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 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 U. S. and France, were not treaties between the U. S. & Louis Capet, but between the two nations of America & France, and the nations remaining in existence, 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.

1. 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 undergoing may possibly end in something we know not what, and bring on us danger we know not whence. In 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, 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 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 negotiations 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?

Will not a 10 years forbearance in us to call them into the guarantee of our posts, entitle us to some indulgence?

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 the danger apprehended, it is not yet certain enough to authorize us in sound morality to declare, at this moment, the treaties null.

5. Is the danger apprehended from the 17th article of the treaty of Commerce, which admits French ships of war & 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 & 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, & placed us in her ports on the same footing on 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 & 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 Art. of our treaty of commerce, which prohibits the enemies of France from fitting out privateers in our ports, 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 Col. Hamilton has given this opinion, tho reluctantly as he confessed) is an acknolegement 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 & 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 us under the common usage of nations, & 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 acknoledged to be going on still? For it was not pretended the treaty was void, but only voidable if we chuse 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 & deny that the most explicit declaration made at this moment that we acknolege the obligation of the treatys could take from us the right of non-compliance at any future time when compliance would involve us in great & inevitable danger.

I conclude then that few of these sources threaten any danger at all; and from none of them is it inevitable: & 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 & inevitable danger on us, & not from the residue, allowing to 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 treaties which can really lead us into danger is the clause of guarantee. That clause is all then 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 where 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 & does