The Writings of Thomas Jefferson, Vol. 7 (of 9) / Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private

by Thomas Jefferson

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.