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be thrown under the dilemma, of either sacrificing its judgment to that of the executive ; or, by opposing the executive judgment, of producing 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 guaranty 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 honorable 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 honorable, 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 other 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. “ Did the executive stand in need of the logic of a foreign agent to en" lighten it as to the duties or the interests of the nation ; or was it bound “ to ask his consent to a step, which appeared to itself consistent with " the former, and conducive to the latter? The sense of treaties was " to be learned from the treaties themselves.” Had he consulted his Vattel, instead of his animosity to France, he would have discovered, that however humiliating it might be to wait for a foreign logic, to assist the interpretation of ab 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 learned 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 Vattel however be heard on the subject.
" The third general maxim, or principle, on the subject of interpreta“tion [of treaties] is : that neither the one nor the other of the interested 6 or contracting powers has a right to interpret the act or treaty at its
pleasure. For if you are at liberty to give my promise what sense you please, you will have the power of obliging me to do whatever you have a mind, contrary to my intention, and beyond my real engagement; and reciprocally, if I am allowed to explain my promises
I please, I may render them vain and illusive, by giving them a sense quite different from that in which they were presented to you, and in
“ which you must have taken them in accepting them.” Vattel, 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 guaranty, could have been intended by the proclamation. He had but just gone through the undertaking, to prove that the article of guaranty like the rest of the treaty is defensive, not offensive.
He had examined his books and retailed his quotations, to show that the criterion between the two kinds of war is the circumstance of priority in the attack. He could not therefore but know, that according to his own prin. ciples, 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 first attack was made by France or her enemies. And to decide 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 jus. tice, and requiring circumstances of a very peculiar nature, to warrant it towards any nation. Towards a nation which could verify her claim
more than bare justice by our own reiterated and formal acknowledg. ments, 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 guaranty, 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, which 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 have 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 contena plates. 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, would not be unnecessarily provoked by those who understand the public interest and make it their study as it is their duty to advance it.
I am aware that the common-place remark will be interposed, that, " commercial privileges are not worth having, when not secured by mus tual interest; and never worth purchasing because they will grow of " themselves out of a mutual interest.” Prudent men, who do not suffer their reason to be mislead by their prejudices, will view the subject in a juster light. They will reflect, that if commercial privileges are not worth purchasing, they are worth having without purchase ; that in the commerce of a great nation, there are valuable privileges which may be granted or not granted, or granted either to this or that country, without any sensible influence on the interest of the nation itself; that the friendly or unfriendly disposition of a country, is always an article of moment
in the calculations of a comprehensive interest ; that some sacrifices of interest will be made to other motives, by nations, as well as by individuals, though not with the same frequency, or in the same proportions ; that more of a disinterested conduct, or of a conduct founded on liberal views of interest, prevails in some nations than in others; that as far as can be seen of the influence of the revolution on the genius and the policy of France, particularly with regard to the United States, every thing is to be hoped by the latter on this subject, which one country can reasonably hope from another. In this point of view, a greater error could not have been committed than in a step that might have turned the present disposition of France to open her commerce to us as far as a liberal calculation of her interest would permit, and her friendship towards us, and confidence in our friendship towards her could prompt, into a disposition to shut it as closely against us as the united motives of interest, of distrust, and of ill-will
, could urge her.
. On the supposition that France might intend to claim the guaranty, a hasty and harsh refusal before we were asked, on a ground that accused her of being the aggressor 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 pur. poses ascribed to it, that is to say, as a declaration of neutrality, another would have followed, on that event. If it was the right and duty of the government, that is, the president, to manifest to Great Britain and Hol. land, 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 execute the clause of guaranty, 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 right, 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 offensive 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 inference is so obvious and so applicable to all other cases, whatever circumstances may distinguish them, that another proclamation would be unnecessary. Here is a new aspect of the whole subject, admonishing us in the most striking manner at once of 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.
danger of the prerogative contended for, and the absurdity of the distinctions and arguments employed in its favor. It would be as impossible in practice, as it is in theory, to separate the power of judging and concluding that the obligations of a treaty do not impose war, from that of judging and concluding that the obligations do impose war. In certain cases, silence would proclaim the latter conclusion, as intelligibly as words could do the former. The writer indeed has himself abandoned the distinction in his seventh paper, by declaring expressly that the object of the proclamation would have been defeated " by leaving it un. * certain, whether the executive did or did not believe a state of neutrality to be consistent with our treaties,"
ARTICLES OF CONFEDERATION.
TO ALL TO WHOM THESE PRESENTS SHALL COME,
We, the undersigned delegates of the states affixed to our names, send
greeting. Whereas the delegates of the United States of America in congress assembled, did, on the fifteenth day of November, in the year of our Lord one thousand seven hundred and seventy-seven, and in the second year of the independence of America, agree to certain articles of confederation and perpetual union between the states of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, in the words follow
Articles of confederation and perpetual union between the states of New
Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.
Article I. The style of this confederacy shall be “ The United 66 States of America."
Art. II. Each state retains its sovereignty, freedom, and independ. ence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States in congress assembled.
Art. III. The said states hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare ; binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.
ART. IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the different states, in this union, the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immu. nities of free citizens in the several states ; and the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any state, to any other state of which the owner is an inhabitant; provided also, that no impo