Pacificus No. II1
[Philadelphia, July 3, 1793]
The second & principal objection to the Proclamation namely that it is inconsistent with the Treaties between the United States and France2 will now be examined.
It has been already shewn, that it is not inconsistent with the performance of any of the stipulations in those Treaties,3 which would not make us an associate or party in the war and particularly, that it is compatible with the privileges secured to France by the 17 & 22d articles of the Treaty of Commerce; which, except the clause of Guarantee, constitute the most material discriminations to be found in our treaties in favour of that Country.
Official documents have likewise appeared, in the public papers, which are understood to be authentic, that serve as a comment upon the sense of the proclamation in this particular; proving that it was not deemed by the Executive incompatible with the performance of the stipulations in those articles, and that in practice they are intended to be observed.
It has however been admitted, that the declaration of neutrality excludes the idea of an execution of the clause of Guarantee.
It becomes necessary therefore to examine whether the United States would have a valid justification for not complying with it, in case of their being called upon for that purpose by France.
Without knowing how far the reasons, which have occurred to me, may have influenced the President, there appear to me to exist very good and substantial grounds for a refusal.
The Alliance between the United States and France is a Defensive Alliance. In the Caption of it it is denominated a “Treaty of Alliance eventual and defensive.” In the body of it, (Article the 2) it is again called a defensive Alliance. The words of that Article are as follow “The essential and direct end of the present Defensive Alliance is to maintain effectually the liberty, sovereignty, and independence absolute and unlimited, of the United States, as well in matters of government as of commerce.”
The predominant quality or character then of our alliance with France is that it is defensive in its principle. Of course, the meaning obligation and force of every stipulation in the Treaty must be tested and determined by that principle. It is not necessary (and would be absurd) that it should be repeated in every article. It is sufficient that it be once declared, to be understood in every part of the Treaty, unless coupled with express negative words excludi⟨ng⟩ the implication.
Reason the concurring opinions of Writers and the practice of Nations will answer—“When either of the allies is attacked, when war is made upon him not when he makes war upon another.” In other words, The stipulated assistance is to be given to the ally, when engaged in a defensive not when engaged in an offensive war. This obligation to assist only in a defensive war constitutes the essential difference between a defensive alliance and one which is both offensive and defensive. In the latter case there is an obligation to cooperate as well when the war on the part of our ally is offensive as when it is defensive. To affirm therefore that the UStates are bound to assist France in the War in which she is at present engaged would be to convert our Treaty with her into an Alliance Offensive and Defensive contrary to the express & reiterated declarations of the Instrument itself.
This assertion implies that the War in question is an offensive war on the part of France.
And so it undoubtedly is with regard to all the powers with whom she was at War at the time of issuing the Proclamation.
No position is better established than that the Power which first declares or actually begins a War, whatever may have been the causes leading to it, is that which makes an offensive war. Nor is there any doubt that France first declared and began the War against Austria, Prussia, Savoy Holland England and Spain.
Upon this point there is apt to be some incorrectness of ideas. Those, who have not examined subjects of such a Nature are led to imagine that the party which commits the first injury or gives the first provocation is on the offensive side in the war, though begun by the other party.
But the cause or occasion of the War and the War itself are things entirely distinct. Tis the commencement of the War itself that decides the question of being on the offensive or defensive. All writers on the laws of Nations agree in this principle but it is more accurately laid down in the following extract from Burlamaqui.*
“Neither are we to believe (says he) that he who first injures another begins by that an offensive War and that the other who demands the satisfaction for the Injury received is always on the Defensive. There are a great many unjust acts which may kindle a War and which however are not the war itself, as the ill treatment of a Princes Ambassador the plundering of his subjects &c.”
“If therefore we take up arms to revenge such an unjust act we commence an offensive but a just war; and the Prince who has done the injury and will not give satisfaction makes a defensive but an unjust war.”
“We must therefore affirm, in general, that the first who takes up arms whether justly or unjustly commences an offensive War & he who opposes him whether with or without reason, begins a defensive War.
France then being on the offensive in the war, in which she is engaged, and our alliance with her being defensive only, it follows that the casus fœderis or condition of our guarantee cannot take place; and that the UStates are free to refuse a performance of that guarantee, if demanded.
Those who are disposed to justify indiscriminately every thing, in the conduct of France, may reply that though the war in point of form may be offensive on her part, yet in point of principle it is defensive—was in each instance a mere anticipation of attacks meditated against her, and was justified by previous aggressions of the opposite parties.
It is believed that it would be a sufficient answer to this observation to say that in determ[in]ing the legal and positive obligations of the UStates the only point of inquiry is—whether the War was in fact begun by France or by her enemies; that All beyond this would be too vague, too liable to dispute, too much matter of opinion to be a proper criterion of National Conduct; that when a war breaks out between two Nations, all other nations, in regard to the positive rights of the parties and their positive duties towards them are bound to consider it as equally just on both sides—that consequently in a defensive alliance, when war is made upon one of the allies, the other is bound to fulfil the conditions stipulated on its part, without inquiry whether the war is rightfully begun or not—as on the other hand when war is begun by one of the allies the other is exempted from the obligation of assisting; however just the commencement of it may have been.
The foundation of this doctrine, is the utility of clear and certain rules for determining the reciprocal duties of nations—that as little as possible may be left to opinion and the subterfuges of a refining or unfaithful casuistry.
Some writers indeed of great authority affirm that it is a tacit condition of every Treaty of alliance, that one ally is not bound to assist the other in a war manifestly unjust. But this is questioned on the ground which has been stated by other respectable authorities. And though the manifest injustice of the war has been affirmed by some, to be a good cause for not executing the formal obligations of a treaty, I have no where found it maintained, that the justice of a war is a consideration, which can oblige a nation to do what its formal obligations do not require; as in the case of a defensive alliance, to furnish the succours stipulated, though the formal obligation did not exist, by reason of the ally having begun the war, instead of being the party attacked.
But if this were not the true doctrine, an impartial examination would prove, that with respect to some of the powers, France is not blameless in the circumstances, which preceded and led to the war with those powers; that if she received, she also gave cause of offense, and that the justice of the War on her side is, in those cases, not a little problematical.
There are prudential reasons which dissuade from going largely into this examination; unless it shall be rendered necessary by the future turn of the discussion.
It will be sufficient here, to notice cursorily the following facts.
France committed an aggression upon Holland in declaring free the navigation of the Scheldt and acting upon that declaration; contrary to Treaties5 in which she had explicitly acknowleged and even guaranteed the exclusive right of Holland to the navigation of that River and contrary to the doctrines of the best Writers and established usages of Nations, in such cases.
She gave a general and just cause of alarm to Nations, by that Decree of the 19th. of November 17926 whereby the Convention, in the name of the French Nation, declare that they will grant fraternity and assistance to every People who wish to recover their liberty and charge the Executive Power to send the necessary orders to the Generals to give assistance to such people, and to defend those citizens who may have been or who may be vexed for the cause of liberty; which decree was ordered to be printed in all languages.
When a Nation has actually come to a resolution to throw off a yoke, under which it may have groaned, and to assert its liberties—it is justifiable and meritorious in another nation to afford assistance to the one which has been oppressed & is in the act of liberating itself; but it is not warrantable for any Nation beforehand to hold out a general invitation to insurrection and revolution, by promising to assist every people who may wish to recover their liberty and to defend those citizens, of every country, who may have been or who may be vexed for the cause of liberty; still less to commit to the Generals of its armies the discretionary power of judging when the Citizens of a foreign Country have been vexed for the cause of Liberty by their own government.
The latter part of the decree amounted exactly to what France herself has most complained of—an interference by one nation in the internal Government of another.
Vatel justly observes, as a consequence of the Liberty & Independence of Nations—“That it does not belong to any foreign Power to take cognizance of the administration of the sovereign of another country, to set himself up as a judge of his Conduct or to oblige him to alter it.”7
Such a conduct as that indicated by this Decree has a natural tendency to disturb the tranquillity of nations, to excite fermentation and revolt every where; and therefore justified neutral powers, who were in a situation to be affected by it in taking measures to repress the spirit by which it had been dictated.
But the principle of this Decree received a more particular application to Great Britain by some subsequent circumstances.
Among the proofs of this are two answers, which were given by the President of the National Convention at a public sitting on the 28th. of November to two different addresses; one presented by a Deputation from “The Society for constitutional information in London” the other by a deputation of English & Irish Citizens at Paris.8
The following are extracts from these answers.
“The shades of Penn, of Hambden and of Sydney hover over your heads; and the moment without doubt approaches, in which the French will bring congratulations to the National Convention of Great Britain.”
“Nature and principles draw towards us England Scotland and Ireland. Let the cries of friendship resound through the two Republics.” “Principles are waging war against Tyranny, which will fall under the blows of philosophy. Royalty in Europe is either destroyed or on the point of perishing, on the ruins of feudality; and the Declaration of Rights placed by the side of thrones is a devouring fire which will consume them. Worthy Republicans &c.”
Declarations of this sort cannot but be considered as a direct application of the principle of the Decree to Great Britain; as an open patronage of a Revolution in that Country; a conduct which proceeding from the head of the body that governed France in the presence and on behalf of that body was unquestionably an offense and injury to the Nation to which it related.
The decree of the 15 of November9 is another cause of offence to all the Governments of Europe. By That Decree “The French Nation declares, that it will treat as enemies the people, who refusing or renouncing liberty and equality are desirous of preserving their Prince and privileged casts—or of entering into an accomodation with them &c.” This degree was little short of a declaration of War against all Nations, having princes and privileged classes.
The incorporation of the territories, over which the arms of France had temporarily prevailed, with and as a part of herself is another violation of the rights of Nations into which the Convention was betrayed by an intemperate zeal, if not by a culpable ambition.
The laws of Nations give to a Power at War nothing more than a usufructuary or possessory right to the territories, which it conquers; suspending the absolute dominion & property till a treaty of Peace or something equivalent shall cede or relinquish the conquered territory to the Conqueror. This principle is one of the greatest importance to the tranquillity and security of Nations; facilitating an adjustment of the quarrels and the preservation of ancient limits.
But France, by incorporating with herself, in several instances, the territories she had acquired, violated this important principle and multiplied indefinitely the obstacles to peace and accommodation. The Doctrine, that a Nation cannot consent to its own dismemberment, but in a case of extreme necessity, immediately attached itself to all the incorporated territories. While the progressive augmentation of the dominions of the most powerful nation in Europe, on a principle not of temporary acquisition, but of permanent union, threatened the independence of all other countries and give to neighbouring neutral powers the justest cause of umbrage and alarm.
It is a principle well agreed & founded on the best reasons, that whenever a particular nation adopts maxims of conduct contrary to ⟨th⟩ose generally established among nations calculated to disturb their tranquillity & to expose their safety, they may justifiably make a common cause to oppose & controul such Nation.
Whatever partial[it]y may be entertained for the general object of the French Revolution, it is impossible for any well informed or soberminded man not to condemn the proceedings which have been stated; as repugnant to the general rights of Nations, to the true principles of liberty, to the freedom of opinion of mankind; & not to acknowlege as a consequence of this, that the justice of the war on the part of France, with regard to some of the powers with which she is engaged, is from those causes questionable enough to free the UStates from all embarrassment on that score; if it be at all incumbent upon them to go into the inquiry.
The policy of a defensive alliance is so essentially distinct from that of an offensive one, that it is every way important not to confound their effects. The first kind has in view the prudent object of mutual defence, when either of the allies is involuntarily forced into a war by the attack by some third power. The latter kind subjects the peace of each ally to the will of the other, and obliges each to partake in the wars of policy & interest, as well as in those of safety and defence, of the other. To preserve their boundaries distinct it is necessary that each kind should be governed by plain and obvious rules. This would not be the case, if instead of taking the simple fact of who begun the war as a guide, it was necessary to travel into metaphysical niceties about the justice or injustice of the cause which led to it. Since also the not furnishing a stipulated succour, when it is due, is itself a cause of War, it is very requisite, that there should be some palpable criterion for ascertaining when it is due. This criterion as before observed, in a defensive alliance is the commencement or not of the war by our ally, as a mere matter of fact.
Other topics calculated to illustrate the position, that the UStates are not bound to execute the clause of guarantee; are reserved for another paper.
ADf, Hamilton Papers, Library of Congress; [Philadelphia] Gazette of the United States, July 3, 1793.
2. For a description of the relevant articles in the 1778 Franco-American treaties of Alliance and Amity and Commerce, see H to John Jay, first letter of April 9, 1793, note 2.
4. Burlamaqui, Principles of Political Law description begins [Jean Jacques Burlamaqui], The Principles of Political Law: Being a Sequel to the Principles of Natural Law. By J. J. Burlamaqui, Counsellor of State, and Late Professor of Natural and Civil Law at Geneva. Translated into English by Mr. Nugent (Dublin: Printed for J. Sheppard, and G. Nugent, No. 7 in Anne Street, Stephen’s Green, 1776). description ends . See H to George Washington, May 2, 1793, note 4.
7. 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, 138.