is not natural to presume that an ally is obliged to throw his weight into either scale, where the war involves the very point—what shall be the government of the country; and that, too, against the very party with whom the formal obligations of the alliance have been contracted.
It is more natural to conclude, that in such a case the ally ought either to aid the party with whom the contract was immediately made, or to consider the operation of the alliance as suspended. The latter is undoubtedly his duty, rather than the former, where the nation appears to have pronounced the change.
A doctrine contrary to that here supported may involve an opposition of moral duties, and dilemmas of a very singular and embarrassing kind.
A nation may owe its existence or preservation entirely, or in a great degree, to the voluntary succors which it derived from a monarch of a country—the then lawful organ of the national will, the director of its sword and its purse, the dispenser of its aid and its favors. In consideration of the good offices promised or afforded by him, an alliance may have been formed between the monarch, his heirs and successors, and the country indebted to him for those good offices—stipulating future co-operation and mutual aid. This monarch, without any particular crime on his part, may be afterwards deposed and expelled by his nation, or by a triumphant faction, which may, perhaps, momentarily direct the nation’s voice. He may find in the assistance of neighboring powers friendly to his cause the means of endeavoring to reinstate himself.
In the midst of his efforts to accomplish this purpose, the ruling powers of the nation over which he had reigned call upon the country which had been saved by his friendship and patronage, to perform the stipulations expressed in the alliance made with him, and embark in a war against their friend and benefactor—on the suggestion, that the treaty being a real one, the actual rulers of the nation have a right to claim the benefit of it.
If there be no option in such case, would there not be a most perplexing conflict of opposite obligations?—of the faith supposed to be plighted by the treaty, and of justice and gratitude toward a man from whom essential benefits had been received, and who could oppose the formal and express terms of the contract to an abstract theoretic proposition? Would genuine honor, would true morality permit the taking a hostile part against the friend and benefactor, being at the same time the original party to the contract?
Suppose the call of the actual rulers to be complied with, and the war to have been entered into by the ally. Suppose the expelled monarch to have re-entered his former dominions, and to have been joined by one half of his former subjects—how would the obligation then stand? He will now have added to the title of being the formal party to the contract, that of being the actual possessor of one half the country and of the wishes of one half the nation.
Is it supposable that in such a case the obligations of the alliance can continue in favor of those by whom he had been expelled? or would they then revert again to the monarch? or would they fluctuate with the alternations of good and ill fortune attending the one or the other party? Can a principle which would involve such a dilemma be true? Is it not evident that there must be an option to consider the operation of the alliance as suspended during the contest concerning the government—that, on the one hand, there may not be a necessity of taking part with the expelled monarch against the apparent will of the nation, or, on the other, a necessity of joining the ruling powers of the moment against the immediate party with whom the contract was made, and from whom the consideration may have flowed?
If the opinions of writers be consulted, they will, as far as they go, confirm the sense of the maxim which is here contended for.
Grotius, while he asserts the general principle of the obligation of real treaties upon nations, notwithstanding the changes in their governments, admits the qualification which has been insisted upon, and expressly excepts the case where it appears that the motive to the treaty was “peculiar to the form of government, as when free states enter into an alliance for the defence of their liberties.”—Book Ⅱ., Chap. ⅩⅥ., § 16, No. 1.
And Vatel, who is the most systematic of the writers on the laws of nations, lays down the qualification in the greatest latitude. To give a correct idea of his meaning, it will be of use to transcribe the entire section. It is found in Book Ⅱ., Ch. ⅩⅡ., § 197.
“What is the obligation of a real alliance, when the king, who is the ally, is driven from the throne?
“The same question,” says he (to wit, that stated above), “presents itself in real alliances made, and in general in all alliances made with the state, and not in particular with a king for the defence of his person. An ally ought doubtless to be defended against every invasion, against every foreign violence, and even against his rebellious subjects; in the same manner, a republic ought to be defended against the enterprises of one who attempts to destroy the public liberty. But it ought to be remembered that an ally of the state or the nation is not its judge. If the nation has deposed its king in form—if the people of a republic have driven out their magistrates and set themselves at liberty, or acknowledged the authority of a usurper, either expressly or tacitly, to oppose these domestic regulations by disputing their justice or validity would be to interfere with the government of a nation, and do it an injury. The ally remains the ally of the state, notwithstanding the change which has happened in it. However, when this change renders the alliance useless, dangerous, or disagreeable, it may renounce it; for it may say, upon a good foundation, that it would not have entered into an alliance with that nation had it been under the present form of government.”
It is not perceived that there is any ambiguity of expression, or any other circumstance, to throw the least obscurity upon the sense of the author. The precise question he raises is: What is the obligation of a real alliance, when the king, who is the ally, is driven from the throne? He concludes, after several intermediate observations, that the ally remains the ally of the State, notwithstanding the change which has happened. Nevertheless, says he, when the change renders the alliance useless, dangerous, or disagreeable, it may be renounced.
It is observable, that the question made by writers always is, whether, in a real alliance, when the king who is the ally is deposed, the ally of the deposed king is bound to succor and support him. And though it is decided by the better opinions, as well as by the reason of the thing, that there is not an obligation to support him against the will of the nation, when his dethronement is to be ascribed to that source, yet there is never a single suggestion, on the other hand, of the ally of such dethroned king being obliged to assist his nation against him. The most that appears to be admitted in favor of the decision of the nation is, that there is no support due to the dethroned prince.
Puffendorf puts this matter upon very proper grounds. Referring to the opinion of Grotius, who with too much latitude lays it down, “that a league made with a king is valid, though that king or his successors be expelled the kingdom by his subjects, for though he has lost his possession, the right to the crown still remains in him,” he makes the following observation: “To me, so much in this case seems to be certain, that if the terms of the league expressly mention and intend the defence of the prince’s person and family, he ought to be assisted in the recovery of his kingdom. But if the league was formed for public good only, ’t is a disputable point whether the exiled prince can demand assistance in virtue of his league. For the aids mentioned are presumed to have been promised against foreign enemies, without view of this particular case. Not but that still such a league leaves liberty to assist a lawful prince against a usurper.”
The presumption here stated is a natural and proper one, and in its reason applies to both sides—to the exiled prince who should demand succors against his nation, and to the nation who, having dethroned its prince, should demand succor to support the act of dethronement and establish the revolution. The ally in such case is not bound to come in aid of either party, but may consider the operation of the alliance as suspended till the competition about the government is decided.
What a difference is there between asserting it to be a disputable point, whether the ally of a dethroned prince, in the case of a real treaty, is not bound to assist him against the nation, and maintaining that the ally is bound at all events to assist the nation against him! For this is the consequence of asserting that such a treaty ipso facto attaches itself to the body of the nation, even in the course of a pending revolution, and without option either to suspend or renounce.
If the practice of nations be consulted, neither will that be found to confirm the proposition, that the obligation of real treaties extends unconditionally to the actual governors of nations, whatever changes take place. In the books which treat on the subject, numerous examples of the contrary are quoted. The most prevailing practice has been to assist the ancient sovereign. In the very instance to which this discussion relates, this is the course which a great part of Europe directly or indirectly pursues.
It may be argued by way of objection to what has been said, that admitting the general principle of a right for sufficient cause to renounce, yet still, as the change in the present case is from a monarchy to a republic, and no sufficient excuse hitherto exists for a renunciation, the possibility of its arising hereafter in the progress of events, does not appear a valid reason for resorting to the principle in question. To this the answer is, that no government has yet been instituted in France in lieu of that which has been pulled down; that the existing political powers are, by the French themselves, denominated provisional, and are to give way to a constitution to be established.
It is therefore impossible to foresee what the future government of France will be; and in this state of uncertainty, the right to renounce resolves itself into, of course, a right to suspend. The one is a consequence of the other; applicable to the undetermined state of things. If there be a right to renounce when the change of government proves to be of a nature to render an alliance useless or injurious there must be a right, amidst a pending revolution, to wait to see what change will take place.
Should it be said that the treaty is binding now, no objectionable change having yet taken place, but may be renounced hereafter, if any such change shall take place:
The answer is, that it is not possible to pronounce at present what is the quality of the change. Every thing is in transitu. This state of suspense, as to the object of option, naturally suspends the option itself. The business may, in its progress, assume a variety of forms. If the issue may not be waited for, the obligations of the country may fluctuate indefinitely—be one thing to-day, another to-morrow; a consequence which is inadmissible.
Besides, the true reasoning would seem to be that to admit the operation of the treaties, while the event is pending, would be to take the chance of what that event shall be, and would preclude a future renunciation.
Moreover, the right to consider the operation of the treaties as suspended, results from this further consideration, that during a pending revolution, an ally in a real treaty is not bound to pronounce between the competitors.
The conclusion from the whole is, that there is an option in the United States to hold the operation of the treaties suspended; and that in the event, if the form of government established in France shall be such as to render a continuance of the treaties contrary to the interests of the United States, they may be renounced.
If there be such an option, there are strong reasons to show that the character and interests of the United States require, that they should pursue the course of holding the operation of the treaties suspended.
Because it was from Louis ⅩⅥ., the then sovereign of the country, that they received those succors which were so important in the establishment of their independence and liberty. It was with him, his heirs, and successors, that they contracted their engagements—by which they obtained those precious succors.
It is enough, on their part, to respect the right of the nation to change its government, so far as not to side with the successors of the dethroned prince; as to receive their ambassador, and keep up an amicable intercourse; as to be willing to render every good office, not contrary to the duties of a real neutrality.
To throw their weight into the scale of the new government would, it is to be feared, be considered by mankind as not consistent with a decent regard to the relations which subsisted between them and Louis ⅩⅥ.; as not consistent with a due sense of the services they received from that unfortunate prince; as not consistent with national delicacy and decorum.
The character of the United States may also be concerned in keeping clear of any connection with the present government of France in other views.
A struggle for liberty is in itself respectable and glorious; when conducted with magnanimity, justice, and humanity, it ought to command the admiration of every friend to human nature; but if sullied by crimes and extravagances, it loses its respectability. Though success may rescue it from infamy, it cannot, in the opinion of the sober part of mankind, attach to it much positive merit or praise. But in the event of a want of success, a general execration must attend it.
It appears, thus far, but too probable, that the pending revolution of France has sustained some serious blemishes. There is too much ground to anticipate that a sentence uncommonly severe will be passed upon it if it fails.
Will it be well for the United States to expose their reputation to the issue, by implicating themselves as associates? Will their reputation be promoted by a successful issue? What will it suffer by the reverse?
These questions suggest very serious considerations to a mind anxious for the reputation of the country—anxious that it may emulate a character of sobriety, moderation, justice, and love of order.
The interest of the United States seems to dictate the course recommended, in many ways:
- I. In reference to their character, from the considerations already stated.
- II. In reference to their peace.
As the present treaties contain stipulations of military succors and military aids, in certain cases which are likely to occur, there can be no doubt, that if there be an option to consider them as not binding, as not in operation, the considering them as binding, as in operation, would be equivalent to making new treaties of similar import; and it is a well-settled point, that such stipulations entered into, pending a war, or with a view to a war, is a departure from neutrality.
How far the parties opposed to France may think fit to treat us as enemies, in consequence of this, is a problem which experience only can solve; the solution of which will probably be regulated by their views of their own interest—by the circumstances which may occur; and it is far from impossible that these will restrain them, so long as we, in fact, take no active part in favor of France.
But if there be an option to avoid it, it can hardly be wise to incur so great an additional risk and embarrassment, to implicate ourselves in the perplexities which may follow.
With regard to the good effect of the conduct which is advocated upon the Powers at war with France, nothing need be said.
Even considering our interest with reference to France herself, some reasons may be urged in favor of considering the treaties as suspended.
It seems to be the general if not the universal sentiment, that we ought not to embark in the war.
Suppose the French islands attacked, and we called upon to perform the guaranty. To avoid complying with it, we must either say: That the war being offensive on the part of France, the casus fÆderis does not exist; or, that as our co-operation would be useless to the object of the guaranty, and attended with more than ordinary danger to ourselves, we cannot afford it.
Would the one or the other be satisfactory to France?
The first would probably displease—the last would not please. It is, moreover, the most questionable and the least reputable of all the objections which a nation is allowed to oppose to the performance of its engagements. We should not, therefore, be much more certain of avoiding the displeasure of the present ruling powers of France, by considering the treaties as in operation, than by considering their operation as suspended; taking it for granted that we are in either case to observe a neutral conduct in fact.
But suppose the contest unsuccessful on the part of the present governing powers of France, what would then be our situation with the future government of that country?
Should we not be branded and detested by it as the worst of ingrates?
When it is added, that the restoration of the monarchy would be very naturally attributed to the interposition of Great Britain, the reflection just suggested acquires peculiar weight and importance.
But against this may be placed the consideration, that in the event of the success of the present governing powers, we should stand on much worse ground, by having considered the operation of the treaties as suspended, than by having pursued a contrary conduct.
This is not clear, for the reasons just given; unless we are also willing, if called upon, to become parties in the war. But admitting that the course of considering the treaties as in present operation would give us a claim of merit with France, in the event of the establishment of the republic, our affairs with that country would not stand so much the better on this account, as they would stand worse for giving operation to the treaties, should the monarchy be restored.
We should still have to offer a better claim to the friendship of France than any other Power—the not taking side with her enemies, the early acknowledgment of the republic by the reception of its minister, and such good offices as have been and may be rendered, consistently with a sincere neutrality.
The reasons, too, which induced us not to go further, will have their due weight in times that shall restore tranquillity and moderation and sober reflection! They will justify us even to France herself.
Is there not, however, danger that a refusal to admit the operation of the treaties might occasion an immediate rupture with France?
A danger of this sort cannot be supposed, without supposing such a degree of intemperance on the part of France as will finally force us to quarrelwith her or to embark with her. And if such be her temper, a fair calculation of hazards will lead us to risk her displeasure in the first instance. An inquiry naturally arises of this kind: Whether from the nature of the treaties they have any such intrinsic value as to render it inexpedient to put them in jeopardy by raising a question about their operation or validity?
Here, it may freely be pronounced, there is no difficulty. The military stipulations they contain are contrary to that neutrality in the quarrels of Europe, which it is our true policy to cultivate and maintain. And the commercial stipulations to be found in them present no peculiar advantages.
They seem to us nothing or scarcely any thing which an inevitable course of circumstances would not produce. It would be our interest, in the abstract, to be disengaged from them, and take the chance of future negotiation, for a better treaty of commerce.
It might be observed, by way of objection to what has been said, that an admission of the operation of the treaties has been considered as equivalent to taking part with France.
It is true that the two things have been considered as equivalent to each other, and in strict reasoning this ought to be the case.—Because,
- 1. If there be an option, the effect of not using it would be to pass from a state of neutrality to that of being an ally—thereby authorizing the Powers at war with France to treat us as an enemy.
- 2. If under the operation of the treaties we are not bound to embark in the war, it must be owing either to casualty or inability.
If the war is not offensive on the part of France, an attack on the West India Islands would leave us no escape but in the plea of inability.
The putting ourselves in a situation, in which it might so happen that we could preserve our neutrality under no other plea than that of inability, is, in all the politico-legal relations of the subject, to make ourselves a party. In other words, the placing ourselves in a position in which it would depend on casualty whether it would not become our duty to engage in the war, ought, in a general question of establishing or recognizing a political relation with a foreign Power embarked in war, to be regarded in the same light as the taking part with that Power in the war.
To do a thing, or to contract or incur an obligation of doing it, are not in such a question materially different.
There remain some miscellaneous views of the subject, which will serve to fortify the general reasoning
- I. The conduct of the present government of France gives a sanction to other nations to use some latitude of discretion in respect to their treaties with the former government. That government, it is understood, has formally declared null various stipulations of the ancient government with foreign Powers, on the principle of their in applicability to the new order of things. Were it to be urged, that an erroneous conduct on the part of France will not justify a like conduct on our part, it might be solidly replied, that a rule of practice formally adopted by any nation for regulating its political obligations towards other nations, may justly be appealed to as a standard for regulating the obligations of those nations toward her. Suppose this general ground to have been explicitly taken by France, that all treaties made by the old government became void by the Revolution, unless recognized by the existing authority, can it be doubted that every other nation would have had a right to adopt the same principle of conduct towards France? It cannot. By parity of reasoning, as far as France may in practice have pursued that principle, other nations may justifiably plead the example.
- II. In addition to the embarrassments heretofore suggested as incident to the admission of the present operation of the treaties, this very particular one may attend our case. An island may be taken by Great Britain, or Holland, with the avowed intention of holding it for the future king of France, the successor of Louis ⅩⅥ. Can it be possible that a treaty made with Louis ⅩⅥ. should oblige us to embark in the war to rescue a part of his dominions from his immediate successor? Under all the circumstances of the case, would the national integrity of delicacy permit it? Was it clear that Louis merited his death as a perfidious tyrant, the last question might receive a different answer from what can now be given to it!Ought the United States to involve themselves in a dilemma of this kind?
- III. In national questions, the general conduct of nations has great weight. When all Europe is, or is likely to be, armed in opposition to the authority of the present government of France, would it not be to carry theory to an extreme, to pronounce that the United States are under an absolute, indispensable obligation, not only to acknowledge respectfully the authority of that government, but to admit the immediate operation of treaties, which would constitute them at once its ally?
- IV. Prudence, at least, seems to dictate the course of reserving the question in order that further reflection and a more complete development of circumstances shall enable us to make a decision both right and safe. It does not appear necessary to precipitate the fixing of our relations to France beyond the possibility of retraction. It is putting too suddenly too much to hazard.
It may be asked—Does not an unqualified reception of the minister determine the point?
Perhaps it does not; yet there is no satisfactory guide by which to decide the precise import and extent of such a reception by which to pronounce that it would not conclude us as to the treaties. There is great room to consider the epoch of receiving a minister from the republic as that whenwe ought to explain ourselves on the point in question—and silence at that time as a waiver of our option.
It is probable that on the part of France it will be urged to have this effect; and if it should be truly so considered by her, to raise the question afterwards would lead to complaint, accusation, ill humor.
It seems most candid and most safe to anticipate—not to risk the imputation of inconsistency. It seems advisable to be able to say to foreign Powers, if questioned: “In receiving the minister of France, we have not acknowledged ourself its ally. We have reserved the point for future consideration.”
It may be asked, whether the reception, at any rate, is not inconsistent with the reservation recommended.
It does not appear to be so. The acknowledgment of a government by the reception of its ambassador, and the acknowledgment of it as an ally, are things different and separable from each other. However, the first, where a connection before existed between the two nations, may imply the last, if nothing is said; this implication may clearly be repelled, by a declaration that it is not the intention of the party. Such a declaration would be in the nature of a protest against the implication; and the declared intent would govern. It is a rule that “expressum facit cessare tacitum.”
It may likewise be asked whether we are not too late for the ground proposed to be taken—whether the payment on account of the debt to France, subsequent to the last change, be not an acknowledgment that all engagements to the former government are to be fulfilled to the present.
The two objects of a debt in money, and a treaty of alliance, have no necessary connection. They are governed by considerations altogether different and irrelative.
The payment of a debt is a matter of perfect and strict obligation. It must be done at all events. It is to be regulated by circumstances of time and place, and ought to be done with precise punctuality.
In the case of a nation, whoever acquires possession of its political power, whoever becomes master of its goods, of the national property, must pay all the debts which the government of the nation has contracted.
In like manner, on the principle of reciprocity, the sovereign in possession is to receive the debts due to the government of the nation. These debts are at all events to be paid; and possession alone can guide as to the party to whom they are to be paid.
Questions of property are very different from those of political connection.
Nobody can doubt that the debt due to France is at all events to be paid, whatever form of government may take place in that country.
As little is it be doubted, that it is possible for a form of government to take place in France, justifying the dissolution of a political connection which before subsisted with that country.
Treaties between nations are capable of being affected by a great variety of considerations, casualities, and contingencies. Forms of government, it is evident, may be the considerations of them. Revolutions of government, by changing those forms, may consequently vary the obligations of parties.
Hence the payment of a debt to the sovereign in possession does not imply an admission of the present operation of political treaties. It may so happen, that there is a strict obligation to pay the debt, and a perfect right to withdraw from the treaties.
And while we are not bound to expose ourselves to the resentment of the governing power of France, by refusing to pay a debt at the time and place stipulated; so neither are we bound, pending a contested revolution of government, to expose ourselves to the resentment of other nations, by declaring ourselves the ally of that power, in virtue of treaties contracted with a former sovereign, who still pursues his claim to govern, supported by the general sense and arm of Europe.
6. Hamilton to Washington, May 2, 1793
Source: Alexander Hamilton, The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 4.
Accessed from http://app.libraryofliberty.org/title/1381/64393
hamilton to washington
May 2, 1793.
Answers to remaining questions proposed by the President of the United States on the 18th of April last
Question 4.—Are the United States obliged by good faith to consider the treaties heretofore made with France as applying to the present situation of the parties? May they either renounce them or hold them suspended till the government of France shall be established?
Answer.—The war is plainly an offensive war on the part of France. Burlemaqui, an approved writer, Vol. Ⅱ., Part Ⅳ., Chapter Ⅲ., sec. 4 and 5, thus defines the different species of war: “Neither are we to believe (says he) that he who first injures another begins by that an offensive war, and that the other, who demands satisfaction for the injury received, is always upon the defensive. There are a great many unjust acts which may kindle a war, and which, however, are not the war, as the ill treatment of a prince’s ambassador, the plundering of his subjects, etc.
“If, therefore, we take up arms to revenge such an unjust act, we commence an offensive but a just war; and the prince who has done the injury, and will not give satisfaction, makes a defensive but an unjust war. An offensive war is, therefore, unjust only when it is undertaken without a lawful cause; and then the defensive war, which on other occasions might be unjust, becomes just.
“We must, therefore, affirm in general, that the first who takes up arms, whether justly or unjustly, commences an offensive war; and he who opposes him, whether with or without reason, begins a defensive war.”
This definition of offensive and defensive war is conformable to the ideas of writers on the laws of nations in general, and is adopted almost verbatim by Barbeyrac, in his notes on Ⅲ. and Ⅳ. of Book Ⅶ., Chap. Ⅵ., Puffendorf’s Law of Nature and Nations.
France, it is certain, was the first to declare war against every one of the Powers with which she is at war. Whether she had good cause or not, therefore, in each instance, the war is completely offensive on her part.
The forms which she has employed in some of her declarations (when, after reciting the aggressions she alleges to have been committed against her by a particular Power, she proceeds to pronounce that war exists between her and such Power) cannot alter the substance of the thing. The aggressions complained of, if ever so well founded, and however they may have been of a nature to kindle the war, were not the war itself. The war began, in each case, by the declaration and by the commencement of hostilities on the part of France. It was, therefore, clearly offensive on her part.
With regard to the causes that led to the war in each case, it requires more exact information than I have to pronounce upon them with confidence. As regards Austria and Prussia, the suggestion on one hand is, that a combination was formed to overthrow the new constitution of France, and that the declaration on the part of the latter country was only an anticipation of what would soon have proceeded from the confederated Powers. On the other hand, it is affirmed that the preparations and arrangements on their part were merely provisional and eventual, and that the republican party in France precipitated a war under the idea that it would furnish opportunities for accusing and criminating the king’s administration, and finally overthrow the royalty. Waiving all definitive opinion on this point, better guides will enable us to pronounce with more certainty in the other cases.
In respect to Holland, there seems to be no doubt that the aggression began with France.
France, in different treaties, had recognized a right in the Dutch to the exclusive navigation of the river Scheldt.
It appears that she had a leading agency in adjusting a controversy on this point, between the late Emperor Joseph and the Netherlands.
The 28th article of a treaty between those parties, concluded at Fontainebleau the 8th of November, 1785, is in these words:
“His most Christian Majesty contributed to the completion of the arrangement made between the high contracting parties (namely, the Emperor and the States General), by his friendly intervention and his effectual and just mediation. His said Majesty is requested by the high contracting parties to charge himself likewise with being the guaranty of the present treaty.”
Nevertheless, the provisionary Executive Council, by a decree of the 16th of November, 1792, break through all these formal and express engagements, on the pretext of their being contrary to natural right, and declare the navigation of the Scheldt and Meuse free.
Such an infraction of treaties, on such a ground, cannot be justified without subverting all the foundations of positive and pactitious right among nations. It is equally agreeable to the doctrine of theorists, and to the practice of nations, that rights to the common use of waters of the description in question, may be relinquished and qualified by treaty. To resume them, therefore, on the ground of the imprescriptibility, as it is called, of natural rights, is to set up a new rule of conduct, contrary to the common sense and common practice of mankind, amounting, in the party which attempts the resumption, to an unequivocal injury to the party against which it is attempted.
In respect to Great Britain the case is not equally clear; but there is sufficient ground to pronounce, that she had cause of complaint, prior to any given on her part.
It is known that in the early periods of the French Revolution she adopted the ground of neutrality, and nothing is alleged against her till after the 10th of August.
That event led her to withdraw her minister from the court of France; but before his departure, he left a note declarative of the intention of Great Britain to pursue still a pacific course, accompanied, indeed, with a cautious intimation that personal violence to the king would excite the general indignation of Europe.
But it will hardly be affirmed that this procedure amounted to an aggression. To recall a minister from, or not to keep one at, any court, is of itself an act of indifference. To recall, under such circumstances as took place on the 10th of August, was not an extraordinary step. Every government had a right to deliberate, and was bound for its own safety to consider well, when it would recognize a new order of things. The keeping of a minister at France, after the deposition of the king, might be deemed a sanction of the change, and, indeed, was useless, until it was intended to give that sanction.
It was not therefore incumbent upon any Power to pursue this course, especially one which was not in the condition of an ally.
The intimation with regard to the king, to characterize it in the most exceptionable light, was at most an act of officiousness. Relating to a thing not at the time in agitation, it could only be considered as a caution to avoid a measure which might beget misunderstanding.
The conduct of France shows that she did not at the time consider this step as an injury, for she continued a minister at the court of London, and continued to negotiate.
The next step of Great Britain in order of time, which is complained of by France, and the first of a really hostile complexion, is the restriction on the exportation of corn to France, by way of exception to a general permission to export that article.
This was an unfriendly measure. It happened, as far as I am able to trace it, in the latter part of December, 1792.
But prior to these causes of dissatisfaction, an alarm had been given by France to Great Britain
The Convention, on the 19th of November, passed a decree in these words:
“The National Convention declare, in the name of the French nation, that they will grant fraternity and assistance to every people who wish to recover their liberty; and they charge the executive power to send the necessary orders to the generals to give assistance to such people, and to defend those citizens who may have been or who may be vexed for the cause of liberty.” Which decree was ordered to be printed in all languages.
This decree ought justly to be regarded in an exceptionable light by the government of every country. For though it be lawful and meritorious to assist a people in a virtuous and rational struggle for liberty, when the particular case happens, yet it is not justifiable in any government or nation to hold out to the world a general invitation and encouragement to revolution and insurrection, under a promise of fraternity and assistance.
Such a step is of a nature to disturb the repose of mankind, to excite fermentation in every country, to endanger government everywhere. Nor can there be a doubt that wheresoever a spirit of this kind appears, it is lawful to repress and repel it.
But this generally exceptionable proceeding might be looked upon by Great Britain as having a more particular reference to her, from some collateral circumstances.
It is known that various societies were instituted in Great Britain with the avowed object of reforms in the government. These societies presented addresses to the Convention of France, and received answers, containing an interchange of sentiments justly alarming to the British Government.
It will suffice, by way of illustration, to cite passages from two of these answers, each given by the President of the Convention, at a sitting on the 28th of November: one, to a deputation from the Society for Constitutional Information in London; the other, to a deputation of English and Irish citizens at Paris.
“The shades of Penn, of Hampden, and of Sydney hover over your heads, and the moment without doubt approaches in which the French will bring congratulations to the National Convention of Great Britain.
“Nature and principles draw towards us England, Scotland, and Ireland. Let the cries of friendship resound through the two republics. Again principles are waging war against tyranny, which will fall under the blows of philosophy. Royalty in Europe is either destroyed or on the point of perishing on the ruins of feodalty; and the declaration of rights placed by the side of thrones is a devouring fire which will consume them. Worthy Republicans,” etc.
Such declarations to such societies are a comment upon the decree, are in every sense inconsistent with what was due to a just respect for a neutral nation, and amounted to so direct a patronage of a revolution, in the essential principles of its government, as authorized even a declaration of war.
It is true that Mr. Chauvelin, in a note to Lord Grenville, of the 27th of December, 1792, declares that the “National Convention never meant that the French Republic should favor insurrections, should espouse the quarrels of a few seditious persons, or should endeavor to excite disturbances in any neutral or friendly country; the decree being only applicable to a people who, after having acquired their liberty, should call for the fraternity, the assistance of the Republic, by the solemn and unequivocal expression of the general will.”
But this explanation could not change the real nature and tendency of the decree, which, holding out a general promise of fraternity and assistance to every people who wished to recover their liberty, did favor insurrections, and was calculated to excite disturbances in neutral and friendly countries.
Still less could it efface the exceptionable and offensive nature of the reception which was given, and the declarations which were made, to the revolutionary or reforming societies of Great Britain.
The answer of Lord Grenville very justly observes, that “Neither satisfaction nor security is found in the terms of an explanation which still declares to the promoters of sedition in every country, what are the cases in which they may count beforehand on the support and succor of France, and which reserves to that country the right of mixing herself in the internal affairs of another, whenever she shall judge it proper, and on principles incompatible with the political institutions of all the countries of Europe.”
Besides the declarations which have been mentioned to the different English societies, and which apply particularly to Great Britain, there are other acts of France which were just causes of umbrage and alarm to all the governments of Europe.
Her decree of the 15th of December is one of them. This decree, extraordinary in every respect, which contemplates the total subversion of all the ancient establishments of every country into which the arms of France should be carried, has the following article:
“The French nation declare—That it will treat as enemies the people who, refusing or renouncing liberty and equality, are desirous of preserving their prince and privileged casts, or of entering into an accommodation with them. The nation promises and engages not to lay down its arms until the sovereignty and liberty of the people, on whose territories the French armies shall have entered, shall be established, and not to consent to any arrangement or treaty with the prince and privileged persons so dispossessed, with whom the republic is at war.”
This decree cannot but be regarded as an outrage little short of a declaration of war against every government of Europe, and as a violent attack upon the freedom of opinion of all mankind.
The incorporation of the territories conquered by the arms of France with France herself, is another of the acts alluded to, as giving just cause of umbrage and alarm to neutral nations in general. It is a principle well established by the laws of nations, that the property and dominion of conquered places do not become absolute in the conquerors, until they have been ceded or relinquished by a treaty of peace or some equivalent termination of the war.
Till then it is understood to be in a state of suspense (the conqueror having only a possessory and qualified title), liable to such a disposition as may be made by the compact which terminates the war. Hence the citizen of the neutral nation can acquire no final or irrevocable title to land by purchase of the conqueror during the continuance of the war. This principle, it is evident, is of the greatest importance to the peace and security of nations—greatly facilitating an adjustment of the quarrels in which they happen at any time to be involved.
But the incorporation which has been mentioned, and which actually took place with respect to the territories of different Powers, Savoy, Antwerp, etc., was a direct violation of that very important and fundamental principle; and of those rights which the laws of war reserve to every Power at war; a violation tending to throw insuperable difficulties in the way of peace. After once having adopted those territories as part of herself, she became bound to maintain them to the last extremity by all those peremptory rules which forbid a nation to consent to its own dismemberment.
That incorporation, therefore, changed entirely the principle of the war on the part of France. It ceased to be a war for the defence of her rights, for the preservation of her liberty. It became a war of acquisition, of extension of territory and dominion, and in a manner altogether subversive of the laws and usages of nations, and tending to the aggrandizement of France, to a degree dangerous to the independence and safety of every country in the world.
There is no principle better supported by the doctrines of writers, the practice of nations, and the dictates of right reason, than this—that whenever a nation adopts maxims of conduct tending to the disturbance of the tranquillity and established order of its neighbors, or manifesting a spirit of self-aggrandizement, it is lawful for other nations to combine against it, and by force to control the effects of those maxims and that spirit. The conduct of France in the instances which have been stated, calmly and impartially viewed, was an offence against nations, which naturally made it a common cause among them to check her career.
The pretext of propagating liberty can make no difference. Every nation has a right to carve out its own happiness in its own way, and it is the height of presumption in another to attempt to fashion its political creed.
These acts and proceedings are all prior in time to the last aggressive step of Great Britain, the ordering out of the kingdom the person who was charged with a diplomatic mission to that court from the government of France.
The style and manner of that proceeding rendered it undoubtedly an insult, and if the conduct of France before that time had been unexceptionable, the war declared by France, though offensive in its nature, would have been justifiable in its motive.
With regard to Spain, the war was likewise declared by France, and is consequently offensive on her part. The conduct of the former towards the latter, previous to this event, appears not only to have been moderate, but even timid.
The war on the part of Portugal appears to have been offensive.
The result from what has been said is, that the war in which France is engaged is in fact an offensive war on her part against all the Powers with which she is engaged, except one; and in principle, to speak in the most favorable terms for her, is at least a mixed case—a case of mutual aggression.
The inference from this state of things is as plain as it is important. The casus fœderis of the guaranty in the treaty of alliance between the United States and France cannot take place, though her West India Islands should be attacked.
The express denomination of this treaty is “Traité d’ Alliance eventuelle et defensive”—Treaty of Alliance eventual and defensive.
The second article of the treaty also calls it a “defensive alliance.” This, then, constitutes the leading feature, the characteristic quality of the treaty. By this principle every stipulation in it is to be judged.