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commerce, which admits French ships of war and privateers to come and go freely, with prizes made on their enemies, while their enemies are not to have the same privilege with prizes made on the French ? But Holland and Prussia have approved of this article in our treaty with France, by subscribing to an express salvo cf it in our treaties with them. (Dutch treaty 22, convention 6. Prussian treaty 19.) And England, in her last treaty with France, (Art. 40,) has entered into the same stipulation verbatim, and placed us in her ports on the same footing in which she is in ours, in case of a war of either of us with France. If we are engaged in such a war, England must receive prizes made on us by the French, and exclude those made on the French by
Nay, further ; in this very article of her treaty with France is a salvo of any similar article in any anterior treaty of either party; and ours with France being anterior, this salvo confirms it expressly. Neither of these three powers, then, have a right to complain of this article in our treaty.
6. Is the danger apprehended from the 22d article of our treaty of commerce, which prohibits the enemies of France from fitting out privateers in our posts, or selling their prizes here ; but we are free to refuse the same thing to France, there being no stipulation to the contrary; and we ought to r. fuse it on principles of fair neutrality.
7. But the reception of a minister from the republic of France, without qualifications, it is thought, will bring us into danger; because this, it is said, will determine the continuance of the treaty, and take from us the right of self-liberation, when at any time hereafter our safety would require us to use it. The reception of the minister at all, (in favor of which Colonel Hamilton has given his opinion, though reluctantly, as he confessed,) is an acknowledgment 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 and to 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, and 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 acknowledged to be going on still ?—for it was not pretended the treaty was void, but only voidable if we choose 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 and deny that the most explicit declaration made at this moment that we acknowledge 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 and inevitable danger.
I conclude, then, that few of these sources threaten any danger at all; and from none of them is it inevitable; and consequently, none of them give us the right at this moment of releasing ourselves from our treaties.
II. A second limitation on our right of releasing ourselves, is that we are to do it from so much of the treaties only as is bringing great and inevitable danger on us, and not from the residue, allowing the other party a right at the same time, to determine whether on our non-compliance with that part, they
will declare the whole void. This right they would have, but we should not. Vattel, 2. 202. The only part of the treaty which can really lead us into danger, is the clause of guarantee. That clause is all that we could suspend in any case, and the residue will remain or not at the will of the other party.
III. A third limitation is that when a party from necessity or danger withholds compliance with part of a treaty, it is bound to make compensation where the nature of the case admits and does not dispense with it. 2 Vattel, 324. Wolf, 270.443. If actual circumstances excuse us from entering into the war under the clause of guarantee, it will be a question whether they excuse us from compensation. Our weight in the war admits of an estimate; and that estimate would form the measure of compensation.
If, in withholding a compliance with any part of the treaties, we do it without just cause or compensation, we give to France a cause of war, and so become associated in it on the other side. An injured friend is the bitterest of foes, and France has not discovered either timidity, or over-much forbearance on the late occasions. Is this the position we wish to take for our constituents? It is certainly not the one they would take for themselves.
I will proceed now to examine the principal authority which has been relied on for establishing the right of self-liberation; because though just in part, it would lead us far beyond justice, if taken in all the latitude of which his expressions would admit. Questions of natural right are triable by their conformity with the moral sense and reason of man. Those who write treatises of natural law, can only declare what their own moral sense and reason dictate in the several cases they state. Such of them as happen to have feelings and a reason coincident with those of the wise and honest part of mankind, are respected and quoted as witnesses of what is morally right or wrong in particular cases. Grotius, Puffendorf, Wolf, and Vattel are of this number. Where they agree their authority is strong; but where they differ, (and they often differ,) we must appeal to our own feelings and reason to decide between them. The passages in question shall be traced through all these writers; that we may see wherein they concur, and where that concurrence is wanting. It shall be quoted from them in the order in which they wrote, that is to say, from Grotius first, as being the earliest writer, Puffendorf
, next, then Wolf, and lastly Vattel, as latest in time.
GROTIT. 2. 16. 16. PUFFENDORF &.9.6.
VATTEL 2. 197. Hither inust be reter- It is certain that every
The alliance which is The sume question red the common que alliance made with a re- made with a free people, presents it !f in real altion concerning personal public is real in its nat- or with a popular yuv-liances, and in general and real treaties, It in- iure, and continues con- crnment, is a real alli- on every alliance made derd it be with a free sequently to the terın ance; and as when the with a state, and not in people, there can be lioa-preid on by the treat!, torin of government particular with a king for doubt but that the en- although the magistrales changes, the people re- the defence of his persil. gagement is in its nature who concluded it be inain the saine (for it is lle 00:h'. without real, because the subject dead before, so that the the association which doubt, lu defend our ally is a permanent thing, ind form of givernment is forms the people, and nennst all
invasion, even though the govern- changed even from a not the manner of id-avainst all foreign vice ment of the state budemocracy to a monar- ministering the govern- lence, and even against changed iniu ir hillum, chy; for in lois case the inent). This alliance rebel sulijecis. We
GROTIUS 2. 16. 16. PUFFENDORF 8.9. 6. WOLF 1146.
VATTEL 2. 197. the treaty remains; be- people do not cease to subsists, though the form ought, in like manner, to care the same body re- be the same, and the of government changes, defend a republic agiinmains though the head king, in the case sup- unless, as is evident, the the enterprises of an opchan.ed: and is it was posed, being established reason of the alliance was pressor of the public before now, the govern- by the consent of the particular to the popular liberty. But we ought to ment which is exercised people who abolished stule.
recollect that we are the by a king does not cease the republican govern
ally of the state or of the to be the government of ment, is understood to
nation, and not its judge. the people. There is an accept the crown with
If the nation has deposed exception when the ob- all the engagements
its king in forin; is the ject seems peculiar to which the people con
people of a republic have the government, as if free feveing it had contracted
driven away is igis. cities, contract a league as being free and govern
trates, and have estabfor the delence of their ing themselves. There
lished themselves free, freedom. must nevertheless be an
or if they bave acknowlexception of the alliances
edged the authority of contracted with a view
an usurper, whether exto preserve the present
pressly or tacitly, to opsoverunch'; il two
pose these con est:carrepublics league for mu
rangements to content tual defence in this
their justice or vtilitywho would undertake to
would be to meddle with invade their liberty ; for
the government of the if one of these two peo
nation, and to do it an ple consent afterwards
injury. The ally reinaing voluntarily to change the
the ally of the stale, notform of the governmen!,
withstanding the chance the alliance ends of itself,
which has taken place; because the reason on
but if this chinge rouwhich it was founded
ders the alliance useless, no longer subsists.
dangerous, or disagree able to it, it is free to renounce it ; for it may say with truth, that it
would not hare allied itself with this nation, if it had been under the present form of its gooernment.
The doctrine then of Grotius, Puffendorf, and 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 independently 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; and 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 could say ; but if this change renders the alliance useless, danEcroits 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 the exception exists in all cases, and
its 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, Putiendorf, and Wolf, who admit no such license against the obligation of treaties, and 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 to Fattel himself in those parts of his book where he cannot be misunderstood, and to his known character, as one of the most zealous and constant advocates for the preservation of good faith in all our dealings. Let us hear him on other occasions; and first where he shows what degree of danger or injury will authorize self-liberation from a treaty: “If simple lesion," (lesion-the loss sustained by selling a thing for less than half value, which degree of loss renders the sale void by the Roman law,) " if simple lesion,” says he, " or some degree of disadvantage in a treaty does not suffice to render it invalid, it is not so as to inconvenience which would go to the ruin of the nation. As every treaty ought to be made by sufficient power, a treaty pernicious to the State is null, and not at all obligatory. Vo governor of a nation having power to engage things capable of destroying the State, for the safety of which the empire entrusts to him, the nation itself, bound necessarily to whatever its preservation and safety require, cannot enter into engagements contrary to its 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 himself says, Section 158, “ lesion 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 or renounce his advantages, as he judges proper. The acceptant is not obliged to inform himself of his motives nor to weigh their