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cide, according to its own sense of the public good, on one side as on the other side. Had the proclamation prejudged the question on either side, and proclaimed its decision to the world ; the legislature, instead of being as free as it ought, might be thrown under the dilemma, of either sacrificing its judgment to that of the executive; or, by opposing the executive judgment, of pro. ducing a relation between the two departments, extremely delicate among ourselves, and of the worst influence on the national character and interests abroad. A variance of this nature, it will readily be perceived, would be very different from a want of conformity to the mere recommendations of the executive, in the measures adopted by the legislature.
It does not appear that such a proclamation could have even pleaded any call, from either of the parties at war with France, for an explanation of the light in which the guarantee was viewed. Whilst, indeed, no positive indication whatever was given of hostile purposes, it is not conceived, that any power could have decently made such an application; or if it had, that a proclamation would have been either a satisfactory, or an honourable answer. It could not have been satisfactory, if serious apprehensions were entertained, because it would not have proceeded from that authority which alone could definitively pronounce the will of the United States on the subject. It would not have been honourable, because a private diplomatic answer only, is due to a private diplomatic application ; and to have done so much more, would have marked a pusillanimity and want of dignity in the executive magistrate...
But whether the executive was or was not applied to, or whatever weight be allowed to that circumstance, it ought never to be presumed, that the executive would so abruptly, so publicly, and so solemnly, proceed to disclaim a sense of the contract, which the otber party might consider and wish to support by discussion, as its true and reasonable import. It is asked, indeed, in a tone that sufficiently displays the spirit in which the writer construes both the proclamation and the treaty,
much the Foreign dutiese treaty, thoufned by b
y itself.se of the ind rights
e did the executive stand in need of the logic of a fo. “ reign agent to enlighten it as to the duties or the inte. “ rests of the nation; or was it bound to ask his consent “ to a step which appeared to itself consistent with the 66 former, and conducive to the latter ? The sense of 6 treaties was to be learnt from the treaties themselves." Had he consulted his Vatel, instead of his animosity to France, he would have discovered that however bumi. liating it might be to wait for a foreign logic, to assist the interpretation of an act depending on the national authority alone, yet in the case of a treaty, which is as much the treaty of a foreign nation, as it is ours, and in which foreign duties and rights are as much involved as ours, the sense of the treaty, though to be learnt from the treaty itself, is to be equally learned by both parties to it. Neither of them can have a right more than the other, to say what a particular article means; and where there is equality without a judge, consultation is as consistent with dignity as it is conducive to harmony and friendship. Let Vatel however be heard on the subject.
66 The third general maxim, or principle, on the sub66 ject of interpretation [of treaties] is : “ that neither 66 the one nor the other of the interested or contracting 66 powers has a right to interpret the act or treaty at its 66 pleasure. For if you are at liberty to give my pro« mise what sense you please, you will have the power 66 of obliging me to do whatever you have a mind, con66 trary to my intention, and beyond my real engage66 ment : and reciprocally, if I am allowed to explain 66 my promises as I please, I may render them vain and 66 illusive, by giving them a sense quite different from " that in which they were presented to you, and in which 66 you must have taken them in accepting them." Vat. B. II. c. vii. $ 265.
The writer ought to have been particularly sensible of the improbability that a precipitate and ex parte decision of the question arising under the guarantee, could have been intended by the proclamation. He had but just gone through his undertaking, to prove that the article of guarantee like the rest of the treaty is defensive, rot offensive. He had examined his books and retailed his quotations, to shew that the criterion between the two kinds of war is the circumstance of priority in the attack. He could not therefore but know, that accord. ing to his own principles, the question, whether the United States were under an obligation or not to take part in the war, was a question of fact whether the firstattack was made by France or her enemies. And to de. cide a question of fact, as well as of principle, without waiting for such representations and proofs as the absent and interested party might have to produce, would have been a proceeding contrary to the ordinary maxims of justice, and requiring circumstances of a very peculiar nature, to warrant it towards any nation. Towards a nation which could verify her claim to more than bare justice by our own reiterated and formal acknowledgments, and which must in her present singular and interesting situation have a peculiar sensibility to marks of our friendship or alienation, the impropriety of such a proceeding would be infinitely increased, and in the same proportion the improbability of its having taken place.
There are reasons of another, sort which would have been a bar to such a proceeding. It would have been as impolitic as it would have been unfair and unkind.
If France meant not to insist on the guarantee, the measure, without giving any present advantage, would have deprived the United States of a future claim which may be of importance to their safety. It would have inspired France with jealousies of a secret bias in this country toward some of her enemies, wbich might have left in her breast a spirit of contempt and revenge, of which the effects might be felt in various ways. It must in particular haye tended to inspire her with a disinclination to feed our commerce with those important advantages which it already enjoys, and those more important ones which it anxiously contemplates. The nation that consumes more of the fruits of our soil than any other nation in the world, and supplies the only foreign raw* material of extensive use in the United States,
derstand its par interest, and me
120 sz ráat the comm
sarils provoked by those who un. rei
This interest, and make it their study, as :rket the common-place remark will be inE-commercial privileges are not worth
a net secured by mutual interest; and neurbasing because they will grow of them. Mis mutual interest.” Prudent men, who
ibeir reason to be misled by their prejuTrw the subject in a juster light. They will
commercial privileges are not worth pur. por are worth having without purchase ; that sance of a great nation, there are valuable pripoh may be granted or not granted, or granted
is or that country, without any sensible influthe interest of the nation itself; that the friendly
dls disposition of a country, is always an arti. sweat in the calculations of a comprehensive in
that some sacrifices of interest will be made to Tatives, by nations as well as by individuals,
sex with the same frequency, or in the same proos; that more of a disinterested conduct, or of a and founded on liberal views of interest, prevails in sijous than in others; that as far as can be seen
jaluence of the revolution on the genius and the or of France, particularly with regard to the United S efery thing is to be hoped by the latter on this ent, which one country can reasonably hope from
sif. In this point of view, a greater error could not ve been committed than in a step that might have
the present disposition of France to open her ere to us as far as a liberal calculation of her inat would permit, and her friendship towards us, and idence in our friendship towards her, could prompt,
a disposition to shut it as closely against us as the mited motives of interest, of distrust, and of ill will, comld urge her, On the supposition that France might intend to claim aantee, a hasty and harsh refusal before we were
a ground that accused her of being the aggres.
sor in the war against every power in the catalogue of her enemies, and in a crisis when all her sensibility must be alive towards the United States, would have given every possible irritation to a disappointment which every motive that one nation could feel towards another and towards itself, required to be alleviated by all the circumspection and delicacy that could be applied to the occasion.
The silence of the executive, since the accession of Spain and Portugal to the war against France throws great light on the present discussion. Had the proclamation been issued in the sense, and for the purposes ascribed to it, that is to say, as a declaration of neutrality, another would bave followed, on that event. If it was the right and duty of the government, that is, the presi. dent, to manifest to Great Britain and Holland, and to the American merchants and citizens, his sense, his disposition, and his views on the question, whether the United States were, under the circumstances of the case, bound or not, to erecute the clause of guarantee, and not to leave it uncertain whether the executive did or did not believe a state of neutrality to be consistent with our treaties; the duty, as well as the riglit, prescribed a similar manifestation to all the parties concerned after* Spain and Portugal had joined the other maritime enemies of France. The opinion of the executive with respect to a consistency or inconsistency of neutrality with treaties, in the latter case, could not be inferred from the proclamation in the former, because the circumstances might be different : the war in the latter case might be defensive on the side of France, though offen. sive against her other enemies. Taking the proclamation in its proper sense, as reminding all concerned, that as the United States were at peace (that state not being affected by foreign wars, and only to be changed by the legislative authority of the country) the laws of peace were still obligatory, and would be enforced ; and the
The writer is betrayed into an acknowledgment of this in his seventh number, where he applies his reasoning to Spain as well as to Great Britain and Holland. He had forgotten that Spain was not included in the proclamation.