1. The terms of the guaranty are as follows:—
“The two parties guaranty, mutually, from the present time and forever, against all other powers, to wit: The United States to His Most Christian Majesty, the present possessions of the crown of France in America, as well as those which it may acquire by the future treaty of peace; and His Most Christian Majesty guaranties, on his part, to the United States, their liberty, sovereignty, and independence, absolute and unlimited, as well in matters of government as commerce, and also their possessions, and the additions or conquests that their Confederation may obtain during the war from any of the dominions now or heretofore possessed by Great Britain in North America.”[148]
To fix more precisely the sense of this article, it was further stipulated, that,—
“In case of a rupture between France and England, the reciprocal guaranty shall have its full force and effect the moment such war shall break out; and if such rupture shall not take place, the mutual obligations of the said guaranty shall not commence until the moment of the cessation of the present war between the United States and England shall have ascertained their possessions.”[149]
The possessions of France in America at this date were the islands of San Domingo, Martinique, Guadeloupe, St. Lucia, St. Bartholomew, Deseada, Mariegalante, St. Pierre, Miquelon, and, on the main-land, Cayenne,—each and all of which the United States guarantied to France forever, being a continuing guaranty, so far as this term of law is applicable to an international transaction, which, beginning “in case of a rupture between France and England,” was operative after “the cessation of the present war between the United States and England,” and was to continue “forever.”
The terms of the “guaranty” are general, and it was “forever.” Even if limited to defensive war, it would be difficult to say that France was not engaged in such a war, with the added incident that it was a war by a combination of kings to overcome a republic. France was alone, with the royalties of Europe embattled against her. Only after the execution of the King England joined this array, lending to it invincible navies. But, according to official avowals, it was what King George called “the atrocious act recently perpetrated at Paris”[150] that finally prompted the part she undertook, and her real object, in the language of Mr. Fox, was no other than “the destruction of the internal Government of France.”[151] The case was unprecedented; but it is difficult to say that it did not come under the “guaranty.” The casus fœderis had occurred. If France did not exact performance, that is no reason why our obligations should be disowned, when, at the present moment, we are trying to arrive at some appreciation of their extent. A careful examination of the treaty shows that the “guaranty” became primarily obligatory on the occurrence of a rupture between France and England. Nothing is said or suggested as to the character of the war, whether offensive or defensive. It is enough that there was “a rupture.” In such a case, the “guaranty,” according to the illustration of Cicero, was, tanquam gladius in vagina, at the disposal of France. Our Secretary of State, even while seeking to limit its application, seems to have seen it prospectively in this light, when, in his instructions of July 15, 1797, to our plenipotentiaries, Messrs. Pinckney, Marshall, and Gerry, he said, “Our guaranty of the possessions of France in America will perpetually expose us to the risk and expense of war, or to disputes and questions concerning our national faith.”[152]
2. The Treaty of Amity and Commerce contained a succession of mutual stipulations, by which the United States undertook,—first, to protect and defend by their ships of war, or convoy, any or all vessels belonging to French subjects, so long as they hold the same course, “against all attacks, force, and violence, in the same manner as they ought to protect and defend” the vessels of citizens of the United States;[153] secondly, to open their ports to French ships of war and privateers with their prizes, and to close them against those of any power at war with France, except when driven by stress of weather, and then “all proper means shall be vigorously used that they go out and retire from thence as soon as possible”;[154] thirdly, according to French construction, to allow French privateers “to fit their ships, to sell what they have taken, or in any other manner whatsoever to exchange their ships, merchandise, or any other lading,” while privateers in enmity with France are forbidden even to victual in ports of the United States.[155] As if to round and complete these engagements, it was further stipulated on the part of the United States, in a Consular Convention, which, after many perplexities of diplomacy baffling the tried skill of Franklin, was finally signed by Mr. Jefferson, in 1788, as a postscript to the earlier treaties, that French consuls and vice-consuls in the United States should have power and jurisdiction on board French vessels in civil matters, with the entire inspection over such vessels, their crews, and the changes and substitutions there to be made.[156]
Such, briefly recited, were the solemn engagements of the United States, sanctioned by treaties, as the price of independence. So long as France remained at peace with all the world, especially with Great Britain, these engagements slept unnoticed, but ready, at the first blast of war, to spring into life. At length the blast was heard, perhaps as never before in human history, echoing from capital to capital, and sounding a crusade of monarchical Europe against republican France. Of all the foreign ministers at Paris, the minister of the United States alone remained: the rest had fled.
The minister of the United States saw the danger lowering upon his own country. In a letter to the Secretary of State, dated December 21, 1792, after presenting a rapid sketch of the rising of Europe against France, he adds: “The circumstance of a war with Britain becomes important to us in more cases than one”; and he then alludes to “the question respecting the guaranty of American possessions, especially if France should attempt to defend her islands.”[157] Notoriously, Gouverneur Morris sympathized little with the French Republic, but, against all arguments for non-compliance with our original engagements, because the Government with which they were made had ceased to exist, his sensitive nature broke forth in the “wish that all our treaties, however onerous, may be strictly fulfilled according to their true intent and meaning,” which he followed in language foreign to the phrases of diplomacy, by picturing “the honest nation as that which, like the honest man,