Sir:—I have, herewith, enclosed the result of our assays, &c., of the coins of France, England, Spain, and Portugal. In the course of the experiments, a very small source of error was detected, too late for the present occasion, but which will be carefully guarded against in future.I am, with the most perfect esteem, your most obedient humble servant,DAVID RITTENHOUSE,Director of the Mint.Thomas Jefferson,Secretary of State.B.Assay of gold coins.DateIn 24 grains.Specific gravity.Fine gold.Alloy.grs.32 pts.grs.32 pts.French guineas,{1726211621617.48{1734211921317.38{1742212620617.58{1753210322917.23{1775212221017.57Double do.{1786212221017.51{1789212221017.50{1790212520717.57Spanish pistoles,{1776212121117.53{1780210030017.57{1786211821417.63{1788210223017.00English guineas,{1755212820417.78{1777213120117.75{1785213020217.78{1788213120117.79{1789220312917.78{1791220113117.74Half johannes of Portugal,{1739213120117.63{1770220512717.78{1776220512717.87{1785213020217.68{1788213120117.78Silver coins.DateIn 12 ounces.Fine silver.Alloy.oz.dwts.grs.oz.dwts.grs.English half-crown of William III.101909½10014½English shilling,1787110002½01921½French crown,179110160010400French half-crown,173910170010300French half-crown,179210161910305Spanish dollar of{177210150510419{1782101402½10521½{179010140010600{1791101421½10502½Mint, January 7, 1793.Assayed by Mr. David Ott, under my inspection, at the mint, in pursuance of a resolution of Congress of November 29, 1792. I have added the specific gravity of each piece of gold coin.DAVID RITTENHOUSE,Director of the Mint.
Sir:—I have, herewith, enclosed the result of our assays, &c., of the coins of France, England, Spain, and Portugal. In the course of the experiments, a very small source of error was detected, too late for the present occasion, but which will be carefully guarded against in future.
I am, with the most perfect esteem, your most obedient humble servant,
DAVID RITTENHOUSE,Director of the Mint.
Thomas Jefferson,Secretary of State.
Assay of gold coins.
Silver coins.
Mint, January 7, 1793.
Assayed by Mr. David Ott, under my inspection, at the mint, in pursuance of a resolution of Congress of November 29, 1792. I have added the specific gravity of each piece of gold coin.
DAVID RITTENHOUSE,Director of the Mint.
February 16, 1793.
The Secretary of State, to whom was referred, by the House of Representatives of the United States, the petition of John Rogers, setting forth, that as an officer of the State of Virginia,during the last war, he became entitled to two thousand acres of lands on the north-east side of the Tennessee, at its confluence with the Ohio, and to two thousand four hundred acres in different parcels, between the same river and the Mississippi, all of them within the former limit of Virginia, which lands were allotted to him under an act of the Legislature of Virginia, before its deed of cession to the United States; that by the treaty of Hopewell, in 1786, the part of the country comprehending these lands was ceded to the Chickasaw Indians; and praying compensation for the same,
Reports, That the portion of country comprehending the said parcels of land, has been ever understood to be claimed, and has certainly been used, by the Chickasaw and Cherokee Indians for their hunting grounds. The Chickasaws holding exclusively from the Mississippi to the Tennessee, and extending their claim across that river, eastwardly, into the claims of the Cherokees, their conterminous neighbors.
That the government of Virginia was so well apprized of the rights of the Chickasaws to a portion of country within the limit of that State, that about the year 1780, they instructed their agent, residing with the southern Indians, to avail himself of the first opportunity which should offer, to purchase the same from them, and that, therefore, any act of that Legislature allotting these lands to their officers and soldiers must probably have been passed on the supposition, that a purchase of the Indian right could be made, which purchase, however, has never been made.
That, at the treaty of Hopewell, the true boundary between the United States on the one part, and the Cherokees and Chickasaws on the other, was examined into and acknowledged, and by consent of all parties, the unsettled limits between the Cherokees and Chickasaws were at the same time ascertained, and in that part particularly, were declared to be the highlands dividing the waters of the Cumberland and Tennessee, whereby the whole of the petitioner's locations were found to be in the Chickasaw country.
That the right of occupation of the Cherokees and Chickasaws in this portion of the country, having never been obtained by the United States, or those under whom they claim it, cannot be said to have been ceded by them at the treaty of Hopewell, but only recognized as belonging to the Chickasaws, and retained to them.
That the country south of the Ohio was formerly contested between the Six Nations and the southern Indians for hunting grounds.
That the Six Nations sold for a valuable consideration to the then government their right to that country, describing it as extending from the mouth of the Tennessee upwards. That no evidence can at this time and place be procured, as to the right of the southern Indians, that is to say, the Cherokees and Chickasaws, to the same country; but it is believed that they voluntarily withdrew their claims within the Cumberland river, retaining their right so far, which consequently could not be conveyed from them, or to us, by the act of the Six Nations, unless it be proved that the Six Nations had acquired a right to the country between the Cumberland and Tennessee rivers by conquest over the Cherokees and Chickasaws, which it is believed cannot be proved.
That, therefore, the locations of the petitioner must be considered as made within the Indian territory, and insusceptible of being reduced into his possession, till the Indian right be purchased.
That this places him on the same footing with Charles Russell and others, officers of the same State, who had located their bounty lands in like manner, within the Chickasaw lines, whose case was laid before the House of Representatives of the United States at the last session, and remains undecided on; and that the same and no other measure should be dealt to this petitioner which shall be provided for them.
March 10, 1793.
The Secretary of State, according to instructions received from the President of the United States,
Reports, That, for the information of the commissioners appointed to treat with the western Indians, he has examined the several treaties entered into with them subsequent to the declaration of Independence, and relating to the lands between the Ohio and the lakes, and also the extent of the grants, reservations, and appropriations of the same lands, made either by the United States, or by individual States within the same period, and finds that the lands obtained by the said treaties, and not so granted, reserved, or appropriated, are bounded by the following lines, to wit:
Northwardly. By a line running from the fork of the Tuscarora's branch of the Muskingum, at the crossing-place above Fort Lawrence. Westwardly (towards the portage of the Big-Miami) to the main branch of that river, then down the Miami, to the fork of that river next below the old fort, which was taken by the French in 1752, thence due west to the river De la Panse, and down that river to the Wabash; which lines were established with the Wiandots, Delawares, Chippawas, and Ottawas, by the treaty of Fort McIntosh, and with the Shawanese by that of the Great Miami.
Westwardly. By the bounds of the Wabash Indians.
Eastwardly. By the million of acres appropriated to military claimants, by the resolution of Congress of October 23, 1787, and lying in the angle between the seventh range of townships counted westwardly, from the Pennsylvania boundary, and the tenth range counted from the Ohio northwardly along the said seventh, which million of acres may perhaps extend westwardly, so as to comprehend the twelfth range of townships, counted in that direction from the Pennsylvania boundary, under which view thesaid twelfth range may be assumed for the eastern boundary of the territory now under consideration, from the said tenth range to the Indian line.
Southwardly. By the northern boundary of the said tenth range of townships to the Sioto river, and along the said river to what shall be the northern limits of the appropriations for the Virginia line; (which two last lines are those of the lands granted to the Sioto company,) thence along what shall be thenorthernlimits of the said appropriations of the Virginia line to the little Miami, and along the same to what shall be the northern limit of one million of acres of land purchased by John C. Symmes; thence due west along the said northern limit of the said John C. Symmes, to the Great Miami, and down the same to its mouth, then along the Ohio to General Clark's lands, and round the said lands to the Ohio again, and down the same to the Wabash, or the lands of the Indians inhabiting it. Which several lines are delineated on the copy of Hutchins' map accompanying this report; the dotted parts of the delineation denoting that they are conjectural. And it is further necessary to apprize the commissioners that though the points at which these several lines touches the Ohio, are taken from actual surveys, yet the country included by the said lines, not being laid down from actual survey, their lengths and intersections with each other, and with the watercourses, as appearing in the maps, are not at all to be relied on. No notice is here taken of the lands at the mouth of the Ohio appropriated for military bounties by the same resolution of Congress of October 22, 1787, nor of the settlement of Cahokea, Kaskaskia, Post Vincennes, &c., because these can concern no Indians but those of the Illinois and Wabash, whose interests should be transacted with themselves separately, and not be permitted to be placed under the patronage of the western Indians.
April 18, 1793.
The Secretary of State thinking it his duty to communicate to the President his proceedings of the present year for transferring to Europe the annual fund of $40,000 appropriated to the Department of State, (a report whereof, was unnecessary the two former years, as monies already in the hands of our bankers in Europe were put under his orders,)
Reports, That in consequence of the President's order of March 23d, he received from the Secretary of the Treasury, March 31st, a warrant on the Treasurer for $39,500; that it being necessary to purchase private bills of exchange to transfer the money to Europe, he consulted with persons acquainted with that business, who advised him not to let it be known that he was to purchase bills at all, as it would raise the exchange; and to defer the purchase a few days until the British packet should be gone, on which event bills generally sunk some few per cent. He therefore deferred the purchase, or giving any orders for it till April 10th, when he engaged Mr. Vaughan (whose line of business enabled him to do it without suspicion,) to make the purchase for him. He then delivered the warrant to the Treasurer, and received a credit at the Bank of the United States for $39,500, whereon he had an account opened between "The Department of State and the Bank of the United States." That Mr. Vaughan procured for him the next day the following bills:
Willing, Morris, and Swanwich, on John and Francis Baring & Co., London, £3,000=$13,000.
Walter Stewart on Joseph Birch, March, Liverpool, £400=$1,733 33.
Robert Gilmer & Co., on James Strachan and James Mackenzie, London, endorsed by Mordecai Lewis.
Averaging 4s. 738⁄100d. the dollar, or about 2½ per cent. above par, which added to the one per cent loss heretofore always sustained on the government bills (which allowed but 99 florins, instead of 100 do. for every $40) will render the fund somewhat larger this year than heretofore; that these bills being drawn on London, (for none could be got on Amsterdam but to considerable loss, added to the risk of the present possible situation of that place), he had them made payable to Mr. Pinckney, and enclosed them to him by Captain Cutting, in the letter of April 12th, now communicated to the President, and at the same time wrote the letters of the same date to our bankers at Amsterdam and to Col. Humphreys, now also communicated to the President, which will place under his view the footing on which this business is put, and which is still subject to any change he may think proper to direct, as neither the letters, nor bills are yet gone.
The Secretary of State proposes, hereafter, to remit in the course of each quarter $10,000 for the ensuing quarter, as that will enable him to take advantage of the times when exchange is low. He proposes to direct, at this time, a further purchase of $12,166 66, (which with the $500 formerly obtained and $17,333 33 now remitted, will make $30,000 of this year's fund,) at long sight, which circumstance with the present low rate of exchange, will enable him to remit it to advantage.
He has only further to add that he delivered to Mr. Vaughan orders on the bank of the United States in favor of the persons themselves from whom the bills were purchased, for their respective sums.
April 28, 1793.
I proceed in compliance with the requisition of the President to give an opinion in writing on the general question, whetherthe United States have a right to renounce their treaties with France, or to hold them suspended till the government of that country shall be established?
In the consultation at the President's on the 19th inst., the Secretary of the Treasury took the following positions and consequences. France was a monarchy when we entered into treaties with it; but it has declared itself a republic, and is preparing a republican form of government. As it may issue in a republic or a military despotism, or something else which may possibly render our alliance with it dangerous to ourselves, we have a right of election to renounce the treaty altogether, or to declare it suspended till their government shall be settled in the form it is ultimately to take; and then we may judge whether we will call the treaties into operation again, or declare them forever null. Having that right of election, now, if we receive their minister without any qualifications, it will amount to an act of election to continue the treaties; and if the change they are undergoing should issue in a form which should bring danger on us, we shall not be then free to renounce them. To elect to continue them is equivalent to the making a new treaty, at this time, in the same form, that is to say, with a clause of guarantee; but to make a treaty with a clause of guarantee, during a war, is a departure from neutrality, and would make us associates in the war. To renounce or suspend the treaties, therefore, is a necessary act of neutrality.
If I do not subscribe to the soundness of this reasoning, I do most fully to its ingenuity. I shall now lay down the principles which, according to my understanding, govern the case.
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; that all the acts done by these agents under the authority of the nation, are the acts of the nation, are obligatory to them and enure to their use, and can in no wise be annulled or affected by any change in the form ofthe government, or of the persons administering it, 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 government, the treaties are not annulled by these changes. The law of nations, by which this question is to be determined, is composed of three branches. 1. The moral law of our nature. 2. The usages of nations. 3. Their special conventions. The first of these only concerns this question, that is to say the moral law to which man has been subjected by his creator, and of which his feelings or conscience, as it is sometimes called, are the evidence with which his creator has furnished him. The moral duties which exist between individual and individual in a state of nature, accompany them into a state of society, and the aggregate of the duties of all the individuals composing the society constitutes the duties of that society towards any other; so that between society and society the same moral duties exist as did between the individuals composing them, while in an unassociated state, and their maker not having released them from those duties on their forming themselves into a nation. Compacts then, between nation and nation, are obligatory on them by the same moral law which obliges individuals to observe their compacts. There are circumstances, however, which sometimes excuse the non-performance of contracts between man and man; so are there also between nation and nation. When performance, for instance, becomesimpossible, non-performance is not immoral; so if performance becomesself-destructiveto the party, the law of self-preservation overrules the laws of obligation in others. For the reality of these principles I appeal to the true fountains of evidence, the head and heart of every rational and honest man. It is there nature has written her moral laws, and where every man may read them for himself. He will never read there the permission to annul his obligations for a time, or forever, whenever they become dangerous, useless, or disagreeable; certainly not when merelyuseless or disagreeable, as seems to be said in an authority which has been quoted, (Vattel, p. 2, 197) and though he may, under certain degrees of danger, yet the danger must be imminent, and the degree great. Of these, it is true, that nations are to be judges for themselves; since no one nation has a right to sit in judgment over another, but the tribunal of our consciences remains, and that also of the opinion of the world. These will revise the sentence we pass in our own case, and as we respect these, we must see that in judging ourselves we have honestly done the part of impartial and rigorous judges.
But reason which gives this right of self-liberation from a contract in certain cases, has subjected it to certain just limitations.
I. The danger which absolves us must be great, inevitable and imminent. Is such the character of that now apprehended from our treaties with France? What is that danger? 1st. Is it that if their government issues in a military despotism, an alliance with them may taint us with despotic principles? But their government when we allied ourselves to it, was perfect despotism, civil, and military, yet the treaties were made in that very state of things, and, therefore, that danger can furnish no just cause.
2d. Is it that their government may issue in a republic, and too much strengthen our republican principles? But this is the hope of the great mass of our constituents, and not their dread. They do not look with longing to the happy mean of a limited monarchy.
3d. But, says the doctrine I am combatting, the change the French are undergoing, may possibly end in something we know not what, and may bring on us danger we know not whence. In short, it may end in a Raw-head and bloody bones in the dark. Very well—let Raw-head and bloody bones come. We shall be justified in making our peace with him by renouncing our ancient friends and his enemies; for observe, it is not thepossibility of dangerwhich absolves a party from his contract for that possibility always exists, and in every case. It existed in the present one, at the moment of making the contract. Ifpossibilitieswould void contracts, there never could be a validcontract, for possibilities hang over everything. Obligation is not suspended till the danger is become real, and the moment of it so imminent, that we can no longer avoid decision without forever losing the opportunity to do it. But can a danger which has not yet taken its shape, which does not yet exist, and never may exist which cannot therefore be defined—can such a danger, I ask, be so imminent that if we fail to pronounce on it in this moment, we can never have another opportunity of doing it?
4. As to the danger apprehended, Is it that (the treaties remaining valid) the clause guaranteeing their West Indian lands will engage us in the war? But does the guarantee engage us to enter into the war on any event? Are we to enter into it before we are called on by our allies?
Have we been called on by them? Shall we ever be called on?
Is it their interest to call on us?
Can they call on us before their islands are invaded, or immediately threatened?
If they can save them themselves, have they a right to call on us?
Are we obliged to go to war at once, without trying peaceable negotiations with their enemy?
If all these questions are against us, there are still others left behind.
Are we in a condition to go to war?
Can we be expected to begin before we are in condition?
Will the islands be lost if we do not save them?
Have we the means of saving them?
If we cannot save them, are we bound to go to war for a desperate object?
Many, if not most of these questions offer grounds of doubt whether the clause of guarantee will draw us into the war. Consequently, if this be danger apprehended, it is not yet certain enough to authorize us in sound morality to declare, at this moment, the treaties null.
5. Is danger apprehended from the 17th article of the treaty ofcommerce, 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 of 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 us. 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 refuse 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 usunder 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.
Grotius2. 16. 16.Puffendorf8. 9. 6.Wolf1146.Vattel2. 197.Hither must be referred the common question concerning personal and real treaties. If indeed it be with a free people, there can be no doubt but that the engagement is in its nature real, because the subject is a permanent thing, and even though the government of the State be changed into a kingdom, the treaty remains; because the same body remains though the head is changed; and as it was before now, the government which is exercised by a king does not cease to be the government of the people. There is an exception when the object seems peculiar to the government, as if free cities contract a league for the defence of their freedom.It is certain that every alliance made with a republic is real in its nature, and continues consequently to the terms agreed on by the treaty, although the magistrates who concluded it be dead before, so that the form of government is changed even from a democracy to a monarchy, for in this case the people do not cease to be the same, and the king, in the case supposed, being established by the consent of the people who abolished the republican government, is understood to accept the crown with all the engagements which the people confessing it had contracted as being free and governing themselves. There must nevertheless be an exception of the alliances contracted with a view to preserve the present government; as if two republics league for mutual defence against those who would undertake to invade their liberty; for if one of these two people consent afterwards voluntarily to change the form of the government, the alliance ends of itself, because the reason on which it was founded no longer subsists.The alliance which is made with a free people, or with a popular government, is a real alliance; and as when the form of government changes, the people remain the same (for it is the association which forms the people, and not the manner of administering the government). This alliance subsists, though the form of government changes,unless, as is evident, the reason of the alliance was particular to the popular state.The same question presents itself in real alliances, and in general on every alliance made with a State, and not in particular with a king for the defence of his person. We ought, without doubt, to defend our ally against all invasion, against all foreign violence, and even against rebel subjects. We ought, in like manner, to defend a republic against the enterprises of an oppressor of the public liberty. But we ought to recollect that we are the ally of the state or of the nation, and not its judge. If the nation has deposed its king in form; if the people of a republic have driven away its magistrates, and have established themselves free, or if they have acknowledged the authority of an usurper, whether expressly or tacitly, to oppose these domestic arrangements—to contest their justice or validity—would be to meddle with the government of the nation, and to do it an injury. The ally remains the ally of the state, notwithstanding the change which has taken place;but if this change renders the alliance useless, dangerous, or disagreeable to it, it is free to 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.
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 instatu 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 allianceuseless,dangerousordisagreeableto it, it is free to renounce it. It was unnecessary for him to have specified the exception ofdangerin this particular case, because the exception exists in all cases, andits extent has been considered; but when he adds that, because a contract is become merelyuselessordisagreeablewe are free to renounce it,—he is in opposition to Grotius, Puffendorf, 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 becomesmerely uselessordisagreeableto him. We may appeal to Vattel 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 theruinof 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. No governor of a nation having power to engage things capable ofdestroyingthe 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 thenjust value. If we could free ourselves from a compact because we find ourselves injured by it, there would be nothing firm in the contracts of nations. Civil laws may set limits to lesion, and determine the degree capable of producing a nullity of the contract; but sovereigns acknowledge no judge. How establish lesion among them? Who will determine the degree sufficient to invalidate a treaty? The happiness and peace of nations require manifestly that their treaties should not depend on a means of nullity so vague and so dangerous."
Let us hear him again on the general subject of the observation of treaties, Section 163: "It is demonstrated in natural law that he who promises another, confers on him a perfect right to require the thing promised, and that consequently, not to observe a perfect promise is to violate the right of another; it is as manifest injustice as to plunder any one of their right. All the tranquillity, the happiness and security of mankind, rest on justice or the obligation to respect the rights of others. The respect of others for our right of domain and property is the security of our actual possessions. The faith of promises is the security for the things which cannot be delivered or executed on the spot. No more security, no more commerce among men, if they think themselves not bound to preserve faith, to keep their word. This obligation, then, is as necessary as it is natural and indubitable among nations who live together in a state of nature, and who acknowledge no superior on earth. To maintain order and peace in their society, nations and their governors then ought to observe inviolably their promises and their treaties. This is a great truth, although too often neglected in practice, is generally acknowledged by all nations, the reproach of perfidy is a bitter affront among sovereigns. Now he who does not observe a treaty is assuredly perfidious, since he violates his faith. On the contrary, nothing is so glorious to a prince and his nation as the reputation of inviolable fidelity to his word." Again, Section 219, "Who will doubt that treaties are of the things sacred among nations? They decide matters the most important; they impose rules on the pretensions of sovereigns, they cause the rightsof nations to be acknowledged; they assume their most precious interests. Among political bodies, sovereigns, who acknowledge no superior on earth, treaties are the only means of adjusting their different pretensions; of establishing a rule, to know on what to count, on what to depend. But treaties are but vain words, if nations do not consider them as respectable engagements, as rules inviolable for sovereigns, and sacred through the whole earth." Section 220: "The faith of treaties, that firm and sincere will, that invincible constancy in fulfilling engagements, of which a declaration is made in a treaty, is then holy and sacred among nations, whose safety and repose it ensures; and if nations will not be wanting to themselves, they will load with infamy whoever violates his faith."
After evidence so copious and explicit of the respect of this author for the sanctity of treaties, we should hardly have expected that his authority would have been resorted to for a wanton invalidation of them whenever they should become merelyuseless or disagreeable. We should hardly have expected that, rejecting all the rest of his book, this scrap would have been culled and made the hook whereon to hang such a chain of immoral consequences. Had the passage accidentally met our eye, we should have imagined it had fallen from the author's pen under some momentary view, not sufficiently developed to found a conjecture what he meant, and we may certainly affirm that a fragment like this cannot weigh against the authority of all other writers; against the uniform and systematic doctrine of the very work from which it is torn; against the moral feelings and the reason of all honest men. If the terms of the fragment are not misunderstood, they are in full contradiction to all the written and unwritten evidences of morality. If they are misunderstood, they are no longer a foundation for the doctrines which have been built on them.
But even had this doctrine been as true as it is manifestly false, it would have been asked, to whom is it that the treaties with France have becomedisagreeable? How will it be proved that they areuseless?
The conclusion of the sentence suggests a reflection too strong to be suppressed, "for the party 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." The republic of the United States allied itself with France when under a despotic government. She changes her government, and declares it shall be a republic; prepares a form of republic extremely free, and in the meantime is governing herself as such. And it is proposed that America shall declare the treaties void, because it may say with truth that it would not have allied itself with that nation if it had been under the present form of its government. Who is the American who can say with truth that he would not have allied himself to France if she had been a republic? Or that a republic of any form would be asdisagreeableas her ancient despotism?
Upon the whole I conclude, that the treaties are still binding, notwithstanding the change of government in France; that no part of them but the clause of guarantee holds updanger, even at a distance, and consequently that a liberation from no other part would be prepared in any case; that if that clause may ever bringdanger, it is neither extreme nor imminent, nor even probable that the authority for renouncing a treaty, whenuseless or disagreeable, is either misunderstood or in opposition to itself, to all other writers, and to every moral feeling; that were it not so, these treaties are in fact neither useless or disagreeable; that the receiving a minister from France at this time is an act of no significance with respect to the treaties, amounting neither to an admission nor denial of them, forasmuch as he comes not under any stipulation in them; that were it an explicit admission, or were it an express declaration of their obligation now to be made, it would not take from us that right which exists at all times, of liberating ourselves when an adherence to the treaties would beruinousordestructiveto the society; and that the not renouncing the treaties now is so far from being a breach of neutrality, that the doing it would be the breach, by giving just cause of war to France.
May 3, 1793.
It has been stated in our treaties with the French, Dutch and Prussians, that when it happens that either party is at war, and the other neutral, the neutral shall give passports of a certain tenor to thevessels belonging to their subjects, in order to avoid dissension; and it has been thought that passports of such high import to the persons and property of our citizens should have the highest sanction; that of the signature of the President, and seal of the United States. The authority of Congress also, in the case of sea letters to East India vessels, was in favor of this sanction. It is now become a question whether these passports shall be given only to shipsowned and builtin the United States, or may be given also to thoseownedin the United States, thoughbuiltin foreign countries.
The persons and property of our citizens are entitled to the protection of our government in all places where they may lawfully go. No laws forbid a merchant to buy, own, and use aforeign-builtvessel. She is, then, his lawful property, and entitled to the protection of his nation whenever he is lawfully using her.
The laws indeed, for the encouragement of ship building, have given to home-built vessels the exclusive privilege of being registered and paying lighter duties. To this privilege, therefore, the foreign-built vessel, though owned at home, does not pretend. But the laws have not said that they withdraw their protection from the foreign-built vessel. To this protection, then, she retains her title, notwithstanding the preference given to the home-built vessel as to duties. It would be hard indeed because the law has given one valuable right to home-built vessels, to infer that it had taken away all rights from those foreign-built.
In conformity with the idea that all the vessels of a State are entitled to its protection, the treaties before mentioned have settled that passports shall be given, not merely to the vesselsbuiltin the United States, but to the vessels belonging to them; and when one of these nations shall take a vessel, if she has not such a passport, they are to conclude she does notbelongto the United States, and is therefore lawful prize; so that to refuse these passports to foreign-built vesselsbelongingto our merchants, is to give them up to capture with their cargoes. The most important interests of the United States hang upon this question. The produce of the earth is their principle source of wealth. Ourhome-builtvessels would suffice for the transportation of a very small part of this produce to market, and even a part of these vessels will be withdrawn by high premiums to other lines of business. All the rest of our produce, then, must remain on our hands, or have its price reduced by a war insurance. Many descriptions of our produce will not bear this reduction, and would, therefore, remain on hand.
We shall lose also a great proportion of the profits of navigation. The great harvest for these is when other nations are at war, and our flag neutral. But if we can augment our stock of shipping only by the slow process of building, the harvest will be over while we are only preparing instruments to reap it. The moment of breeding seamen will be lost for want of bottoms to embark them in.
France and Holland permit our vessels to be neutralized with them; not even to suffer theirs to be purchased here might give them just cause to revoke the privilege of naturalization given to ours, and would inflict on the ship-building States and artizans a severe injury.
Objection.To protect foreign-built vessels will lessen the demand for ship building here.
Answer.Not at all; because as long as we can build cheaper than other nations, we shall be employed in preference to others; besides, shall we permit the greatest part of the produce of our fields to rot on our hands, or lose half its value by subjecting it to high insurance, merely that our ship builders may have brisker employ? Shall the whole mass of our farmers be sacrificed to the class of ship wrights?
Objection.There will be collusive transfers of foreign ships to our merchants, merely to obtain for them the cover of our passports.
Answer.The same objection lies to giving passports to home-built vessels. They may be owned, and are owned by foreigners, and may be collusively re-transferred to our merchants to obtain our passports. To lessen the danger of collusion, however, I should be for delivering passports in our own ports only, if they were to be sent blank to foreign ports to be delivered there, the power of checking collusion would be small, and they might be employed to cover purposes of no benefit to us (which we ought not to countenance), and to throw our vessels out of business; but if issued only to vessels in our own ports, we can generally be certain that the vessel is our property; and always that thecargois of our produce. State the case that it shall be found that all our shipping, home-built and foreign-built, is inadequate to the transportation of our produce to market; so that after all these are loaded, there shall yet remain produce on hand. This must be put into vessels owned by foreigners. Should these obtain collusively the protection of our passport, it will cover theirvesselindeed, but it will cover also ourcargo. I repeat it then, that if the issuing passports be confined to our ports, it will be our ownvesselsfor the most part, and always ourcargoeswhich will be covered by them.
I am, therefore, of opinion, that passports ought to be issued to all vesselsbelongingto citizens of the United States, but only on their clearing out from our own ports, and for that voyage only.
May 16, 1793.
The facts suggested, or to be taken for granted, because the contrary is not known, in the case now to be considered, are,that a vessel was purchased at Charleston, and fitted out as a privateer by French citizens, manned with foreigners chiefly, but partly with citizens of the United States. The command given to a French citizen by a regular commission from his government; that she has made prize of an English vessel in the open sea, and sent her into Philadelphia. The British minister demands restitution, and the question is, whether the Executive of the United States shall undertake to make it?
This transaction may be considered, 1st, as an offence against the United States; 2d, as an injury to Great Britain.
In the first view it is not now to be taken up. The opinion being, that it has been an act of disrespect to the jurisdiction of the United States, of which proper notice is to be taken at a proper time.
Under the second point of view, it appears to me wrong on the part of the United States (where not constrained by treaties) to permit one party in the present war to do what cannot be permitted to the other. We cannot permit the enemies of France to fit out privateers in our ports, by the 22d article of our treaty. We ought not, therefore, to permit France to do it; the treaty leaving us free to refuse, and the refusal being necessary to preserve a fair neutrality. Yet considering that the present is the first case which has arisen; that it has been in the first moment of the war, in one of the most distant ports of the United States, and before measures could be taken by the government to meet all the cases which may flow from the infant state of our government, and novelty of our position, it ought to be placed by Great Britain among the accidents of loss to which a nation is exposed in a state of war, and by no means as a premeditated wrong on the part of the government. In the last light it cannot be taken, because the act from which it results placed the United States with the offended, and not the offending party. Her minister has seen himself that there could have been on our part neither permission or connivance. A very moderate apology then from the United States ought to satisfy Great Britain.
The one we have made already is ample, to wit, a pointeddisapprobation of the transaction, a promise to prosecute and punish according to law such of our citizens as have been concerned in it, and to take effectual measures against a repetition. To demand more would be a wrong in Great Britain; for to demand satisfactionbeyondwhat is adequate, is wrong. But it is proposed further to take the prize from the captors and restore her to the English. This is a very serious proposition.
The dilemma proposed in our conferences, appears to me unanswerable. Either the commission to the commander of the privateer was good, or not good. If not good, then the tribunals of the country will take cognizance of the transaction, receive the demand of the former owner, and make restitution of the capture; and there being, on this supposition, regular remedy at law, it would be irregular for the government to interpose. If the commission be good, then the capture having been made on the high seas, under a valid commission from a power at war with Great Britain, the British owner has lost all his right, and the prize would be deemed good, even in his own courts, were the question to be brought before his own courts. He has now no more claim on the vessel than any stranger would have who never owned her, his whole right being transferred by the laws of war to the captor.
The legal right then being in the captors, on what ground can we take it from him? Not on that ofright, for the right has been transferred to him. It can only be by an act offorce, that is to say, of reprisal for the offence committed against us in the port of Charleston. But the making reprisal on a nation is a very serious thing. Remonstrance and refusal of satisfaction ought to precede; and when reprisal follows, it is considered as an act of war, and never yet failed to produce it in the case of a nation able to make war; besides, if the case were important enough to require reprisal, and ripe for that step, Congress must be called on to take it; the right of reprisal being expressly lodged with them by the Constitution, and not with the Executive.
I therefore think that the satisfaction already made to thegovernmentof Great Britain is quite equal to what ought to be desired in the present case; that the property of the Britishowneris transferred by the laws of war to thecaptor; that for us to take it from the captor would be an act of force or reprisal, which the circumstances of the case do not justify, and to which the powers of the Executive are not competent by the Constitution.
June 5, 1793.
Instructions having been given to borrow two millions of florins in Holland, and the Secretary of the Treasury proposing to open a further loan of three millions of florins, which he says "a comprehensive view of the affairs of the United States, in various relations, appears to him to recommend," the President is pleased to ask whether I see any objections to the proposition?
The power to borrow money is confided to the President by the two acts of the 4th and 12th of August, 1790, and the monies, when borrowed, are appropriated to two purposes only: to wit, the twelve millions to be borrowed under the former, are appropriated to discharge the arrears of interest and instalments of the foreign debt; and the two millions, under the latter, to the purchase of the public debt, under direction of the trustees of the sinking fund.
These appropriations render very simple the duties of the President in the discharge of this trust. He has only to look to thepaymentof the foreign debt, and the purchase of the general one. And in order to judge for himself of the necessity of the loan proposed for effecting these two purposes, he will need from the treasury the following statements:—
A. A statement of the nett amount of the loans already made under these acts, adding to that the two millions of florins now in course of being borrowed. This will form thedebitof the trust.
Thecreditside of the account will consist of the following statements, to wit:—
B. Amount of the principal and interest of foreign debt, paid and payable, to the close of 1792.
C. Ditto, payable to the close of 1793.
D. Ditto, payable to the close of 1794 (for I think our preparations should be a year beforehand).
E. Amount of monies necessary for the sinking fund to the end of 1794.
If the amount of the four last articles exceeds the first, it will prove a further loan necessary, and to what extent.
The treasury alone can furnish these statements with perfect accuracy. But to show that there is probable cause to go into the examination, I will hazard a statement from materials which, though perhaps not perfectly exact, are not much otherwise.
Report of January 3, 1793. New Edition.
So that instead of an additional loan being necessary, the monies already borrowed will suffice for all the purposes to which they can be legally applied to the end of 1794, and leave a surplus of $387 474 64 to cover charges and errors. And as, on account of the unsettled state of the French government, it is not proposed to pay in advance, or but little so, any further sum would be lying at a dead interest and risk. Perhaps it might be said that new monies must be borrowed for the current domestic service of the year. To this I should answer, that no law has authorized the opening of a loan for this purpose.
If it should be said that the monies heretofore borrowed are so far put out of our power that we cannot command them before an instalment will be due, I should answer, that certainly I would rather borrow than fail in a payment; but if borrowing will secure a payment in time, the two millions of florins now borrowing are sufficient to secure it. If we cannot get this sum in time, then we cannot get an additional sum in time.
The above account might be stated in another way, which might, perhaps, be more satisfactory, to wit:
By this statement, it would seem as if all the payments to France, hitherto made and ordered, would not acquit the year 1792. So that we have never yet been clear of arrears to her.
The amount of the French debt is stated according to the convention, and the interest is calculated accordingly. Interest on the ten million loan is known to have been paid for the years 1784, 1785, and is therefore deducted. It is not known whether it was paid on the same loan for the years 1786-7-8-9, previous to the payment of December 3, 1790, or whether it was included in that payment; therefore this is not deducted. But if, in fact, it was paid before that day, it will then have lessened the debt so much, to wit, 400,000 livres a year, for four years, making 1,600,000 florins, equal to $290,400, which sum would put us in advance near half of the instalments of 1793. Note,—livres are estimated at18⁄100cents, proposed by the Secretary of the Treasury to the French ministry as the par of the metals, to be the rate of conversion.
This uncertainty with respect to the true state of our account with France, and the difference of the result from what has been understood, shows that the gentlemen who are to give opinions on this subject, must do it in the dark, and suggests to the President the propriety of having an exact statement of the account with France communicated to them, as the ground on which they are to give opinions. It will probably be material in that about to be given on the late application of Mr. Genet, on which the Secretary of the Treasury is preparing a report.