Answer to Question the 3d. proposed
by the President of the UStates,
April 18th. 1793 viz
“If received” meaning a Minister from the Republic of France “shall it be absolutely or with qualifications, and if with qualifications of what kind”?
It is conceived to be adviseable, 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 with it an amicable communication and intercourse, uninterrupted by political vicissitudes, does not hesitate to receive2 him in the character which his credentials import; yet considering the origin, course and circumstances of the Relations contracted between the two Countries, and the existing position of the affairs of France, it is deemed adviseable 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,3 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 apprize him before hand of the intention to reserve that question, lest silence on the point should occasion misconstruction.”4
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 authorised to divest any other of the constituted authorities of its legal capacities or powers.5 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,6 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]7 characters, who took a lead in the measure of suppressing the Royalty, which seem to amount to a tacit acknowlegement, that the events of the tenth of August were the result of a premeditated plan of the republican party, to get rid of the monarchichal power—rather than a necessary counteraction of mischievous designs on the part of the King.
Mr. Deseze8—one of the Counsel for the King makes these striking observations on the point—
“I know it has been said that he excited the Insurrection to gain the end of his plan. But who is now ignorant that this insurrection had been planned ripened—that it had its agents, its Counsul, its Directory? Who knows not, that there had been signed Acts and treaties on this subject?”
“Within this Hall has been contested the glories of the 10th of August. I do not come to dispute the glory; but since it has been proved that this day was meditated, how can it be attributed as a Crime to him?”
The events of the tenth of August were followed on the second and third 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 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 9 of September at Paris, and on the very day of their Meeting, decreed the abolition of Royalty.
They proceeded in the next place to organise 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, favourers 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 present Rulers 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 shew, 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, even 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?10
It is believed, that they have an option to consider the operation of the 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. I. That a Nation has a right, in its own discretion, to change its form of Government; to abolish one, and substitute another. II That real Treaties11 (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.12
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—that 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 operations 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.13
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 neighbour 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 inconveniencies that may ensue, arises from the other maxim, which has been stated, namely, that real treaties bind nations,14 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,15 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 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 this inducement, and the main link of common interest. Two monarchies may form an alliance on a like principle, their common defence against a powerful neighbouring 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 & 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 it is presumed, be understood with this further limitation—that the Revolution be consummated—that the new Government be established and recognised among nations—that there be an undisputed organ of the national Will, to claim 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 intirely, or in a great degree, to the voluntary succours, which it derived from the Monarch of a Country—the then lawful organ of the national Will—the director of its sword and its purse—the dispenser of its aids and its favours. 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 cooperation 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 national voice. He may find in the assistance of neighbouring powers friendly to his cause the means of endeavouring 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, towards 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 reentered 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 supposeable, that in such a case the obligations of the alliance can continue in favour 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.16
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 Chapt. 16. § XVI. No. 1.17
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 with its marginal note. It is found Book II. Chapt: XII. § 197.18
“The same question” (says he, to wit, that stated in the margin)19 “presents itself in real alliances, 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 enterprizes 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 acknowleged the authority of an usurper, either expressly or tacitly; to oppose these domestic regulations by disputing their justice or validity would be to interfere with the Government of the nation and to do it an injury. The ally remains the ally of the State, notwithstanding the change that 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 súccour 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 favour of the decision of the nation is that there is no support due to the dethroned Prince.
Puffendorf puts this matter upon very proper ground. 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”20—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, ’tis 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 an Usurper.”21
The presumption here stated is a natural and a proper one, and in its reason applies to both sides, to the exiled Prince, who should demand succours against his nation, and to the nation, who having dethroned its Prince should demand succours 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 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 cause hitherto exists for a renunciation—the possibility of its arising here after 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 of course into 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 or contending Parties.
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 interest of the United States, they may be renounced.
If there be such an option, there are strong reasons to shew, that the character and interest of the United States require, that they should pursue the course of holding the operation of the Treaties suspended.
Their character—because it was from Louis the XVI, the then sovereign of the Country, that they received those succours, which were so important in the establishment of their independence and liberty—It was with him his heirs and successors, that they contracted the engagements by which they obtained those precious succours.
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 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 the 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 be also 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 extravagancies, 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 succours 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 favour 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.
Considering our interest with reference even to France herself, some reasons may be urged in favour 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 Guarantee.22
To avoid complying with it—we must either say—
That the war being offensive on the part of France the casus fœderis does not exist.
Or, that as our cooperation would be useless to the object of the Guarantee 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 & 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 unsuccessfull on the part of the present Governing Powers of France. What would 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 materially 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 acknowlegement 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, 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 quarrel with 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 secure 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 negociation, 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—
I. 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 authorising the Powers at War with France to treat us as an enemy.
II. 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 political 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 recognising a political relation with a foreign power embarked in war—to be regarded in the same light as 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 inapplicability 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 other Nations towards 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 recognised 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.23
II. In addition to the embarrassment 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 the XVI. Can it be possible, that a Treaty made with Louis the 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 or 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 have 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 acknowlege 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 developement of circumstances may 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 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, when we ought to explain ourselves on the point in question—and silence, at that time, as a waver 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 humour.
It seems most candid and most safe to anticipate—not to risk the imputation of inconsistency. It seems adviseable 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.”24
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 acknowlegement 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 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 payments on account of the debt to France subsequent to the last change, be not an acknowlegement, that all engagements to the former Government are to be fulfilled to the present.25
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.
Treaties between nations are capable of being affected by a great variety of considerations, casualties 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.26
LS, in the handwriting of H, George Washington Papers, Library of Congress; copy, Hamilton Papers, Library of Congress; copy, in the handwriting of Knox, Massachusetts Historical Society, Boston.
1. DS, in the handwriting of H, George Washington Papers, Library of Congress; Df, in the handwriting of H, dated April, 1793, Hamilton Papers, Library of Congress. Although this opinion was officially that of H and Knox, H alone signed the document submitted to the President.
For background to this document, see Washington to H, Thomas Jefferson, Henry Knox, and Edmund Randolph, April 18, 1793, and “Cabinet Meeting. Opinion on a Proclamation of Neutrality and on Receiving the French Minister,” April 19, 1793.
Jefferson submitted his opinion on the treaties to the President on April 28, 1793 (ADS, George Washington Papers, Library of Congress). Randolph’s opinion was submitted on May 6 (DS, partly in Randolph’s handwriting, George Washington Papers, Library of Congress). The evident familiarity that Jefferson and Randolph showed with H’s arguments can be explained by the fact that H stated them at some length in the cabinet meeting of April 19 (“Cabinet Meeting. Opinion on a Proclamation of Neutrality and on Receiving the French Minister,” April 19, 1793, note 4).
2. At this point in the draft H wrote and crossed out: “the representative of the present Government of France provisionally instituted.” Only substantive changes in the draft have been noted.
3. For a description of the articles of the 1778 Franco-American treaties of Alliance and Amity and Commerce which affected the diplomatic position of the United States in 1793, see H to John Jay, first letter of April 9, 1793, note 2.
4. Randolph stated: “It has been suggested, however, that Mr. Genest ought to be received with such a qualification as to reserve to the U. S. the liberty of renouncing the treaties with France, if at some future day they shall be found useless, dangerous or disagreeable; as Vattel expresses himself (Book 2. c. 12. S. 197).
“A qualification of this kind is not necessary; not a duty from candor; nor expedient. It is not necessary; because his title to be received does not depend upon those treaties; and therefore they will not gain the shadow of a confirmation from that act. It is not a duty from candor; because his mere reception excites no false hopes concerning the treaties. It is not expedient; since the right to renounce, whatsoever it may be, will not be impaired by a prudent forbearance on an irritating subject, which if not prematurely stirred, may possibly sleep for ever. Vigilance in government is undoubtedly wisdom; but it is equally wise not to create an evil for the gratification of subduing it.”
5. At this point in the draft H wrote and crossed out: “in no shape qualified to do what they did that is to imprison the person of the King and suspend the Kingly power.”
6. At this point in the draft H wrote and crossed out: “to defeat a conspiracy against its liberty on the part of the King.”
7. The word within brackets has been taken from the draft.
8. Romain Deseze was one of the three lawyers who defended Louis XVI at his trial in December, 1792, and January, 1793. The observations H quotes were made by Deseze in his speech in defense of the King on December 26, 1792. The relevant section reads as follows:
“Je sais qu’on a dit que Louis avait excité lui-même l’insurrection du peuple, pour remplir les vues qu’on lui prête ou qu’on lui suppose.
“Et qui done ignore aujourd’hui, que longtemps avant la journée du 10 août, on préparait cette journée, qu’on la méditait, qu’on la nourrissait en silence, qu’on avait cru sentir la nécessité d’une insurrection contre Louis, que cette insurrection avait ses agents, ses moteurs, son cabinet, son directoire?
“Qu’est-ce qui ignore qu’il a été combiné des plans, formé des ligues, signé des traités?
“Qu’est-ce qui ignore que tout a été conduit, arrangé, exécuté pour l’accomplissement du grand dessein qui devait amener pour la France les destinées dont elle jouit?
“Ce ne sont pas là, législateurs, des faits qu’on puisse désavourer: ils sont publics; ils ont retenti dans la France entière; ils se sont passés au milieu de vous; dans cette salle même où je parle, on s’est disputé la gloire de la journée du 10 août. Je ne viens point contester cette gloire à ceux qui se la sont décernée, je n’attaque point les motifs de l’insurrection, je n’attaque point ses effets; je dis seulement que, puisque l’insurrection a existé, et bien antérieurement au 10 août, qu’elle est certaine, qu’elle est avouée, il est impossible que Louis soit l’aggresseur.” (Archives Parlementaires description begins Archives Parlementaires de 1787 à 1860 (Paris, 1868– ). description ends , LV, 633.)
9. Space left blank in MS. The National Convention met and decreed the abolition of royalty on September 21, 1792.
10. Jefferson stated: “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 US and France, were not treaties between the US. & 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.”
11. On the distinction between “real” and “personal” treaties Vattel wrote:
“By another general division of treaties or alliances they are distinguished into personal and real: the first are those that relate to the person of the contracting parties, and are restrained and in a manner attached to them. Real alliances relate only to the things of which they treat, without any dependence on the person of the contracting parties.
“The personal alliance expires with him who contracted it.
“The real alliance is affixed to the body of the state, and subsists as long as the state, if the time of its duration is not limited.…
“Every alliance made by a republic is in its own nature real, for it relates only to the body of the state. When a free people, a popular state, or an Aristocratical republic concludes a treaty, it is the state itself that contracts; and its engagements do not depend on the lives of those who were only the instruments: the members of the people or of the regency change and succeed each other; but the state is always the same.
“Since then such a treaty directly relates to the body of the state, it subsists, though the form of the republic happens to be changed, and though it should be even transformed into a monarchy. For the state and the nation are always the same, whatever changes are made in the form of the government, and the treaty concluded with the nation, remains in force as long as the nation exists. But it is manifest that we ought to except from this rule all the treaties that relate to the form of the government. Thus two popular states that have treated expressly, or that appear evidently to have treated with the view of maintaining themselves in concert in their state of liberty and popular government, cease to be allies at the very moment when one of them has submitted to be governed by a single person.
“Every public treaty concluded by a king or any other monarch, is a treaty of the state; it lays under an obligation the intire state, the nation which the king represents, and whose power and right he exercises. It seems then at first that every public treaty ought to be presumed real, as concerning the state itself. There is no doubt with respect to the obligation to observe the treaty, this relates only to its duration. Now there is often room to doubt whether the contracting parties have intended to extend the reciprocal engagements beyond the term of their own lives, and to bind their successors. Conjunctures change; a burthen that is to day light, may in other circumstances become insupportable or too heavy: the manner of thinking among sovereigns is no less variable; and there are things which it is convenient that each prince should dispose of freely according to his own plan. There are others that are freely granted to a king and would not be permitted to his successor. It is necessary then to consider the terms of the treaty, or the design of it, in order to discover the intentions of the contracting powers.
“Treaties that are perpetual, and those made for a determinate time, are real; since their duration does not depend on the lives of the contracting parties.
“In the same manner when a king declares in the treaty that it is made for himself and his successors, it is manifest that the treaty is real. It is affixed to the state and made in order to last as long as the kingdom itself.
“When a treaty expressly declares, that it is made for the good of the kingdom, it is a manifest indication that the contracting powers have not intended to make it depend on the duration of their lives; but rather to affix it to the duration of the kingdom itself: the treaty is then real.
“Independently even of this express declaration, when a treaty is concluded to procure an advantage to the state that will always subsist, there is no reason to believe that the prince who has concluded it, was willing to limit it only to the duration of his life. Such a treaty ought then to be considered as real, unless very strong reasons shew, that he with whom it was concluded, granted the advantage to which it relates only out of regard to the prince then reigning, and as a personal favour; in this case the treaty terminates with the life of the prince, the reason of the concession expiring with him. But this reserve is not easily presumed; for it would seem that if contracting parties had this in their view, they would have expressed it in the treaty.
“In case of doubt, when nothing clearly establishes, either the personality or the reality of a treaty, it ought to be presumed real if it turns on things that are favourable, and personal in matters that are odious. The things favourable are here those that tend to the common advantage of the contracting powers, and that equally favour the two parties; things odious are those that burthen one party alone, or that are a greater grievance to one than the other.… But if the engagement has something odious, if one of the contracting states finds itself overburthened, how can it be presumed that a prince who entered into such engagements, was willing to lay that burthen forever upon his kingdom? Every sovereign is presumed to desire the safety and advantage of the state with which he is entrusted, it cannot then be supposed, that he has consented to load it forever with a burthensome obligation.…
“Since public treaties, and even those that are personal, concluded by a king or by any other sovereign who is invested with sufficient power, are treaties of state and obligatory with respect to the whole nation; … real treaties, made to subsist independently of the person who has concluded them, doubtless, oblige his successors; and the obligation imposed on the state passes successively to all its conductors, in proportion as they assume the public authority. It is the same with respect to the rights acquired by these treaties: they are acquired for the state, and successively pass to its conductors.
“It is at present a pretty general custom for the successor to confirm, or renew even real alliances, concluded by his predecessors: and prudence requires, that this precaution should not be neglected, since men lay a greater stress on an obligation they themselves have contracted, than on one imposed on them by others, or to which they have only tacitly agreed. This is because they believe their word engaged in the first, and only their conscience in the other.” (Vattel, Law of Nations description begins Emeric de Vattel, Law of Nations; or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns (London, 1759–1760). description ends , I, 182–85.)
12. Randolph stated: “… the treaties need not shun an investigation.
“In their origin, they were dear to the U.S., for the critical relief, which the connection with France administered. They were rendered still more dear by the rescinding of the two obnoxious clauses. They were fulfilled by the French with fidelity, and would have remained sacred in the eyes of the Americans, but for the new order of things in France. This new order has produced many changes; the most influential of which on the present inquiry are, the dissolution of the old monarchy, the erection of a republic with an hereditary executive, the dethronement and decapitation of that hereditary executive, the annihilation of every germ of monarchy, and a government, at this moment unsettled. We are led to ask … whether the treaties have been annulled by these circumstances? … Perhaps the position is true, that if the U.S. have an option to declare the treaties void, or even to hold them in suspence, they ought not now to assert to their operation. For the provisions, contained in them are of such a nature, that, if they were created during this war, they would amount to a breach of neutrality. The guarantee, and the preference to French privateers wear too much of the air of a military succour, to be consistent with impartiality; were they now for the first time stipulated; and to elect without being absolutely bound, in favor of treaties having those articles, is equal to the original formation of them.
“But the U.S. are absolutely bound, with out the privilege of election.
“They are real treaties, not personal. These two species are so well defined and distinguished by Vattel in the 12th chapter of his second book, from the 183d to the 191st. sections inclusive, as to deserve transcription at length.”
13. On the right to suspend treaties Jefferson observed: “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, Vattle. 2. 197. and tho he may under certain degrees of danger, yet the danger must be imminent, & the degree great.…
“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.… 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.”
Randolph stated: “This quotation [from Vattel], applied in its most essential doctrines to the treaties with France, may be affirmed without being minute, to justify in the most conclusive manner, that they are national and real, not personal, and will therefore survive the prince, who in the character of chief magistrate was only the organ, thro’ which they were made. In the language of politics, our gratitude towards him ought to be showed by the nation, which enabled him to be so beneficient to us. The change of government is from a less, to a greater degree of congeniality with our own, as far at least, as it has been yet established. The treaties are as capable of being executed now, as ever; and had it been in our choice to have contracted with a monarch or a republic; had it been foretold, that the commonwealth of France was to rise on the ruins of its despotism, we should have courted its alliance with equal avidity. Sympathy with the unhappy Lewis need not be concealed by us, as men; but it is the nation, which put him to death; it is the nation, which abolished kingly government; and their will in their own internal affairs cannot be rightfully controuled by foreigners.
“Except in bloodshed, has not America exhibited examples of altering constitutions, with constant recognitions of old engagements? Did not many of the obligations under the royal, descend on the state-governments? Have not the state governments observed the same conduct in all their mutations? Did not the present government of the U. S. avow its own liability to the debts of the confederation? The national convention indeed are said to have invalidated some ancient treaties, but to what extent is unknown here. Thus much, however, is certain; some of them, such as the family-compact, and those, which related to the prince personally, might well be proclaimed void; but the American treaties are treated with reverence.
“The U.S. then have no excuse for presuming them to be cancelled at this time; and even if they had, the President would probably not bring upon himself alone the responsibility of hazarding a war, by a declaration of their nullity.
“2. The second point for examination is, whether the U. S. may hold the treaties with France suspended?
“She will quickly collect the meaning of such a measure to be, that her destiny is, in our judgment, so precarious, as to exact the utmost scrupulousness in admitting her old claims to subsist. She will discern, that it has been dictated by our fear of her enemies, and a disregard of herself. What process of reasoning will be adopted by her in such an exigency? She will ask, whether the treaties be void? The answer will be, that they are not void. Are they in force? No. They must then be in a kind of middle, or dormant state, until some important change shall be effected. Must this change, which is to call the treaties into life, be a restoration of the former tyranny? No man insinuates it. Must the change be to the constitution accepted by the late king? During its operation, the binding quality of the treaties was not suspected. We are assured, that the future government, if it shall not be a monarchy, absolute or limited, must be a republic or democracy. Mark then the inference. While despotism lasted, America thought herself bound: While an hereditary king presided, America thought herself bound: as soon as the tincture of monarchy was suppressed, America kept herself equipoized to renounce or confirm. It partakes of the nature of a threat to France to reestablish monarchy in some form or other, at the peril of our alliance. Such a conduct would be coloured only by alledging the apprehension of too much tumult and distraction in the French government to merit our confidence. But this pretext would be driven to flight, by shewing, that the nation, for whom and by whose officer, the treaties were made, are now wielding their own power; and therefore is upon as respectable a footing, as with a prince at its head.
“Even if the U.S. should be ultimately reduced to the extremity of renouncing the treaties, France could reproach them, with but an illgrace, for suffering them still to operate. Her remonstrances, so far as they might be built on the charge of a fraudulant acquiescence at this time, might be repelled by the delicacy of our deportment, in discarding wanton conjectures of the possibility of her being unable hereafter to perform her contract. Besides if to abolish a treaty unjustly is a cause of war, to suspend it unjustly is also a cause of war, tho’ inferior in degree.”
14. At this point in the draft H wrote and crossed out: “not merely the contracting Government and attach themselves to them, whatever mutations attend the forms of their Governments.”
15. At this point in the draft H wrote and crossed out: “of which he is to be the judge.”
16. Jefferson stated: “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 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 lesion of the Roman law, not merely the being disadvantageous, or dangerous. For as he says himself S. 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 S. 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 S. 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. S. 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 then 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 the very 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.”
17. Grotius, The Rights of War and Peace description begins [Hugo Grotius], The Rights of War and Peace, in Three Books. Wherein are explained, The Law of Nature and Nations, and The Principal Points relating to Government. Written in Latin by the Learned Hugo Grotius, And Translated into English. To which are added All the large Notes of Mr. J. Barbeyrac, Professor of Law at Gröningen, And Member of the Royal Academy of Sciences at Berlin (London: Printed for W. Innys and R. Manby, J. and P. Knapton, D. Brown, T. Osborn, and E. Wicksteed, 1738). description ends , 360. Jefferson also cites this passage in his opinion.
18. Vattel, Law of Nations description begins Emeric de Vattel, Law of Nations; or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns (London, 1759–1760). description ends , I, 188. Jefferson also quotes this passage in his opinion.
19. A marginal note opposite this paragraph reads as follows: “‘What is the obligation of a real alliance, when the King who is the ally is driven from the throne?’” This also appears in Vattel, Law of Nations description begins Emeric de Vattel, Law of Nations; or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns (London, 1759–1760). description ends , I, 188, as a marginal note to the paragraph quoted by H.
20. Grotius, The Rights of War and Peace description begins [Hugo Grotius], The Rights of War and Peace, in Three Books. Wherein are explained, The Law of Nature and Nations, and The Principal Points relating to Government. Written in Latin by the Learned Hugo Grotius, And Translated into English. To which are added All the large Notes of Mr. J. Barbeyrac, Professor of Law at Gröningen, And Member of the Royal Academy of Sciences at Berlin (London: Printed for W. Innys and R. Manby, J. and P. Knapton, D. Brown, T. Osborn, and E. Wicksteed, 1738). description ends , Book II, Ch. XVI, Section XVII, p. 362.
21. Pufendorf, Of the Law of Nature and Nations description begins Samuel Pufendorf, Of the Law of Nature and Nations. Eight Books. Written in Latin by the Baron Pufendorf, Counsellor of State to his late Swedish Majesty, and to the late King of Prussia. Done into English by Basil Kennett, D.D. late President of Corpus Christi College in Oxford. To which are added All the large Notes of Mr. Barbeyrac, translated from the best Edition; Together with large Tables to the whole. The Fourth Edition, carefully Corrected … (London: Printed for J. Walthoe, R. Wilkin, J. and J. Bonwicke, S. Birt, T. Ward, and T. Osborne, 1729). description ends , Book VIII, Ch. IX, Section IX, p. 862.
22. Jefferson expressed his views on the American guarantee of the French West Indies as follows: “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? 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 negotiations 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.”
Randolph stated: “We cannot be embraced in the war by confessing the obligation of the treaties.
“Whether France will press the guarantee or not, is a problem, not yet solved. On the one hand, if she could involve the U. S. in the war, their force would be let out at large; their privateers might supply some of the naval defects of France: their ports would be wholly shut against the English. On the other, the French nation can now by the means of neutral American bottoms be relieved from a famine, which the scantiness of their own harvests too strongly predict. But suppose that a compliance with the guarantees be demanded: it will be adviseable, and in no manner derogate from the public honor, to decline the guarantee. If it were allowed (which however might, if this were the proper place for dilating on it, be safely denied) that Vattel is consistent with himself, consistent with principle, and conformable with other writers, when he vindicates the renunciation of whole treaties, which are useless or disagreeable; a part of those treaties may surely be renounced for the same causes. If he be right, only in assigning danger, as a justifying cause of renouncing a treaty, it may equally invalidate any article of that treaty, And in fact he is very explicit in B. 2. S. 160 and B. 3. S. 92, when he lays it down as to guarantees that, if the ‘state, which has promised succours, finds itself unable to furnish them, its very inability is its exemption; and if the furnishing of succours would expose it to an evident danger, this also is a lawful dispensation.’ Whosoever shall cast his eye over the U. S., will immediately discover, that a war, in which they should be engaged, would convulse them to the center. It will be the deathwound of public credit, the surest pledge of attachment to the general government. It will strike home at our trade, the only source of revenue, which the general temper of our country will yet permit to be used. It will give a scope to those discontents, which, from the opportunities, incident to the best-conducted war, will be concentrated against government, and will burst upon the Union itself. In a word the calamities of war are immeasurable. It may be humiliating to confess our weakness. But would it not be a hazardous experiment to be bickering with France immediately, by alternating the right of suspending the treaties, in order to counteract the possible necessity of refusing a guarantee, by telling a fact, which France and all the world know? Again: the alliance is defensive only; and an offensive war on the part of France would absolve us from the guarantee, pending that war. I own, that altho’ the first blow has been struck by her in most instances, her war is not in my estimation thereby conclusively of an offensive nature. Still an additional prospect may open from this quarter, to cover us from the guarantee. Why then shall we risque an instantanious quarrel with France? Why, when the design of holding the treaties in suspence is to guard against unfriendly events, may we not take the chance of friendly ones, to fortify us in withdrawing from the guarantee? If we be faithful in executing every other stipulation in the treaty, France herself, impressed with the awfulness of our situation, will acquit us. Upon principle she cannot condemn; and against an outrage on principle no uprightness of conduct can afford protection.
“As little is a war to be apprehended from the 17th and 22d. articles of the commercial treaty. It is true, that they provide for an inequality of measure in two particulars; first by cutting off shelter or refuge to the enemies of France, who shall have made prize of the people or property thereof; and secondly by prohibiting the privateers of those enemies from fitting their ships in the ports of the U. S., selling what they may have taken, exchanging their ships, merchandizes or any other lading, or purchasing victuals, except such, as shall be necessary for their going to the next port of their sovereign. The contrary privileges are allowed to the French.
“1. This treaty was made many years ago without relation to the present war; and it is therefore no breach of neutrality to fulfil it in both points.
“2. The 17th article has been copied almost verbatim, and intirely in substance, into the 40th. article of the commercial treaty between France and Great Britain on the 22d. of September 1786, with a reservation of preceding treaties. This disables Great Britain from complaining.
“3. In the 22d. article of the treaty with the Netherlands, it is specially declared, that it shall not derogate from the 17th and 22d articles of our treaty with France. This disables the Dutch from complaining.
“4. In the 19th. article of the treaty with Prussia, arrangements are fixed, similar to those in our treaty with France, in respect to prizes; and the latter treaty is recognized, as intitled to a preference. This disables Prussia from complaining.
“5. Further: neither the 17th. nor 22d. article of our treaty with France, imposes any disability on the public ships of war of any prince, except where they may have captured the French. The belligerent powers will not imagine, that the U. S. can have a predilection for the commercial treaty, which is not as advantageous, as might now be obtained, if the subject were new. Nor will they ascribe our adherence to it, to any desire of being unsocial to them; but rather to the pure motives of a young nation, seeking the general esteem by acts of good faith. In the vicissitudes, which may befal those powers, the U.S. will incur the blame of fluctuation and caprice, unless they pursue some stable principle; and none can be more stable, than this, that the nation, which does in fact exercise the supreme power for their own benefit, is to be considered, as justly exercising it.”
23. In the margin opposite this paragraph H wrote: “Note. The fact on which this argument turns is stated from memory & is therefore the less relied upon. There has not been leisure to examine.”
24. Jefferson stated: “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 treaties 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 our 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.”
Randolph stated: “The policy of the proposed qualification can hardly be supported, after the justice of it is disavowed.
“To induct Mr. Genest into all the rights and immunities of a public minister, and hang over his head the terror of abrogating the treaties, will agitate him with perpetual jealousy towards the U. S. He will want that cordiality, without which rancour will sooner or later ensue.
“It is certainly reconcileable with the firmness of government to watch the state of the public mind on such an occasion. It probably is in this train; that the U. S. should, if possible, embark her happiness upon an association with no power on earth; but since such an independency is impracticable, France is the nation, to which our affections tend, and from which we have the greatest expectations. The truth and wisdom of this idea might be developed to a wide extent; but the President possesses the different views so amply, that a recapitulation of them would be superfluous. I own, without reserve, that I contemplate a danger of magnitude, hovering over the U.S., from the ardour of some, to transplant French politics, as fresh fuel for our own parties. The very instant it shall be known, that government has, without the most palpable grounds, betrayed even a distinct inclination to sever us from France, no argument nor influence can oppose itself with success to this new hotbed of dissension.”
25. For the negotiations on the payment to the French revolutionary government of the American debt to France, see William Short to H, August 30, September 25, October 27, November 29, 1792; Gouverneur Morris to H, September 25, December 24, 1792; H to Short, October 1–15, 16, November 5, 1792.
26. Jefferson concluded his statement as follows: “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, & 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 other writers, & to every moral feeling: that were it not so, these treaties are in fact neither useless or 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 denial of them, foreasmuch as he comes not under any stipulation in them:
“That were it an explicit admission, or were an express declaration of their 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.”
Randolph concluded his statement as follows: “From these premises, which might be diversified into many other forms, the attorney-general submits it, as his opinion.
“Upon the 2d., 3d., and 12th., questions, that Mr. Genest ought to be received absolutely, and without qualifications; and that no minister ought to be received from any regent of France, against the will of the French nation:
“Upon the 4th., 5th. and sixth questions, that altho’ it would be an infraction of neutrality to elect, (if we had the power of choosing) the operation of the treaties, the U. S. are bound to admit them to be applicable to the present situation of the parties:
“Upon the 7th., 8th., 9th. and 10th. questions, that the guarantee, even if exacted, will not oblige us to become a party to the war, and abandon our neutrality:
“and upon the 11th. question, that public ships of war, hostile to France are under no other impediment in our ports, than those of France herself, except where they may have captured the French.
“The 1st. & 13th. questions as to the proclamation and calling of congress, having been already settled, are here passed over.”