The attorney-general has the honor of reporting to the President, on the questions propounded for consideration,1 as follows:

Altho’ the questions are separately stated; yet are they in general so interwoven in substance, that the discussion of one must frequently run into others.

The proclamation has announced the neutrality of the U.S.2 With this almost every citizen is in unison; and the few, who in their hearts would plunge us into the war, perceive the torrent too strong to be resisted, and therefore acquiesce.

Neutrality then is to be assumed, as the basis and enterior of our conduct. Does it leave the executive less free to receive a minister from the republic of France?3

If the imputations on the prevailing party there were ever so heinous, and her new government ever so unstable, a correspondence must be maintained between the U.S. and her. Ministers are the necessary instruments for such an object. As it can injure no nation, so far to indulge a speculation in favor of the existing authority of a country, as to accept its minister; so the refusal of him may bring war upon the U.S., because they cannot, without very particular reasons decline his admission—(See Vattel book. 4. section 65)4 That the expulsion of the prince is not one of those particular reasons will appear by the following passages in the same author. (Book 4. C. 5. S. 68) “Before I close this chapter, it will be proper to examine a question, famous for being often debated, whether foreign nations may receive ambassadors and other ministers of an usurper, and send such ministers to him. Here foreign powers, if the advantage of their affairs invites them to it, follow possession; there is no rule more certain, or more agreeable to the law of nations, and the independency of them. As foreigners have no right to interfere in the domestic concerns of a people, they are not obliged to canvass and inspect its oeconomy in those particulars, or to weigh either the justice or injustice of them. They may, if they think proper, suppose the right to be annexed to the possession. When a nation has expelled its sovereign, the other powers, which are not willing to declare against it, and would not draw on themselves its arms or enmity, consider that nation as a free and sovereign state, without taking upon themselves to determine, whether it has acted justly in withdrawing from the allegiance of subjects and dethroning the prince. Cardinal Mazarine received Lockhart, who had been sent as ambassador from the republic of England, and would neither see King Charles the second, nor his ministers.5 If a nation after driving out its prince, submits to another, or changes the order of succession, and acknowledges a sovereign to the prejudice of the natural and appointed heir; foreign powers may here likewise consider, what has been done, as legal; it is no quarrel or business of theirs. At the beginning of the last century, Charles Duke of Sudermania having obtained the crown of Sweden to the prejudice of Sigismund, king of Poland, his nephew was soon acknowledged by most sovereigns. Villeroy, minister of Henry the 4th, King of France, at that court, in a memoir of the 8th of April 1608, plainly said to the President Jeannin;6 ‘All these reasons and considerations shall not hinder the king from treating with Charles, if he finds it to be his interest, and that of his kingdom.’

“This was arguing sensibly. The king of France was neither the judge nor the guardian of the Swedish nation, that he should, against the good of his own kingdom, refuse to acknowledge the king, which Sweden had chosen, under pretence, that a competitor termed Charles an usurper. Had it even been done with justice, it does not come under the cognizance of foreigners.

“Therefore when foreign powers have received the ministers of an usurper and sent theirs to him, the lawful prince, on recovering his throne, cannot complain of these measures, as an injury, nor justly make them the cause of a war; provided these powers have not gone farther, nor furnished any succours against him. But to acknowledge the prince dethroned or his heir, after a solemn acknowledgment of him, who fills his place, is doing wrong to the latter, and declaring against the nation, who has chosen him. Such a step, which had been taken in favor of James, the second’s son, King William, the third, and the English nation alledged, as one of the principal reasons of the war, which England soon after declared against France. All the blandishments, and all the protestations of Lewis, the 14th, were of no weight; the English accounted the acknowledgment of James’s son, as king of England, Scotland, and Ireland, by the title of James, the 3d, an outrage and injustice both to the king and the nation.”7

The possession, to which Vattel alludes, is the possession of the supreme power; and how difficult soever it may be to ascertain it between two rival pretenders, who may divide a nation; all embarrassment is removed, when the nation itself has drawn the supreme power back into its own hands. This is the condition of France; and furnishes also a caution against acknowledging the heir of the deceased monarch, as long as he shall continue exiled from the throne.8

It has been suggested, however, that Mr Genest ought to be received with such a qualification,9 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).10

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.

Notwithstanding these remarks, 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.11 We are led to ask,

1. Whether the treaties have been annulled by these circumstances?

2. Whether the treaties may be held suspended? and

3. What is the true policy of the U.S.?

1. 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 assent 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, without 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.12

[“]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 restained, and in a manner attached, to them. Real alliances relate only to the things, of which they treat, without any dependance 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. It is of great use, not to confound these two sorts of alliances. Therefore sovereigns are, at present, accustomed to explain themselves, in such a manner, as to leave no uncertainty in this respect: and this is doubtless the best, and safest method. In want of this precaution, the matter of the treaty or the expressions, in which it is conceived, may furnish the means of discovering, whether it be real, or personal. Let us give some general rules on this subject. In the first place, from naming in the treaty the sovereigns who contract, we ought not to conclude, that the treaty was personal, for the name of the sovereign, who actually governs, is often inserted, with the sole view of shewing, with whom it is concluded; and not to make known, that they have treated with him personally. This is an observation of the Civilians Pedius and Ulpian,13 repeated by all authors. 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 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 an entire state, the nation, which the king represents, and whose power and right he excercises: 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 conveniant, 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 a 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 & 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 the lives; but rather to affix it to the duration of the kingdom itself: the treaty is then real.

Independantly 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 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 the 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 favoura[b]le, 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. We shall speak of them, more at large, in the chapter on the interpretation of treaties. Nothing is more conformable to reason, and equity, than this rule; whenever certainty is wanting in the affairs of men, we must have recour[s]e to presumption. Now, if the contracting powers have not explained themselves, it is natural, when it relates to things favourable, and equally advantageous to the two allies, to think that they intended to make a real treaty, as one most useful to their respective kingdoms; and if we deceive ourselves in this presumption, we do no injury either to the one or, 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. If necessity has made it a law to him, it was the business of his ally to make him explain himself clearly, and it is probable, he would not have failed to do it; knowing that men, and particularly sovereigns, seldom submit to heavy and disagreable burthens, if they are not, in due form obliged to it. If it happens then that the presumption is a mistake, and makes him lose something of his right, it is a consequence of his own negligence.

Let us add, that if neither the one, nor the other, ought to lose his right, equity will be less wounded, by the loss, which this will suffer, from a gain, which he could only obtain, by the damage he intended the other: this is the famous distinction, de lucro captando and de damno vitando.

We, without difficulty, place equal treaties of Commerce, in the number of those, that are favorable, since they are in general advantageous, and very conformable to the law of nature. As to alliances, made on account of war, Grotius14 says with reason, that ‘defensive alliances have a more favorable aspect; and those, that are offensive, have something in them, that approaches nearer, to what is burthensome or odious.[’]

We could not dispense, with slightly mentioning, in a few words, these discussions; in order, that we might not leave here a disagreable void. However, they are but of little use in practice; sovereigns at present generally using the wise precaution, of clearly determining the duration of their treaties: They treat for themselves and their successors, for themselves and their kingdoms for perpetuity, for a certain number of years &c. &c. Or they treat, only for the time of their reign; for an affair, peculiar to themselves or families &c. Since public treaties, and even those, that are personal, concluded by a king, or 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, independantly 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 predecessor, 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.[”]15

This quotation, 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 shared by the nation, which enabled him to be so beneficent 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?16 The national convention17 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 goverment 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 ill grace, for suffering them still to operate. Her remonstrances, so far as they might be built on the charge of a fraudulent 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.

3. 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 distant inclination to sever us from France, no argument nor influence can oppose itself with success to this new hotbed of dissension.

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 predicts. But suppose that a compliance with the guarantee 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 concentered 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 altercating 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 instantaneous 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 1788, 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 Dut[c]h 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.18

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 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.

From these premisses, 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,19 are here passed over.