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be substituted by the commissioner of Costa Rica for the originals withdrawn by him.
10 Op., 450, Bates, 1863.
As to treaty of Great Britain with Honduras for neutralization of isthmus, see supra, § 40.
As to isthmus, see further infra, §§ 287, ff.
There being no express provision for the surrender of deserting seamen in the convention of 1826, between the United States and Denmark, the laws of the United States for the apprehension of deserters cannot be applied to deserters from a Danish vessel.
6 Op., 148, Cushing, 1853.
As to the negotiations with Denmark in reference to sound dues, see supra, § 29.
As to the circumstances of this treaty, see Mr. James Parton's pamphlet on
The relations of Denmark to the United States, prior to the treaty of 1826, are discussed in 1 Lyman's Diplomacy of the United States, chap. xii.
"Quasi relations were opened with Denmark during the war of the Revolution by Dr. Franklin, who, on the 22d of December, 1779, in a letter to M. Bernstorff, minister for foreign affairs at Copenhagen, remonstrated against the seizure of American prizes within the territorial jurisdiction of the King of Denmark. This question lingered into the middle of the present century.
"On the 27th of February, 1783, the Danish minister for foreign affans wrote a letter to Mr. de Walterstorf, one of his countrymen, in which he said: 'As I know you are on the point of making a tour to France, I cannot omit recommending to you to endeavor, during your stay at Paris, to gain as much as possible the confidence and esteem of Mr. Franklin. You have witnessed the satisfaction with which we have learned the glorious issue of this war for the United States of America, and how fully we are persuaded that it will be for the general interests of the two states to form, as soon as possible, reciprocal connections of friendship and commerce. Nothing certainly would be more agreeable to us than to learn by your letters that you find the same dispositions in Mr. Franklin.'
"De Walterstorf went to Paris and made the acquaintance of Franklin, and assured him that the King had a strong desire to have a treaty of friendship and commerce with the United States. Franklin informed Robert Livingston of the advances, and suggested that Congress should send the necessary powers for entering into the negotiations, but nothing came of it. Franklin could not go on without a special power, and no special power came.
"It was not until 1826 that a commercial convention was concluded at Washington with Denmark. This was transmitted to Congress with President Adams's message at the beginning of the second session of the 19th Congress.
J. C. B. Davis, Notes, &c.
(a) TREATY OF 1778.
The treaty of alliance and that of amity and commerce were both dated on February 6, 1778. The treaty of alliance, after reciting that in the then pending war with Great Britain France and the United States were allies, provided that the "essential and direct end of the present defensive alliance" was to maintain the sovereignty and independence of the United States. This sovereignty and independence the King of France guaranteed to the United States forever. The United States, as an equivalent, guaranteed to the Crown of France all its then possessions in the West India Islands. The treaty proceeded as follows: "In order to fix more precisely the sense and application of the preceding articles, the contracting parties declare that in case of a rupture between France and England the reciprocal guarantee declared in the said arti cles shall have its full force and effect the moment such war shall break out."
The treaty of amity and commerce contained the following stipulations:
As between the parties free ships were to make free goods, except contraband of war, of which a limited list was appended. But enemy's ships, it was agreed, were to make enemy's goods.
In war the men-of-war or privateers of one ally were empowered to board the merchant ships of the other concerning which there was just ground of suspicion. But upon production of a sea-letter in a given form, specified at length, showing that the vessel was not infringing any provision of the treaty, she was at once to be released. In case the sea-letter disclosed the existence of contraband goods, the captors were strictly forbidden to break up the hatches or disturb the cargo, but were peaceably to take the vessel to port for adjudication. The existence of contraband goods on board was not to be considered as infecting the vessel or residue of the cargo. In case of confiscation of such goods, the vessel, with the residue of her cargo, was to be permitted to pro ceed upon her voyage.
The same duties, rights, and benefits were to be allowed in the ports of either ally as were allowed to the most favored nation.
While men-of-war and privateers of either ally were to be entitled freely to enter and leave the ports of the other with their prizes, menof-war and privateers of an enemy of either ally were not to be fitted out in the ports of the other, nor could their prizes be brought into such ports for sale. Permission was to be given to the latter to enter the ports of either ally only when forced in by necessity, and they were to be obliged to retire therefrom as soon as possible.
The opinion of Mr. Jefferson, given to the President on April 18, 1793, assumes that the guarantee in the treaty with France of the West India Islands did not apply until we were called upon by France, and even then not until the islands were invaded or immediately threatened. 7 Jeff. Works, 615, supra, § 133. See 1 Lyman's Diplomacy of the U. S., 38, ff. Mr. Jefferson, in a letter to Mr. Madison of May 19, 1795, states that when Genet presented his letters of credence, he said, "We know that under present circumstances we have a right to call upon you for thẹ
guarantee of our islands. But we do not desire it. We wish you to do nothing but what is for your own good. Cherish your own peace and prosperity."
2 Randall's Jefferson, 140.
Mr. Hamilton, in the essays of Pacificus, published in exposition of General Washington's "neutrality" proclamation of 1793, took the ground that the "guarantee" clause between the United States and France was personal to Louis XVI, and did not apply to the revolutionary governments that succeeded the deposition of that monarch. "Louis the XVI," he argued, "though no more than the constitutional agent of the nation, had at the time the sole power of managing its affairs, the legal right of directing its will and its force. His will alone was active, that of the nation passive. If there was kindness in the decision, demanding a return of good will, it was the kindness of Louis XVI; his heart was the depository of the sentiment. Let the genuine voice of nature, theu, imperverted by political subtleties, pronounce whether the acknowledgment, which may be due for that kindness, can be equitably transferred from him to others who had no share in the decision. It would be to carry the principle (of permanency of treaty obligations) too far and render it infinitely too artificial to attribute to it the effect of transforming such a claim from the prince to the nation, by way of opposition and contrast." Mr. Hamilton, however, in maintaining this position stood almost alone. It has been held by a series of Administrations that our obligations to foreign powers, as well as our claims against them, survive the dynasties from which they took immediate rise, and follow through every change the nations whom these dynasties at the time represented. As a general rule, a treaty is not abrogated by a revolution in the country of one of the contracting parties.
See infra, §§ 240, 248; supra, § 137.
As to neutrality duties under such circumstances, see infra, § 401.
Mr. Madison, under the name of Helvidius, replied, that "a nation, by exercising the right of changing the organ of its will, can neither disengage itself from the obligations, nor forfeit the benefit of its treaties. This is a truth of vast importance, and happily rests with sufficient firmness on its own authority. To silence or prevent cavil I insert, however, the following extract: Since, then, such a treaty (a treaty not personal to the sovereign) 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 monarchyfor the state and the nation are always the same, whatever changes are made in the form of government-and the treaty concluded with the nation remains in force as long as the nation exists.' (Vattel, B. II, § 85.) It follows that as a treaty, notwithstanding the change of a democratic government into a monarchy, continues in force with the new king, in like manner if a monarchy becomes a republic, the treaty made with the king does not expire on that account, unless it were manifestly personal.' (Burham, part iv, c. ix, c. 16.) As a change of government, then, makes no change in the obligations or rights of the party to a treaty, it is clear that the Executive (of the United States) can have no more right to suspend or prevent the operation of a treaty, on account of the change, than to suspend or prevent the operation where no such change has happened. Nor can it bave any more right to suspend
[CHAP. VI. the operation of a treaty in force as a law, than to suspend the operation of any other law."
See supra, § 137; infra, § 402. See also 1 Tucker's Life of Jefferson, 414, 421. The 17th article of the treaty of alliance with France is discussed in a letter from Mr. Pickering, Secretary of State, to Mr. Adet, May 24, 1796, where it is held that "France has no claim of right to sell prizes in the ports of the United States, nor the latter in the ports of France." MSS. Notes, For. Leg. 1 Am. St. Pap. (For. Rel.), 651.
The correspondence in 1796 of Mr. Pickering, Secretary of State, in respect to our relations with France, is given in 1 Am. St. Pap. (For. Rel.), 559 ff. It involves no principle of international law, consisting, on the part of Mr. Pickering, principally of a detailed vindication of the actions of the United States towards France.
"The act of July 7, 1798, annulling the treaties with France, was followed by an act of July 9, 1798, which, without any formal declaration of war, not only authorized the President to instruct the commanders of public armed vessels of the United States to capture any French armed vessel, such captured vessel with her apparel, guns, and appurtenances, with the goods and effects on board the same, being French property, to be brought into the United States, and proceeded against and condemned as forfeited; but the President was authorized to grant special commissions to private armed vessels which should have the same license and authority. 1 Stat. L., 578."
Lawrence's Wheaton (ed. 1863), 507. See supra, §§ 137a, 138; infra, § 248, as to effect of act of 1798.
"Treaties of foreign offensive and defensive alliance are contrary to the declared policy of this Government. In the early years of our independence certain compacts of this nature were projected. A notable instance is found in the treaty with France, concluded in 1778, during the Revolutionary war, by the 11th article of which the United States guaranteed the French possessions in this hemisphere. The fulfillment of this stipulation proved to be the occasion of much embarrassment, and eventually of serious misunderstanding between the two countries, which defeated its object and rendered further entangling alliances,' as Mr. Jefferson characterized them, objectionable to the people of the United States."
Mr. Frelinghuysen, Sec. of State, to Mr. Baker, July 25, 1884. MSS. Inst., Venez. As to construction of treaty of 1778 in respect to admission of French prizes into port, see infra, §§ 394–396.
The treaty between the United States and France of 1778 enabled the subjects of France to purchase and hold lands in the United States. Chirac v. Chirac, 2 Wheat., 259. See Carneal v. Banks, 10 Wheat., 181.
Under the nineteenth article of the treaty (annulled by act of 1798, 1 Stat. L., 578), a French privateer has a right to make repairs in our ports, as the replacement of her force is not an augmentation.
Moodie v. The Phoebe Anne, 3 Dall., 319.
Marshals are not required by law to execute the sentence of a French consul pronounced under the 12th article of the treaty of 1788, relating to protests of masters, &c.
1 Op., 43, Bradford, 1794.
The refusal of a district judge to issue a warrant under the ninth article of the convention between France and the United States, of 1788, cannot be interfered with by the Supreme Court; the latter having no control over a district judge exercising legal discretion.
1 Op., 55, Bradford, 1795.
For the effect of these treaties on the claims of citizens of the United States on its own Government for spoliations which the United States assumed, see infra, § 248.
The seventh article of the treaty of 1778 provided that ships of war and privateers. of France may freely carry the ships and goods taken from their enemies, into the ports of the United States, without being obliged to pay any fees to the officers of the admiralty, or any other judges; that such prizes are not to be arrested or seized when they enter into the ports of the United States; that the officers of the United States shall not make any examination concerning the lawfulness of the prizes; that they may depart at any time, and carry their prizes to the places expressed in their commissions; but that, on the contrary, no shelter or refuge shall be given, in the ports of the United States, to such ships as had been made prize of the subjects, people, or property of France; but if such shall come in, being forced by stress of weather or the danger of the sea, all proper means shall be vigorously used that they go out and retire thence as soon as possible.
Under the neutrality act of 1794 there were a series of arrests of • French vessels in United States ports, the validity of which arrests were adjudicated by the admiralty courts in such ports. Of this intervention of the judiciary the French ministers in the United States complained, holding that French vessels in the United States were under such circumstances entitled to come and go as they pleased. But the reply was that in all cases of disputed rights, the judiciary must be appealed to; and that whether such a right as that claimed by France was given by the treaty was the question at issue, which, under a constitutional system like that of the United States, the courts must, for municipal purposes, decide.
As to the rightfulness of this position, see supra, § 9.
The letters of the French ministers, with the accompanying papers, and the replies by Mr. Randoph and Mr. Pickering, are given in 1 Am. St. Pap. (For. Rel.), 559 ff.
"On the 29th of November, 1775, Congress appointed a committee of secret correspondence,' whose duty it would be to correspond with the friends of the colonies in other parts of the world. On the 3d of March, 1776, this committee instructed Silas Deane to proceed to France to enter into communication with M. de Vergennes, and to ascertain, if possible, whether, if the colonies should be forced to form themselves into an independent state, France would into any treaty or alliance with them for commerce or defeuse, or both.' These instructions were signed by Dr. Franklin, Benjamin Harrison, John Dickinson, Robert Morris, and John Jay, and the practical wis