Philadelphia 9th: January 1801.
I have searched, in conformity to the request expressed in your favor of the 2d: instt: all the writers upon the law of Nature and Nations, which I have in my Office, for authorities to support & justify & explain, the Sixth article of the Convention with France.
The extracts from Vallet in your letter are somewhat more explicit on the particular point in question, than his masters, Puffendorf & Grotius—The distinction drawn by him between “a treaty which prescribes & a treaty which forbids” I cannot find in the other writers; but the case supposed of “all other things being equal,” wherein he undertakes to shew, that “a treaty cannot derogate from another more antient, concluded with another State, nor hinder its effect either directly or indirectly,” is supported by his predecessors, at least in spirit & by construction.
The sixth article of the Convention then, must be considered as entirely nugatory and as if nothing had been done respecting it, because says Vallet, “where there is collision, it forms an exception to the treaty which prescribes, and that which forbids has the advantage.” Why? “Because we have not the power of doing what another treaty forbids—” The Commercial treaty with Britain in the 25th: article forbids our stipulating any thing inconsistent with it, during the continuance of amity between the two Countries. The sixth article of the french Convention, prescribes, something inconsistent with it, and consequently cannot be carried into effect—
But unless it were to pacify the jealousy or the pride of the french Republic, I can see no reason why this article should have been inserted; for if our negociators were aware of its interference with prior existing engagements, and that by the law of Nations it would be construed to be nugatory; there could be no use in consenting to it. But says Vallet, “the interpretation, which should render an act nul & void, cannot be admitted, for it is not to be presumed that persons in their right senses should pretend to do nothing, in treating or performing any serious act between them.” If it were not in the power of our Commissioners to consent to this article as I am inclined to think it was not, neither is it in the power of the Government to ratify or fulfill it.
I believe the Senate will eventually ratify the Treaty, with the exception of the 6th: article, and I think the Merchants expect & hope they will. I look upon it precisely as I did upon the treaty with Britain, as only better than war. The house of Representatives, which called for the instructions of our first Commissioners, in consequence of which they were published to the world, deserve all the odium of the sufferers by Commercial spoliations, for the want of indemnity. Indemnity is to be the subject of future negociation—How could it be otherwise, when the french Govt knew that our former Commissioners were not instructed to insist upon indemnity as a sine-qua-non of negociation? The instruction was good & proper as a Secret, but once known, it could never be used on a future occasion between the same parties.
I enclose three numbers of “Manlius,” who is examining the important features of the Convention, to which he is inimical in principle & ab initio—He has always attributed the downfall of the federal cause to the mission to France; he has always been opposed to it and I believe, from a conviction that the measure was calculated to divide the federal party—I have differed from him entirely on the policy & the expediency of the measure, and that from the beginning, but I will not say that I disagree as to the consequences—But I will go so far as to say, that had I foreseen the utmost extent of the consequences, I would not have refrained from the cause. It was time that the party called federal should be broken up, for the materials of which it was composed were too discordant, ever to harmonize on the subject of the Country’s good—
The federal Constitution has never yet had a fair experiment as a System of Government; for the confidence that has buoyed it up was personal to Washington & yourself—I believe it is in a fair way now, of being tried upon its own strength—
I have heard nothing further from Mr: Ingersoll and suppose he is waiting to hear what answer Mr: Jay gives and what fate attends the new judiciary Bill. I will be careful to give you his definitive answer, in Season—He will be at Washington in February.
I am with great attachment / Your Son
T B Adams
MHi: Adams Papers.