Chapter XXXII: Part I (7)

1. The Constitution says "Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts &c., provide for the common defence and _general welfare_ of the United States." I do not consider this clause as reaching the point. I suppose its meaning to be, that Congress may collect taxes for the purpose of providing for the _general welfare_, in those cases wherein the Constitution empowers them to act for the general welfare. To suppose that it was meant to give them a distinct substantive power, to do _any act_ which might tend to the _general welfare_, is to render all the enumerations useless, and to make their powers unlimited. We must seek the power therefore in some other clause of the Constitution. It says further, that Congress shall have power to "define and punish piracies and felonies committed on the high seas, and offences against the law of nations." These offences were not committed on the high seas, and consequently not within that branch of the clause. Are they against the law of nations, taken as it may be in its whole extent, as founded, 1st, in nature; 2d, usage; 3d, convention? So much may be said in the affirmative, that the legislators ought to send the case before the judiciary for discussion; and the rather, when it is considered that unless the offenders can be punished under this clause, there is no other which goes directly to their case, and consequently our peace with foreign nations will be constantly at the discretion of individuals.

2. Have the legislators sent this question before the Courts by any law already provided? The act of 1789, chapter 20, section 9, says the district courts shall have cognizance concurrent with the courts of the several States, or the circuit courts, of all causes, where an _alien sues for a tort only_, in violation of the law of nations: but what if there be no alien whose interest is such as to support an action for the tort?--which is precisely the case of the aggression on Florida. If the act in describing the jurisdiction of the Courts, had given them cognizance of proceedings by way of indictment or information against offenders under the law of nations, for the public wrong, and on the public behalf, as well as to an individual for the special tort, it would have been the thing desired.

The same act, section 13, says, the "Supreme Court shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics or domestic servants, as a court of law can have or exercise consistently, with the law of nations."--Still this is not the case, no ambassador, &c., being concerned here. I find nothing else in the law applicable to this question, and therefore presume the case is still to be provided for, and that this may be done by enlarging the jurisdiction of the courts, so that they may sustain indictments and informations on the public behalf, for offences against the law of nations.

[_A note added by Mr. Jefferson at a later period._]

On further examination it does appear that the 11th section of the judiciary act above cited gives to the circuit courts exclusively, cognizance of all crimes and offences cognizable under the authority of the United States, and not otherwise provided for. This removes the difficulty, however, but one step further;--for questions then arise, 1st. What is the peculiar character of the offence in question; to wit, treason, felony, misdemeanor, or trespass? 2d. What is its specific punishment--capital or what? 3d. Whence is the venue to come?

XXXI.--_Report on Assays at the Mint, communicated to the House of Representatives, January 8, 1793._

The Secretary of State, to whom was referred, by the President of the United States, the resolution of the House of Representatives of the 29th of November, 1792, on the subject of experiments of France, England, Spain, and Portugal, reports:

That assays and experiments have been, accordingly, made at the mint, by the director, and under his care and inspection, of sundry gold and silver coins of France, England, Spain, and Portugal, and of the quantity of fine gold and alloy in each of them, and the specific gravities of those of gold given in by the director, a copy of which, and of the letter covering it, are contained in the papers marked A and B.

A.

January 7, 1793.

SIR:--I have, herewith, enclosed the result of our assays, &c., of the coins of France, England, Spain, and Portugal. In the course of the experiments, a very small source of error was detected, too late for the present occasion, but which will be carefully guarded against in future.

I am, with the most perfect esteem, your most obedient humble servant,

DAVID RITTENHOUSE, _Director of the Mint_.

THOMAS JEFFERSON, _Secretary of State_.

_B._

_Assay of gold coins._

=======================+==============================+==========
| In 24 grains. |
Date +--------------+---------------+ Specific
| Fine gold. | Alloy. | gravity.
-----------------------+--------------+---------------+----------
| grs. 32 pts.| grs. 32 pts.|
{1726| 21 16 | 2 16 | 17.48
{1734| 21 19 | 2 13 | 17.38
French guineas, {1742| 21 26 | 2 06 | 17.58
{1753| 21 03 | 2 29 | 17.23
{1775| 21 22 | 2 10 | 17.57
{1786| 21 22 | 2 10 | 17.51

Double do. {1789| 21 22 | 2 10 | 17.50
{1790| 21 25 | 2 07 | 17.57
{1776| 21 21 | 2 11 | 17.53
{1780| 21 00 | 3 00 | 17.57

Spanish pistoles, {1786| 21 18 | 2 14 | 17.63
{1788| 21 02 | 2 30 | 17.00

{1755| 21 28 | 2 04 | 17.78
{1777| 21 31 | 2 01 | 17.75
{1785| 21 30 | 2 02 | 17.78
English guineas, {1788| 21 31 | 2 01 | 17.79
{1789| 22 03 | 1 29 | 17.78
{1791| 22 01 | 1 31 | 17.74
-----------------------+--------------+---------------+---------
{1739| 21 31 | 2 01 | 17.63
{1770| 22 05 | 1 27 | 17.78
Half johannes of {1776| 22 05 | 1 27 | 17.87
Portugal, {1785| 21 30 | 2 02 | 17.68
{1788| 21 31 | 2 01 | 17.78
=======================+==============+===============+=========

_Silver coins._

=================================+=================================
| In 12 ounces.
Date. +----------------+----------------
| Fine silver. | Alloy.
---------------------------------+----------------+----------------
| oz. dwts. grs. | oz. dwts. grs.
English half-crown of William | |
III. | 10 19 09½ | 1 00 14½
English shilling, 1787| 11 00 02½ | 0 19 21½
French crown, 1791| 10 16 00 | 1 04 00
Do. half-crown, 1739| 10 17 00 | 1 03 00
Do. 1792| 10 16 19 | 1 03 05
{ 1772| 10 15 05 | 1 04 19
Spanish dollar of { 1782| 10 14 02½ | 1 05 21½
{ 1790| 10 14 00 | 1 06 00
{ 1791| 10 14 21½ | 1 05 02½
=================================+================+================

MINT, January 7, 1793.

Assayed by Mr. David Ott, under my inspection, at the mint, in pursuance of a resolution of Congress of November 29, 1792. I have added the specific gravity of each piece of gold coin.

DAVID RITTENHOUSE, _Director of the Mint_.

XXXII.----_Report on the petition of John Rogers, relative to certain lands on the north-east side of the Tennessee._

February 16, 1793.

The Secretary of State, to whom was referred, by the House of Representatives of the United States, the petition of John Rogers, setting forth, that as an officer of the State of Virginia, during the last war, he became entitled to two thousand acres of lands on the north-east side of the Tennessee, at its confluence with the Ohio, and to two thousand four hundred acres in different parcels, between the same river and the Mississippi, all of them within the former limit of Virginia, which lands were allotted to him under an act of the Legislature of Virginia, before its deed of cession to the United States; that by the treaty of Hopewell, in 1786, the part of the country comprehending these lands was ceded to the Chickasaw Indians; and praying compensation for the same,

Reports, That the portion of country comprehending the said parcels of land, has been ever understood to be claimed, and has certainly been used, by the Chickasaw and Cherokee Indians for their hunting grounds. The Chickasaws holding exclusively from the Mississippi to the Tennessee, and extending their claim across that river, eastwardly, into the claims of the Cherokees, their conterminous neighbors.

That the government of Virginia was so well apprized of the rights of the Chickasaws to a portion of country within the limit of that State, that about the year 1780, they instructed their agent, residing with the southern Indians, to avail himself of the first opportunity which should offer, to purchase the same from them, and that, therefore, any act of that Legislature allotting these lands to their officers and soldiers must probably have been passed on the supposition, that a purchase of the Indian right could be made, which purchase, however, has never been made.

That, at the treaty of Hopewell, the true boundary between the United States on the one part, and the Cherokees and Chickasaws on the other, was examined into and acknowledged, and by consent of all parties, the unsettled limits between the Cherokees and Chickasaws were at the same time ascertained, and in that part particularly, were declared to be the highlands dividing the waters of the Cumberland and Tennessee, whereby the whole of the petitioner's locations were found to be in the Chickasaw country.

That the right of occupation of the Cherokees and Chickasaws in this portion of the country, having never been obtained by the United States, or those under whom they claim it, cannot be said to have been ceded by them at the treaty of Hopewell, but only recognized as belonging to the Chickasaws, and retained to them.

That the country south of the Ohio was formerly contested between the Six Nations and the southern Indians for hunting grounds.

That the Six Nations sold for a valuable consideration to the then government their right to that country, describing it as extending from the mouth of the Tennessee upwards. That no evidence can at this time and place be procured, as to the right of the southern Indians, that is to say, the Cherokees and Chickasaws, to the same country; but it is believed that they voluntarily withdrew their claims within the Cumberland river, retaining their right so far, which consequently could not be conveyed from them, or to us, by the act of the Six Nations, unless it be proved that the Six Nations had acquired a right to the country between the Cumberland and Tennessee rivers by conquest over the Cherokees and Chickasaws, which it is believed cannot be proved.

That, therefore, the locations of the petitioner must be considered as made within the Indian territory, and insusceptible of being reduced into his possession, till the Indian right be purchased.

That this places him on the same footing with Charles Russell and others, officers of the same State, who had located their bounty lands in like manner, within the Chickasaw lines, whose case was laid before the House of Representatives of the United States at the last session, and remains undecided on; and that the same and no other measure should be dealt to this petitioner which shall be provided for them.

XXXIII.--_Report relative to the Boundaries of the Lands between the Ohio and the Lakes acquired by treaties from the Indians._

March 10, 1793.

The Secretary of State, according to instructions received from the President of the United States,

Reports, That, for the information of the commissioners appointed to treat with the western Indians, he has examined the several treaties entered into with them subsequent to the declaration of Independence, and relating to the lands between the Ohio and the lakes, and also the extent of the grants, reservations, and appropriations of the same lands, made either by the United States, or by individual States within the same period, and finds that the lands obtained by the said treaties, and not so granted, reserved, or appropriated, are bounded by the following lines, to wit:

Northwardly. By a line running from the fork of the Tuscarora's branch of the Muskingum, at the crossing-place above Fort Lawrence. Westwardly (towards the portage of the Big-Miami) to the main branch of that river, then down the Miami, to the fork of that river next below the old fort, which was taken by the French in 1752, thence due west to the river De la Panse, and down that river to the Wabash; which lines were established with the Wiandots, Delawares, Chippawas, and Ottawas, by the treaty of Fort McIntosh, and with the Shawanese by that of the Great Miami.

Westwardly. By the bounds of the Wabash Indians.

Eastwardly. By the million of acres appropriated to military claimants, by the resolution of Congress of October 23, 1787, and lying in the angle between the seventh range of townships counted westwardly, from the Pennsylvania boundary, and the tenth range counted from the Ohio northwardly along the said seventh, which million of acres may perhaps extend westwardly, so as to comprehend the twelfth range of townships, counted in that direction from the Pennsylvania boundary, under which view the said twelfth range may be assumed for the eastern boundary of the territory now under consideration, from the said tenth range to the Indian line.

Southwardly. By the northern boundary of the said tenth range of townships to the Sioto river, and along the said river to what shall be the northern limits of the appropriations for the Virginia line; (which two last lines are those of the lands granted to the Sioto company,) thence along what shall be the _northern_ limits of the said appropriations of the Virginia line to the little Miami, and along the same to what shall be the northern limit of one million of acres of land purchased by John C. Symmes; thence due west along the said northern limit of the said John C. Symmes, to the Great Miami, and down the same to its mouth, then along the Ohio to General Clark's lands, and round the said lands to the Ohio again, and down the same to the Wabash, or the lands of the Indians inhabiting it. Which several lines are delineated on the copy of Hutchins' map accompanying this report; the dotted parts of the delineation denoting that they are conjectural. And it is further necessary to apprize the commissioners that though the points at which these several lines touches the Ohio, are taken from actual surveys, yet the country included by the said lines, not being laid down from actual survey, their lengths and intersections with each other, and with the watercourses, as appearing in the maps, are not at all to be relied on. No notice is here taken of the lands at the mouth of the Ohio appropriated for military bounties by the same resolution of Congress of October 22, 1787, nor of the settlement of Cahokea, Kaskaskia, Post Vincennes, &c., because these can concern no Indians but those of the Illinois and Wabash, whose interests should be transacted with themselves separately, and not be permitted to be placed under the patronage of the western Indians.

XXXIV.--_Report on the proceedings of the Secretary of State to transfer to Europe the annual fund of $40,000, appropriated to that Department._

April 18, 1793.

The Secretary of State thinking it his duty to communicate to the President his proceedings of the present year for transferring to Europe the annual fund of $40,000 appropriated to the Department of State, (a report whereof, was unnecessary the two former years, as monies already in the hands of our bankers in Europe were put under his orders,)

Reports, That in consequence of the President's order of March 23d, he received from the Secretary of the Treasury, March 31st, a warrant on the Treasurer for $39,500; that it being necessary to purchase private bills of exchange to transfer the money to Europe, he consulted with persons acquainted with that business, who advised him not to let it be known that he was to purchase bills at all, as it would raise the exchange; and to defer the purchase a few days until the British packet should be gone, on which event bills generally sunk some few per cent. He therefore deferred the purchase, or giving any orders for it till April 10th, when he engaged Mr. Vaughan (whose line of business enabled him to do it without suspicion,) to make the purchase for him. He then delivered the warrant to the Treasurer, and received a credit at the Bank of the United States for $39,500, whereon he had an account opened between "The Department of State and the Bank of the United States." That Mr. Vaughan procured for him the next day the following bills:

Willing, Morris, and Swanwich, on John and Francis Baring & Co., London, £3,000=$13,000.

Walter Stewart on Joseph Birch, March, Liverpool, £400=$1,733 33.

Robert Gilmer & Co., on James Strachan and James Mackenzie, London, endorsed by Mordecai Lewis.

£200 }
150 } £600 $2,600
250 } --------------------
£4,000 = $17,333 33.

Averaging 4s. 7-38/100d. the dollar, or about 2½ per cent. above par, which added to the one per cent loss heretofore always sustained on the government bills (which allowed but 99 florins, instead of 100 do. for every $40) will render the fund somewhat larger this year than heretofore; that these bills being drawn on London, (for none could be got on Amsterdam but to considerable loss, added to the risk of the present possible situation of that place), he had them made payable to Mr. Pinckney, and enclosed them to him by Captain Cutting, in the letter of April 12th, now communicated to the President, and at the same time wrote the letters of the same date to our bankers at Amsterdam and to Col. Humphreys, now also communicated to the President, which will place under his view the footing on which this business is put, and which is still subject to any change he may think proper to direct, as neither the letters, nor bills are yet gone.

The Secretary of State proposes, hereafter, to remit in the course of each quarter $10,000 for the ensuing quarter, as that will enable him to take advantage of the times when exchange is low. He proposes to direct, at this time, a further purchase of $12,166 66, (which with the $500 formerly obtained and $17,333 33 now remitted, will make $30,000 of this year's fund,) at long sight, which circumstance with the present low rate of exchange, will enable him to remit it to advantage.

He has only further to add that he delivered to Mr. Vaughan orders on the bank of the United States in favor of the persons themselves from whom the bills were purchased, for their respective sums.

XXXV.--_Opinion on the question whether the United States have a right to renounce their treaties with France, or to hold them suspended till the government of that country shall be established._

April 28, 1793.

I proceed in compliance with the requisition of the President to give an opinion in writing on the general question, whether the United States 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 and consequences. France was a monarchy when we entered into treaties with it; but it has declared itself a republic, and is preparing a republican form of government. As it may issue in a republic or a military despotism, or 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; and 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 organization of them in form or function whenever they please; that all the acts done by these agents under the authority of the nation, are the acts of the nation, are obligatory to them and enure to their use, and 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 United States and France, were not treaties between the United States and Louis Capet, but between the two nations of America and France; and the nations remaining in existence, though 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, and 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, and 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 and society the same moral duties exist as did between the individuals composing them, while in an unassociated state, and their maker not having released them from those duties on their forming themselves into a nation. Compacts then, between nation and 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 and man; so are there also between nation and 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 in others. For the reality of these principles I appeal to the true fountains of evidence, the head and heart of every rational and honest man. It is there nature has written her moral laws, and where every man may read them for himself. He will never read there the permission to annul his obligations for a time, or forever, 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, p. 2, 197) and though he may, under certain degrees of danger, yet the danger must be imminent, and 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, and that also of the opinion of the world. These will revise the sentence we pass in our own case, and as we respect these, we must see that in judging ourselves we have honestly done the part of impartial and rigorous 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 and imminent. Is such the character of that now apprehended from our treaties with France? What is that danger? 1st. 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 perfect despotism, civil, and military, yet the treaties were made in that very state of things, and, therefore, that danger can furnish no just cause.

2d. 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, and not their dread. They do not look with longing to the happy mean of a limited monarchy.

3d. But, says the doctrine I am combatting, the change the French are undergoing, may possibly end in something we know not what, and may bring on us danger we know not whence. In short, it may end in a Raw-head and bloody bones in the dark. Very well--let Raw-head and bloody bones come. We shall be justified in making our peace with him by renouncing our ancient friends and his enemies; for observe, it is not the _possibility of danger_ which absolves a party from his contract for that possibility always exists, and in every case. It existed in the present one, at the moment of making the contract. If _possibilities_ would void 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 its shape, which does not yet exist, and 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. As to the danger apprehended, Is it that (the treaties remaining valid) the clause guaranteeing their West Indian lands will engage us in the war? But does the guarantee engage us to enter into the war on 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 immediately 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 are against us, there are still others left 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?

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

5. Is danger apprehended from the 17th article of the treaty of commerce, which admits French ships of war and 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 and 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, and placed us in her ports on the same footing in 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, and 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 article of our treaty of commerce, which prohibits the enemies of France from fitting out privateers in our posts, 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 Colonel Hamilton has given his opinion, though reluctantly, as he confessed,) is an acknowledgment 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 and to 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, and 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 acknowledged to be going on still?--for it was not pretended the treaty was void, but only voidable if we choose 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 and deny that the most explicit declaration made at this moment that we acknowledge the obligation of the treaties, could take from us the right of non-compliance at any future time, when compliance would involve us in great and inevitable danger.

I conclude, then, that few of these sources threaten any danger at all; and from none of them is it inevitable; and 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 and inevitable danger on us, and not from the residue, allowing 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 treaty which can really lead us into danger, is the clause of guarantee. That clause is all that 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 when 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 and does not dispense with it. 2 Vattel, 324. Wolf, 270. 443. If actual circumstances excuse us from entering into the war under the clause of guarantee, it will be a question whether they excuse us from compensation. Our weight in the war admits of an estimate; and that estimate would form the measure of compensation.

If, in withholding a compliance with any part of the treaties we do it without just cause or compensation, we give to France a cause of war, and so become associated in it on the other side. An injured friend is the bitterest of foes, and France has not discovered either timidity, or over-much forbearance on the late occasions. Is this the position we wish to take for our constituents? It is certainly not the one they would take for themselves.

I will proceed now to examine the principal authority which has been relied on for establishing the right of self-liberation; because though just in part, it would lead us far beyond justice, if taken in all the latitude of which his expressions would admit. Questions of natural right are triable by their conformity with the moral sense and reason of man. Those who write treatises of natural law, can only declare what their own moral sense and reason dictate in the several cases they state. Such of them as happen to have feelings and a reason coincident with those of the wise and honest part of mankind, are respected and quoted as witnesses of what is morally right or wrong in particular cases. Grotius, Puffendorf, Wolf, and Vattel are of this number. Where they agree their authority is strong; but where they differ, (and they often differ,) we must appeal to our own feelings and reason to decide between them. The passages in question shall be traced through all these writers; that we may see wherein they concur, and where that concurrence is wanting. It shall be quoted from them in the order in which they wrote, that is to say, from Grotius first, as being the earliest writer, Puffendorf next, then Wolf, and lastly Vattel, as latest in time.

GROTIUS 2. 16. 16.

Hither must be referred the common question concerning personal and real treaties. If indeed it be with a free people, there can be no doubt but that the engagement is in its nature real, because the subject is a permanent thing, and even though the government of the State be changed into a kingdom, the treaty remains; because the same body remains though the head is changed; and as it was before now, the government which is exercised by a king does not cease to be the government of the people. There is an exception when the object seems peculiar to the government, as if free cities contract a league for the defence of their freedom.

PUFFENDORF 8. 9. 6.

It is certain that every alliance made with a republic is real in its nature, and continues consequently to the terms agreed on by the treaty, although the magistrates who concluded it be dead before, so that the form of government is changed even from a democracy to a monarchy, for in this case the people do not cease to be the same, and the king, in the case supposed, being established by the consent of the people who abolished the republican government, is understood to accept the crown with all the engagements which the people confessing it had contracted as being free and governing themselves. There must nevertheless be an exception of the alliances contracted with a view to preserve the present government; as if two republics league for mutual defence against those who would undertake to invade their liberty; for if one of these two people consent afterwards voluntarily to change the form of the government, the alliance ends of itself, because the reason on which it was founded no longer subsists.

WOLF 1146.

The alliance which is made with a free people, or with a popular government, is a real alliance; and as when the form of government changes, the people remain the same (for it is the association which forms the people, and not the manner of administering the government). This alliance subsists, though the form of government changes, _unless_, as is evident, the reason of the alliance was particular to the popular state.

VATTEL 2. 197.

The same question presents itself in real alliances, and in general on every alliance made with a State, and not in particular with a king for the defence of his person. We ought, without doubt, to defend our ally against all invasion, against all foreign violence, and even against rebel subjects. We ought, in like manner, to defend a republic against the enterprises of an oppressor of the public liberty. But we ought to recollect that we are the ally of the state or of the nation, and not its judge. If the nation has deposed its king in form; if the people of a republic have driven away its magistrates, and have established themselves free, or if they have acknowledged the authority of an usurper, whether expressly or tacitly, to oppose these domestic arrangements--to contest their justice or validity--would be to meddle with the government of the nation, and to do it an injury. The ally remains the ally of the state, notwithstanding the change which has taken place; _but if this change renders the alliance useless, dangerous, or disagreeable to it, it is free to renounce it; for it may say with truth, that it would not have allied itself with this nation, if it had been under the present form of its government_.

The doctrine then of Grotius, Puffendorf, and Wolf is, that "treaties remain obligatory, notwithstanding any change in the form of government, except in the single case, where the preservation of that form was the object of the treaty;" there the treaty extinguishes, not by the election or declaration of the party remaining in _statu quo_, but independently of that, by the evanishment of the object. Vattel lays down in fact the same doctrine, that treaties continue obligatory, notwithstanding a change of government by the will of the other party;--that to oppose that will would be a wrong; and that the ally remains an ally, notwithstanding the change. So far he concurs with all the previous writers:--but he then adds what they had not said nor could say; but if this change renders the alliance _useless_, _dangerous_ or _disagreeable_ to it, it is free to renounce it. It was unnecessary for him to have specified the exception of _danger_ in this particular case, because the exception exists in all cases, and its extent has been considered; but when he adds that, because a contract is become merely _useless_ or _disagreeable_ we are free to renounce it,--he is in opposition to Grotius, Puffendorf, and Wolf, who admit no such license against the obligation of treaties, and he is in opposition to the morality of every honest man to whom we may safely appeal to decide whether he feels himself free to renounce a contract the moment it becomes _merely useless_ or _disagreeable_ to him. We may appeal to Vattel himself in those parts of his book where he cannot be misunderstood, and to his known character, as one of the most zealous and constant advocates for the preservation of good faith in all our dealings. Let us hear him on other occasions; and first where he shows what degree of danger or injury will authorize self-liberation from a treaty: "If simple lesion," (lesion--the loss sustained by selling a thing for less than half value, which degree of loss renders the sale void by the Roman law,) "if simple lesion," says he, "or some degree of disadvantage in a treaty does not suffice to render it invalid, it is not so as to inconvenience which would go to the _ruin_ of the nation. As every treaty ought to be made by sufficient power, a treaty pernicious to the State is null, and not at all obligatory. No governor of a nation having power to engage things capable of _destroying_ the State, for the safety of which the empire entrusts to him, the nation itself, bound necessarily to whatever its preservation and safety require, cannot enter into engagements contrary to its indispensable obligations." Here then we find that the degree of injury or danger which he deems sufficient to liberate us from a treaty, is that which would go to the absolute ruin or destruction of the State;--not simply the lesion of the Roman law, not merely the being disadvantageous or dangerous; for as he himself says,