whether a minister from the Republic of France should be received; another, whether, if received, it should be done absolutely or with qualifications; yet another, whether the United States were obliged to consider the treaties previously made with France as still in force. It was unanimously agreed that a minister from the French Republic should be received; but, on the next question, Hamilton, supported by Knox, thought that the reception should be qualified. The President, Jefferson, and Randolph inclined to the opposite opinion. In a subsequent written opinion Hamilton argued that the reception of the French minister should be qualified by a previous declaration to the effect that the United States reserved the question whether the treaties by which the relations between the two countries were formed were not to be deemed temporarily and provisionally suspended. He maintained that the United States had an option so to consider them, and would eventually have the right to renounce them, if such changes should take place as could bona fide be pronounced to make a continuance of the connections which resulted from them disadvantageous and dangerous. He also thought the war plainly offensive on the part of France, while the alliance was defensive. Jefferson, on the other hand, maintained that the treaties were not "between the U. S. & Louis Capet, but between the two nations of America & France," and that "the nations remaining in existence, tho' both of them have since changed their forms of government, the treaties are not annulled by these changes." When the French minister, Genet, arrived at Philadelphia, an unqualified reception was promptly accorded him; and the treaties were held by the United States as continuing in force till Congress in 1798 declared them to be abrogated for causes other than the change in the constitution in France. See Hamilton's Works, by Lodge, IV. 74-79, 101; Writings of Jefferson, by Ford, VI. 219, 220; Moore, Int. Arbitrations, V. 4405 et seq.; Jefferson to G. Morris, March 12, 1793, Jefferson's Works (by Washington), III. 521, 522. See, also, Lawrence's Wheaton (1863), 490-492; Rives's Life and Times of Madison, III. 327, 329; Hildreth's History of the United States, IV. 413, 414. Jefferson, in writing on April 28, 1793, to Madison, said, "Would you suppose it possible that it should have been seriously proposed to declare our treaties with France void on the authority of an illunderstood scrap in Vattel and that it should be necessary to discuss it?" Madison, on May 8, replied as follows: "Peace is, no doubt, to be preserved at any price that honor and good faith will permit. But the least departure from these will not only be most likely to end in the loss of peace, but is pregnant with every other evil that could happen to us. In explaining our engagements under the treaty with France, it would be honorable, as well as just, to adhere to the sense that would at the time have been put upon them. If a change of government is an absolution from public engagements, why not from those of a domestic as well as foreign nature; and what then becomes of public debts, &c.? In fact, the doctrine would perpetuate every existing despotism, by involving, in a reform of the government, a destruction of the social pact, an annihilation of property, and a complete establishment of the state of nature. What most surprises me is, that such a proposition should have been discussed." Writings of Jefferson, by Ford, VI. 232; 3 Rives's Life and Times of Madison, III. 332. To same effect, see Jefferson's opinion of April 28, 1793, Jefferson's Works, VII. 613. A successful revolution does not relieve the country revolutionized from liability on its prior engagements to foreign states. Mr. Fish, Sec. of State, to Mr. Bassett, min. to Hayti, Feb. 21, 1877, MS. "An alliance between two nations can not absolve either of them from the obligations of previous treaties" with third powers. Mr. Adams, Sec. of State, to Don Luis de Onis, Spanish min., March 12, 1818, Am. State Papers, For. Rel. IV. 468, 476. By Article XVII. of the treaty between the United States and Tunis of 1797 each of the contracting parties is "at liberty to establish a consul in the dependencies of the other," and such consul" may import for his own use all his provisions and furniture without paying any duty." In 1895 the Tunisan minister of foreign affairs. who was also the French minister resident, sought to withdraw this and other consular privileges from the vice-consul of the United States by making a distinction between unsalaried consular officers, of whom the United States vice-consul was one, and salaried consuls, or "consuls de carrière." The United States maintained that the treaty did not admit of such a distinction, the question of salary being simply one of arrangement between the consul and his own government. In the course of the discussions a reference was made to Article III. of the convention between Great Britain and Tunis of July 19, 1875, which provides that the privilege of free importation "shall only be accorded to consular officers who are not engaged in trade," and the hope was expressed that the United States would not insist on privileges granted by an old treaty in excess of that conceded in the British treaty. The United States replied (1) that "neither expansion nor restriction of existing treaty stipulations is H. Doc. 551-vol 5--22 inferable from any later treaty of either contracting party with a third power," and (2) that the rule in the British treaty was different from that proposed by the French resident. Mr. Olney, Sec. of State, to Mr. Eustis, ambassador to France, June 17, 1895, For. Rel. 1895, I. 419, 420. "At the close of the wars of Napoleon, the treaty of 1795 with Spain alone, of all of the commercial treaties, survived. President Madison contemplated using the opportunity to mould all the treaties of this nature into a general system. Mr. Monroe, in an early stage of negotiations with Holland, for this purpose, informed the Dutch minister at Washington that the treaties between the United States and some of the powers of Europe having been annulled by causes proceeding from the state of Europe for some time past, and other reaties having expired, the United States have now to form their system of commercial intercourse with every power, as it were, at the same time.' But the only general commercial treaties which Monroe succeeded in concluding, either as Secretary of State under President Madison, or as President with John Quincy Adams as Secretary of State, were the treaty of 1815 with Great Britain, the limited arrangements made with France in 1822, and the treaty with Colombia in 1824." Davis, Notes, Treaty Vol. (1776-1887), 1224. "In 1814 and 1815 a set of treaties were made by a general congress of the states of Europe, which affected to regulate the external, and some of the internal, concerns of the European nations, for a time altogether unlimited. These treaties, having been concluded at the termination of a long war, which had ended in the signal discomfiture of one side, were imposed by some of the contracting parties, and reluctantly submitted to by others. Their terms were regulated by the interests and relative strength at the time of the victors and vanquished, and were observed as long as those interests and that relative strength remained the same. But as fast as any alteration took place in these elements, the powers, one after another, without asking leave, threw off, and were allowed with impunity to throw off, such of the obligations of the treaties as were distasteful to them, and not sufficiently important to the others to be worth a fight. The general opinion sustained some of those violations as being perfectly right; and even those which were disapproved were not regarded as justifying a resort to war. Europe did not interpose when Russia annihilated Poland; when Prussia, Austria, and Russia extinguished the Republic of Cracow; or when a second Bonaparte mounted the throne of France. "Did any impartial person blame Prussia or Austria because, in 1813, they violated the treaties which bound them to the first Napoleon, and not only did not fight in his ranks, as their engagements required, but brought their whole military force into the field against him, and pursued him to his destruction? Ought they, instead of cancelling the treaties, to have opened a negotiation with Napoleon, and entreated him to grant them a voluntary release from their obligations, and if he did not comply with their request to be allowed to desert him, ought they to have faithfully fought in his defense? Yet it was as true of those treaties as it is of the treaty of 1856, that, disadvantageous and dishonorable as they might be, they had been submitted to as the purchase-money of peace, when the prolongation of war would have been most disastrous; for, had the terms been refused, Napoleon could with ease have conquered the whole of Prussia, and, at least, the German dominions of Austria, which is considerably more, I presume, than England and France could have done to Russia, after the fall of Sebastopol. "What means, then, are there of reconciling, in the greatest practicable degree, the inviolability of treaties and the sanctity of national faith, with the undoubted fact that treaties are not always fit to be kept, while yet those who have imposed them upon others weaker than themselves are not likely, if they retain confidence in their own strength, to grant a release from them? To effect this reconcilement, so far as it is capable of being effected, nations should be willing to abide by two rules. They should abstain from imposing conditions which, on any just and reasonable view of human affairs, can not be expected to be kept. And they should conclude their treaties as commercial treaties are usually concluded, only for a term of years. "If these principles are sound it remains to be considered how they are to be applied to past treaties, which, though containing stipulations which, to be legitimate, must be temporary, have been concluded without such limitation, and are afterwards violated, or, as by Russia at present, repudiated, on the assumption of a right superior to the faith of engagements. "It is the misfortune of such stipulations, even if as temporary arrangements they might have been justifiable, that if concluded for permanency they are seldom to be got rid of without some lawless act on the part of the nation bound by them. If a lawless act, then, has been committed in the present instance, it does not entitle those who imposed the conditions to consider the lawlessness only, and to dismiss the more important consideration, whether, even if it was wrong to throw off the obligation, it would not be still more wrong to persist in enforcing it. If, though not fit to be perpetual, it has been imposed in perpetuity, the question when it becomes right to throw it off is but a question of time. No time having been fixed, Russia fixed her own time, and naturally chose the most convenient. She had no reason to believe that the release she sought would be voluntarily granted on any conditions which she would accept; and she chose an opportunity which, if not seized, might have been long before it occurred again, when the other contracting parties were in a more than usually disadvantageous position for going to war.” J. S. Mill on "Treaty Obligations," 8 Fortnightly Review, N. S. (1870), 715. “Such a guarantee [as an organic connection between the German Empire and Austria-Hungary, which should not be published like ordinary treaties, but should be incorporated in the legislation of both empires and require for its dissolution a new legislative act on the part of one of them] has a tranquillising effect on the mind; but whether it would stand the actual strain of events may reasonably be doubted, when it is remembered that the constitution of the Holy Roman Empire, which in theory had much more effective sanctions, yet failed to assure the cohesion of the German nation, and that we should never be able to embody our relation with Austria in any more binding treaty-form than the earlier confederation treaties, which in theory excluded the possibility of the battle of Königgrätz. All contracts between great states cease to be unconditionally binding as soon as they are tested by the struggle for existence.' No great nation will ever be induced to sacrifice its existence on the altar of fidelity to contract when it is compelled to choose between the two. The maxim ultra posse nemo obligatur' holds good in spite of all treaty formulas whatsoever, nor can any treaty guarantee the degree of zeal and the amount of force that will be devoted to the discharge of obligations when the private interest of those who lie under them no longer reinforces the text and its earliest interpretation. If, then, changes were to occur in the political situation of Europe of such a kind as to make an anti-German policy appear salus publica for Austria-Hungary, public faith could no more be expected to induce her to make an act of self-sacrifice than we saw gratitude do during the Crimean war, though the obligation was perhaps stronger than any [that] can be established by the wax and parchment of a treaty." Bismarck, his Reflections and Reminiscences (London, 1898), II. 270. common |