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to renounce the treaties if such further changes should afterwards take place as could "bona fide be pronounced to render a continuance of the connections which render them disadvantageous or dangerous."
"In conformity with this, their idea of the defective state of the national authority, you were desired from hence to suspend further payments of our debt to France till new orders, with an assurance, however, to the acting power that the suspension should not be continued a moment longer than should be necessary for us to see the re-establishment of some person, or body of persons, authorized to receive payment and give us a good acquittal (if you should find it necessary to give any assurance or explanation at all). In the mean time we went on paying up the four millions of livres which had been destined, by the last constituted authorities, to the relief of St. Domingo. Before this was completed we received information that a national assembly had met, with full powers to transact the affairs of the nation, and soon afterwards the minister of France here presented an application for three millions of livres to be laid out in provisions to be sent to France. Urged by the strongest attachments to that country, and thinking it even providential that moneys lent to us in distress could be repaid under like circumstances, we had no hesitation to comply with the application, and arrangements are accordingly taken for furnishing this sum at epochs accommodated to the demand and our means of paying it. We suppose this will rather overpay the installments and interest due on the loans of 18, 6, and 10 millions, to the end of 1792, and we shall certainly use our utmost endeavors to make punctual payments of the installments and interest hereafter becoming exigible, and to omit no opportunity of convincing that nation how cordially we wish to serve them. Mutual good offices, mutual affection, and similar principles of government seem to destine the two nations for the most intimate communion; and I cannot too much press it on you to improve every opportunity which may occur in the changeable scenes which are passing, and to seize them as they occur, for placing our commerce with that nation and its dependencies on the freest and most encouraging footing possible."
Mr. Jefferson, Sec. of State, to Mr. Morris, Mar. 12, 1793. MSS. Inst., Ministers. Printed, though inaccurately, in 3 Jeff. Works, 521, 522.
"We have already referred to the opposing views of the two parties in the Cabinet on the effect of the change in the French constitution on existing treaties. In stating his opinion the Secretary of State said: '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 organization of them in form or function, whenever they please. Consequently the treaties between the United States and France were not treaties between the United States and Louis Capet, but between the two nations of America and France, and the nations remaining in existence, though both of them have since changed their forms of gov ernment, the treaties are not annulled by these changes.' Mr. Jeffer
son combated the passage from Vattel (Liv. ii, ch. 12, § 197), on which the Secretary of the Treasury had based his argument for the abrogation of the treaties. After admitting that an ally remains an ally of the state notwithstanding the change of government either by a nation deposing its King or a people of a Republic driving out its magistrates, and acknowledging an usurper, the author had added: 'If, however, this change renders the alliance useless, dangerous, or disagreeable to the other, it may renounce it, for it may say with truth that it would not have allied itself with this nation if it had been under the present form of its government.' Mr. Jefferson showed that Vattel, in this phrase, was not sustained by other writers on the law of nations, particularly Grotius, Puffendorf and Wolf, nor with the general tenor of his own work, nor had it been true would it have been applicable. Who,' he asks, 'is the American who can say with truth that he could not have allied himself with France if she had been a Republic or that a Republic of any form would be as disagreeable as her ancient despotism?' He concluded that 'the treaties are still binding, notwithstanding the change of government in France, that no part of them but the clause of guarantee holds out danger even at a distance, and consequently that a liberation from no other part could be prop sed 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, and to every moral feeling; that were it not so those treaties are in fact neither useless nor disagreeable.' Tucker's Life of Jefferson, vol. i, 414, 421." See infra, § 148.
"Mr. Hamilton, after assuming that the guarantee applied only to a defensive war, in order to show that that was not the character of the one in which France was engaged, cites from Burlamaqui: 'We must say that generally the first who takes up arms, whether justly or unjustly, commences an offensive war.' (Hamilton's Works, vol. iv, 366, 382. Answers to questions proposed by the President, April, 1793.) Even the proposition is stated in a qualified manner, as applying en général; while from what follows it is apparent that Burlamaqui means to give a definition referring to the military operations of a war, and not affecting, in any sense, its political or moral merits. He adds: Those who regard the words offensive war as an odious term, always implying something unjust, and who consider a defensive war as inseparable from justice, confuse all ideas and embarrass a matter of itself suffi ciently clear.' (Principes du droit politique, part iv, ch. 3, § 5, p. 802.) The correct view, and which accords with our text, is thus given by Klüber: The war is defensive (bellum defensivum) on the side of the party which only desires to defend its rights, in order to obtain security or reparation; offensive, on the contrary (bellum offensivum), on the side of the party which attempts to violate the rights of another. This denomination is the same, whether one or the other of the belligerents has commenced the hostilities; for the war is not the less defensive, if the party attacks by virtue of the right of prevention, this right being one of pure defense.' Droit des gens, part II, tit. 2, sec. 2, ch. 1, § 236. See also, to the same effect, Halleck's Int. Law, 329.
"It would seem at this day somewhat extraordinary that the establishment of a Republic in France should be deemed a sufficient ground for the abrogation of our treaties, especially as they had for their avowed object the founding of republican institutions here; while, as is stated by Mr. Wheaton in the text, 'it would show more than an ordinary de
fect of understanding to confound a war defensive in its principles with a war defensive in its operations. Where attack is the best mode of providing for the defence of a state, the war is defensive in principle, though the operations are offensive.'
"The causes which led to the wars of the French revolution are well explained in another work of our author (History of the Law of Nations, 344-372), from which it will appear that the object of the coalitions of the great European powers against France was a restoration, contrary to the will of the nation, of the old order of things, and that the declarations of war, on her part, only anticipated the action of her enemies.'
"A proclamation was issued by the President, April 22, 1793, declaring that, 'Whereas it appears that a state of war exists between Austria, Prussia, Sardinia, Great Britain, and the United Netherlands on the one part, and France on the other, the duty and interests of the United States require that they should, with sincerity and good faith, adopt and pursue a conduct friendly and impartial towards the belligerent powers.' (1 Wait's Am. St. Pap. 44.) As to the question of guarantee, the President decided that a minister should be received on the same terms as formerly, and that the obligations of the treaties ought to remain in full force, leaving the subject of guarantee for future consideration, aided by a better knowledgeof the condition and prospects of France.' Sparks's Writings of Washington, vol. i, p. 486."
Lawrence's Wheaton (ed. 1863), 490-492. For Mr. Hamilton's argument, see more fully infra, § 148. As to this "guarantee," see more fully infra, §§ 148, 248.
Mr. Hildreth, of all our historians the most decided in vindicating the views of the old Federalists, states the position of Hamilton and Knox as follows: "They admitted the right of France to change her government, but they questioned her right after such a change to hold the United States to treaties made with a view to a totally different state of things, and which, if now carried out, might impose obligations on the United States, and expose them to dangers never dreamed of when the treaties were made."
4 Hildreth, U. S., 413, 414.
For Mr. Hamilton's pamphlet "Pacificus," see 4 Ham. Works (ed. 1885), 135. For a notice of his consequent discussion with Mr. Madison, see infra, § 402.
"I have read your notes of the 8th and of the 17th of March last, and the inclosures of the latter, with the care and attention which I desire to give to everything written under the instructions of your Government.
"By selecting and separating a particular fact in history from the other facts and circumstances with which it is connected, and thus considering it in an isolated form, it is possible to receive entirely erroneous impressions. Such an impression seems to have been formed by you in consequence of a partial consideration of the short extracts from the voluminous correspondence conducted between Holland and the United States after the close of the wars of Napoleon, which are inclosed in your note of the 17th of March.
"A brief review of the history of the commercial relations between the two countries will show how erroneous this impression is.
S. Mis. 162-VOL. II-4
"The wise founders of this Government, even before the national independence was achieved, recognized the importance to the new nation of cultivating friendship and commercial intercourse with the Netherlands; and their advances in this direction met with an equal consideration at the hands of the States-General. The treaty of 1782 between the two powers is declared to be made for establishing the most perfect equality and reciprocity, reserving withal to each party the liberty of admitting at its pleasure other nations to a participation of the same advantages.'
"For this purpose it was mutually agreed that each should enjoy for its subjects and citizens in the ports or territories of the other all rights, liberties, privileges, immunities, and exemptions in trade, navigation, and commerce which are or should be accorded to the most favored nations by the other, and that the duties or imposts imposed by each upon the subjects or citizens of the other were not to exceed those which were or might be imposed upon the citizens or subjects of the most favored nations. In other words, in was agreed that the rights of each in the territories of the other in these respects should be measured by the largest liberties accorded to the most favored nation.
"The power with which the United States contracted these relations is described in the treaty as 'their High Mightinesses the States General of the United Netherlands.' In a circular letter from their High Mightinesses, addressed to the States of the United Provinces, dated the 10th of February, 1793, they describe themselves as a pacific Republic,' and their principal magistrate is styled by them 'the Stadtholder of the United Netherlands, of which he is not the sovereign, but an illustrious personage, attached to this Republic by eminent dignities, with which he is invested under the sovereignty of the states of the provinces, the union of which represents the sovereignty of the confederation.'
"Hostilities between the United Provinces and France broke out in 1793, and continued with varying fortunes until December, 1795, when the Stadtholder abandoned the country. Another form of republican government was established over what was substantially the same territory, which was styled at first the Republic of the United Provinces and afterward the Batavian Republic. The revolutionary government came into complete possession of political power, so far as related to foreign powers, and was recognized by many of the other powers, among whom were the United States. It was recognized by Great Britain in the treaty of Amiens, to which it was a party.
"Subsequently this republic became a monarchy, with a Bonaparte as king, and this monarchy in a few years disappeared in its turn, and the whole territory of the old seven United Provinces was incorporated into the French Empire, and disappeared as a separate nationality.
"On the abdication of the Emperor Napoleon the allies entered into a secret treaty at Paris, in which it was agreed that the establishment
of a just balance of power in Europe required that Holland should be so constituted as to be enabled to support her independence, and that therefore the countries comprised between the sea, the frontiers of France and the Meuse, should be given up forever to Holland.
"In the following year this secret article was carried into effect in the congress at Vienna. The sixty-fifth article of the general treaty of all the powers and the first article of the particular treaty respecting the Netherlands, alike provide that the old United Provinces of the Netherlands and the former Belgic provinces, and certain other countries therein designated, should form, under the sovereignty of the house of Orange, the Kingdom of the Netherlands. In conformity with their practice to recognize de facto Governments, the United States recognized this political change and entered into diplomatic relations with this new Government.
"During these frequent political changes, and mainly during the last two years of the reign of Louis Bonaparte, several vessels of the United States and their cargoes were seized and condemned or confiscated in the ports which had before then formed the territorial domain of their High Mightinesses the States-General. When peace was restored, the United States, who had not been parties to the dismemberment or to the reorganization of continental Europe, made application to the government of the house of Orange for compensation for the injuries which their citizens had suffered in this way. The instructions to make these representations were dated the 9th of May, 1815, before the din of war had ceased.
"A long discussion ensued, conducted in Holland, and extending from 1815 to 1820; but before considering it, in order to preserve a chronological sequence of events, I must refer to certain events which took place in Washington in 1815 and 1816, and which were referred to in my note to you of the 19th of February last.
"The negotiations at Washington were commenced by a note from Mr. Changuion, the then Dutch minister, to Mr. Monroe, the then Secretary of State, dated the 24th of February, 1815, in which he transmitted the first overtures which he was instructed to make in order to open negotiations for a treaty of amity and commerce,' and proposed 'as a base for the new treaty to be concluded the text of the old treaty concluded in 1782, with the exception of the changes made necessary by the actual circumstances.'
"Mr. Monroe replied to this on the 15th of April, 1815, thus: "The treaties between the United States and some of the powers of Europe having been annulled by causes proceeding from the state of Europe for some time past, and other treaties having expired, the United States have now to form their system of commercial intercourse with every power, as it were, at the same time. You have proposed to form a new treaty. To this the President has readily agreed.