The second and principal objection to the proclamation, namely, that it is inconsistent with the treaties between the United States and France, will now be examined.
It has been already shown that it does not militate against the performance of any of the stipulations in those treaties, which would not make us an associate or party in the war, and especially that it does not interfere with the privileges secured to France by the seventeenth and twenty-second articles of the treaty of commerce, which, except the clause of guaranty, constitute the most material discriminations to be found in our treaties in favor of that country.
Official documents have likewise appeared in the public papers, which serve as a comment upon the sense of the proclamation in this particular, proving that it was not deemed by the executive incompatible with the performance of the stipulations in those articles, and that in practice they are intended to be observed.
It has, however, been admitted that the declaration of neutrality excludes the idea of an execution of the clause of guaranty.
It becomes necessary, therefore, to examine whether the United States would have a valid justification for not complying with it, in case of their being called upon for that purpose by France.
Without knowing how far the reasons which have occurred to me may have influenced the President, there appear to me to exist very good and substantial grounds for a refusal.
The alliance between the United States and France is of the defensive kind. In the caption it is denominated a "treaty of alliance eventual and defensive." In the body (article the second) it is called a defensive alliance. The words of that article are as follows: "The essential and direct and of the present defensive alliance is to maintain effectually the liberty, sovereignty, and independence, absolute and unlimited, of the United States, as well in matters of government as of commerce."
The leading character, then, of our alliance with France being defensive, it will follow that the meaning, obligation, and force of every stipulation in the treaty must be tested by the principles of such an alliance, unless in any instance terms have been used which clearly and unequivocally denoted a different intent.
The principal question consequently is: What is the nature and effect of a defensive alliance? When does the casus fæderis take place in relation to it?
Reason, the concurring opinions of writers, and the practice of nations will all answer: "When either of the allies is attacked," when "war is made upon him, not when he makes war upon another": in other words, the stipulated assistance is to be given "when our ally is engaged in a defensive, not when he is engaged in an offensive, war." This obligation to assist only in a defensive war constitutes the essential difference between an alliance which is merely defensive and one which is both offensive and defensive. In the latter case there is an obligation to co-operate as well when the war, on the part of our ally, is of the latter, as when it is of the former, description. To affirm, therefore, that the United States are bound to assist France in the war in which she is at present engaged, will be to convert our treaty with her into an alliance offensive and defensive, contrary to the express and reiterated declarations of the instrument itself.
This assertion implies that the war in question is an offensive war on the part of France.
And so it undoubtedly is, with regard to all the Powers with whom she was at war, at the time of issuing the proclamation.
No position is better established than that the nation which first declares or actually begins a war, whatever may have been the causes leading to it, is that which makes an offensive war. Nor is there any doubt that France first declared and began the war against Austria, Prussia, Savoy, Holland, England, and Spain.
Upon this point there is apt to be some incorrectness of ideas. Those who have not examined subjects of such a nature are led to imagine that the party which commits the first injury, or gives the first provocation, is on the offensive side, though hostilities are actually begun by the other party.
But the cause or the occasion of the war, and the war itself, are things entirely distinct. It is the commencement of the war itself which decides the question, whether it be offensive or defensive. All writers on the laws of nations agree in this doctrine; but it is most accurately laid down in the following extracts from Burlemaqui.4
4. Vol. II., book IV., chap. iii., §§ 4, 5.
"Neither are we to believe [says he] that he who first injures another begins by that an offensive war, and that the other who demands the satisfaction for the injury received is always on the defensive. There are a great many unjust acts which may kindle a war, and which, however, are not the war itself; as the ill treatment of a prince's ambassadors, the plundering of his subjects, etc."
"If, therefore, we take up arms to revenge such an unjust act, we commence an offensive but a just war; and the prince who has done the injury, and will not give satisfaction, makes a defensive but an unjust war."
"We must therefore affirm, in general, that the first who takes up arms, whether justly or unjustly, commences an offensive war; and he who opposes him, whether with or without reason, begins a defensive war."
France, then, being on the offensive in the present war, and our alliance with her being defensive only, it follows that the casus fæderis, or condition of our guaranty, cannot take place; and that the United States are free to refuse a performance of that guaranty if demanded.
Those who are disposed to justify indiscriminately every thing in the conduct of France, may reply that though the war, in point of form, may be offensive on her part, yet in point of principle it is defensive; was in each instance a mere anticipation of attacks meditated against her, and was justified by previous aggressions of the opposite parties.
It is believed that it would be a sufficient answer to this observation to say, that in determining the legal and positive obligations of the United States the only point of inquiry is, whether the war was in fact begun by France, or by her enemies; that all beyond this is too vague, too liable to dispute, too much matter of opinion to be a proper criterion of national conduct; that when a war breaks out between two nations, all others, in regard to the positive rights of the parties, and their positive duties towards them, are bound to consider it as equally just on both sides; that consequently in a defensive alliance, when war is made upon one of the allies, it is the duty of the other to fulfil the conditions stipulated on its part, without inquiry whether the war is rightfully begun or not; as on the other hand, when war is commenced by one of the allies, the other is exempted from the obligation to assist, however just the commencement of it may have been.
This doctrine is founded upon the utility of clear and certain rules for determining the reciprocal duties of nations, in order that as little as possible may be left to opinion, and to the subterfuges of an over-refining or unfaithful casuistry.
Some writers indeed of high authority affirm, that it is a tacit condition of every alliance, that one ally is not bound to assist the other in a war manifestly unjust. But this is questioned by other respectable authorities on the ground which has been stated. And though the manifest injustice of the war has been affirmed by some to be a good cause for not executing the formal obligations of a treaty, I have nowhere seen it maintained that the abstract justice of a war will of itself oblige a nation to do what its formal obligations do not enjoin: if this however were not the true doctrine, an impartial examination would prove that with respect to some of the Powers, France is not blameless in the circumstances which preceded and led to the war; that if she received, she also gave, causes of offence; and that the justice of the war, on her side, is in those cases not a little problematical.
There are prudential reasons which dissuade from going largely into this examination, unless it shall be rendered necessary by the future turn of the discussion.
It will be sufficient here to notice cursorily the following facts:
France committed an aggression upon Holland, in declaring the navigation of the Scheldt free, and acting upon that declaration; contrary to treaties in which she had explicitly acknowledged, and even guaranteed, the exclusive right of Holland to the use of that river; and contrary also to the doctrines of the best writers, and the established usages of nations in such cases.
She gave a general and very serious cause of alarm and umbrage by the decree of the 19th of November, 1792, whereby the convention, in the name of the French nation, declare, that they will grant fraternity and assistance to every people who wish to recover their liberty; and charge the executive power to send the necessary orders to the generals to give assistance to such people, and to defend those citizens who have been, or who may be, vexed for the cause of liberty; which decree was ordered to be printed in all languages.
This very extraordinary decree amounted exactly to what France herself had most complained of—an interference by one nation in the internal government of another.
When a nation has actually come to a resolution to throw off a yoke, under which it may have groaned, and to assert its liberties, it is justifiable and meritorious in another, to afford assistance to the one which has been oppressed, and is in the act of liberating itself; but it is not warrantable for any nation beforehand, to hold out a general invitation to insurrection and revolution, by promising to assist every people who may wish to recover their liberty, and to defend those citizens of every country who have been, or who may be, vexed for the cause of liberty; still less to commit to the generals of its armies, the discretionary power of judging when the citizens of a foreign country have been vexed for the cause for liberty by their own government.
For Vatel justly observes, as a consequence of the liberty and independence of nations, "that it does not belong to any foreign Power to take cognizance of the administration of a sovereign of another country, to set himself up as a judge of his conduct, or to oblige him to alter it."
It had a natural tendency to disturb the tranquillity of nations, and to excite everywhere fermentation and revolt; it therefore justified neutral Powers, who were in a situation to be affected by it, in taking measures to repress the spirit by which it had been dictated.
But the principle of that decree received a more particular application to Great Britain, by some subsequent circumstances.
Among the proofs of this are two answers, which were given by the President of the National Convention, at a public sitting on the 28th of November, to two different addresses: one presented by a deputation from "The Society for Constitutional Information in London," the other by a deputation of English and Irish citizens at Paris.
The following are extracts from these answers:
"The shades of Penn, of Hampden, and of Sidney hover over your heads; and the moment, without doubt, approaches, in which the French will bring congratulations to the National Convention of Great Britain."
"Nature and principles draw towards us England, Scotland, and Ireland. Let the cries of friendship resound through the TWO REPUBLICS."—"Principles are waging war against tyranny, which will fall under the blows of philosophy. ROYALTY in Europe is either destroyed or on the point of perishing, on the ruins of feudality; and the declaration of rights placed by the side of thrones, is a devouring fire which will consume them."—"Worthy Republicans, etc."
Declarations of this sort cannot but be viewed as a direct application of the principle of the decree to Great Britain, and as an open patronage of a revolution in that country; a conduct which, proceeding from the head of the body that governed France, in the presence and on behalf of that body, was unquestionably an offence and injury to the nation to which it related.
The decree of the 15th of November is a further cause of offence to all the governments of Europe. By that decree, "the French nation declares, that it will treat as enemies the people who, refusing or renouncing liberty and equality, are desirous of preserving their prince and privileged castes, or of entering into an accommodation with them, etc." This decree was little short of a declaration of war against all nations having princes and privileged classes.
The formal and definitive annexation to France of the territories over which her arms had temporarily prevailed, is another violation of just and moderate principles, into which the convention was betrayed by an intemperate zeal, if not by a culpable ambition; and of a nature to justify the jealousy and ill-will of every neighboring state.
The laws of nations give to a Power at war nothing more than a usufructuary or possessory right to the territories which it acquires; suspending the absolute property and dominion till a treaty of peace, or something equivalent, shall have ceded or relinquished the conquered territory to the conqueror. This rule is one of primary importance to the tranquillity and security of nations—facilitating an adjustment of their quarrels and the preservation of ancient limits.
But France, by incorporating with herself in several instances the territories she had acquired, violated that rule, and multiplied infinitely the obstacles to peace and accommodation. The doctrine that a nation cannot consent to its own dismemberment but in a case of extreme necessity, immediately attached itself to all the conquered territories; while the progressive augmentation of the dominions of the most powerful empire in Europe, on a principle not of temporary possession but of permanent acquisition, threatened the independence of all other countries, and gave to neighboring neutral Powers the justest cause of discontent and apprehension. It is a principle well agreed, and founded on substantial reasons, that whenever a particular state adopts maxims of conduct contrary to those generally established among nations, calculated to interrupt their tranquillity and to expose their safety, they may justifiably make common cause to resist and control the state which manifests a disposition so suspicious and exceptionable.
Whatever partiality may be entertained for the general object of the French Revolution, it is impossible for any well-informed or sober-minded man not to condemn the proceedings which have been stated, as repugnant to the rights of nations, to the true principles of liberty, to the freedom of opinion of mankind; or not to acknowledge as a consequence of this, that the justice of the war on the part of France, with regard to some of the Powers with which she is engaged, is from those causes questionable enough to free the United States from all embarrassment on that score, if indeed it be at all incumbent upon them to go into the inquiry.
The policy of a defensive alliance is so essentially distinct from that of an offensive one, that it is every way important not to confound their effects. The first kind has in view the prudent object of mutual defence, when either of the allies is involuntarily forced into a war by the attack of some third Power. The latter subjects the peace of each ally to the will of the other, and obliges each to partake in the other's wars of policy and interest, as well as in those of safety and defence. To preserve their boundaries distinct, it is necessary that each kind should be governed by plain and obvious rules.
This would not be the case if, instead of taking as a guide the simple fact of who began the war, it was necessary to travel into metaphysical niceties about the justice or injustice of the causes which led to it.
Inasmuch also as the not furnishing a stipulated succor, when it is due, is itself a cause of war, it is very requisite that there should be some palpable criterion for ascertaining when it is due. This criterion, as before observed, in a defensive alliance is the commencement, or not, of the war by our ally as a mere matter of fact.
Other topics serving to illustrate the position that the United States are not bound to execute the clause of guaranty, are reserved for another paper.
