TO GEORGE WYTHE.

J. MSS.

PHILADELPHIA, Apr. 27. 1793.

DEAR SIR,-I received not till yesterday your favor of the 12th Mr. Dorepard was paid the 64. Dollars agreed for, on the delivery of his work. As draughts on Richmond cannot be disposed of here, take any opportunity at your convenience of remitting the sum here. The custom house officers can generally give post-bills of the bank of the U. S. here. But these must not be confounded with branch-bank bills which the bank here will not receive. We understand that a French frigate has taken several English vessels off the capes of Delaware, within two or three days after they had left Philadelphia. We shall be a little embarrassed occasionally till we feel ourselves firmly seated in the saddle of neutrality. I am with great & sincere esteem & respect D: Sir Your affectionate friend & Servt.

TO THE PRESIDENT OF THE UNITED STATES.

W. MSS.

PHILADELPHIA Apr. 28. 1793.

SIR,-According to the intimation the other day, and indeed according to my own wish in a question, if not difficult, yet very important, I have the honor to inclose you a written opinion on the question Whether the U S. ought to declare their treaties with France void, or suspended?

This contains my answer to the 2d 3d 4th 5th & 6th of the written queries.

The 1st had been before answered & acted on.

The 7th 8th 9th & 10th are questions on the Guarantee, which it may possibly never be necessary to answer; or if we should be called on we may then take due time to give in the answer, which

must always be framed in a considerable degree on the circumstances existing at that moment.

The 4th page of the inclosed contains my answer to the 11th

The 12th I answer by saying that if the Nation of France shall ever reestablish such an officer as Regent (of which there is no appearance at present) I should be for receiving a Minister from him but I am not for doing it from any Regent, so christened, and set up by any other authority.

The 13th has been decided negatively.

OPINION ON FRENCH TREATIES.

W. MSS.

Apr. 28, 1793.

I proceed, in compliance with the requisition of the President, to give an opinion in writing on the general Question, Whether the U S. 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 & consesequences. 'France was a monarchy when we entered into treaties with it but it has now declared itself a Republic, & is preparing a Republican form of government. As it may issue in a Republic, or a Military despotism, or in 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; & 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 organisation of them in form or function whenever they please: that all the acts done by those agents under the authority of the nation, are the acts of the nation, are obligatory on them, & enure to their use, & can in no wise be annulled or affected by any change in the form of the government, or of the persons administering it. Consequently the Treaties between the US. and France, were not treaties between the US. & Louis Capet, but between the two nations of America & France, and the nations remaining in existance, tho' 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, & 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 & 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 & society the same moral duties exist as did between the individuals composing them while in an unassociated state, their maker not having released them from those duties on their forming themselves into a nation. Compacts then between nation & 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 & man: so are there also between nation & nation. When performance, for instance, becomes impossible, non-performance is not immoral. So if performance becomes self-destructive to the party, the law of self-preservation overrules the laws of obligation to others. For the reality of these principles I appeal to the true fountains of evidence, the head & heart of every rational & honest man. It is there Nature has written her moral laws, & where every man may read them for himself. He will never read there the permission to annul his obligations for a time, or for ever, whenever they become dangerous, useless, or disagreeable.' Certainly not when merely useless or disagreeable, as seems to be said in an authority which has been quoted, Vattel. 2. 197, and tho he may under certain degrees of danger, yet the danger must be imminent, & 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, & that also of the opinion of the world. These will revise the sentence we pass in our own case, & as we respect these, we must see that in judging ourselves we have honestly done the part of impartial & vigorous 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 & imminent. Is such the character of that now apprehended from our treaties with France? What is that danger. 1. 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 a perfect despotism, civil & military. yet the treaties were made in that very state of things, & therefore that danger can furnish no just cause. 2. 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, & not their dread. They do not look with longing to the happy mean of a limited monarchy. 3. But says the doctrine I am combating, the change the French are

In

undergoing may possibly end in something we know not what, and bring on us danger we know not whence. short it may end in a Rawhead & bloody-bones in the dark. Very well. Let Rawhead & bloody bones come, & then we shall be justified in making our peace with him, by renouncing our antient friends & his enemies. For observe, it is not the possibility of danger, which absolves a party from his contract: for that possibility always exists, & in every case. It existed in the present one at the moment of making the contract. If possibilities would avoid contracts, there never could be a valid contract. For possibilities hang over everything. Obligation is not suspended, till the danger is become real, & 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 it's shape, which does not yet exist, & 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. The danger apprehended, is it that, the treaties remaining valid, the clause guarantying their West India islands will engage us in the war? But Does the Guarantee engage us to enter into the war in 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 imminently 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 negociations with their enemy?

If all these questions be against us, there are still others 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?