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. | Puffendorf 8. 9. 6. | Wolf 1146. | Vattel 2. 197. |
| 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. | 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. | 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. | 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, Section 158, "lesion cannot render a treaty invalid. It is his duty who enters into engagements, to weigh well all things before he concludes. He may do with his property what he pleases. He may relinquish his rights or renounce his advantages, as he judges proper. The acceptant is not obliged to inform himself of his motives nor to weigh then just value. If we could free ourselves from a compact because we find ourselves injured by it, there would be nothing firm in the contracts of nations. Civil laws may set limits to lesion, and determine the degree capable of producing a nullity of the contract; but sovereigns acknowledge no judge. How establish lesion among them? Who will determine the degree sufficient to invalidate a treaty? The happiness and peace of nations require manifestly that their treaties should not depend on a means of nullity so vague and so dangerous."
Let us hear him again on the general subject of the observation of treaties, Section 163: "It is demonstrated in natural law that he who promises another, confers on him a perfect right to require the thing promised, and that consequently, not to observe a perfect promise is to violate the right of another; it is as manifest injustice as to plunder any one of their right. All the tranquillity, the happiness and security of mankind, rest on justice or the obligation to respect the rights of others. The respect of others for our right of domain and property is the security of our actual possessions. The faith of promises is the security for the things which cannot be delivered or executed on the spot. No more security, no more commerce among men, if they think themselves not bound to preserve faith, to keep their word. This obligation, then, is as necessary as it is natural and indubitable among nations who live together in a state of nature, and who acknowledge no superior on earth. To maintain order and peace in their society, nations and their governors then ought to observe inviolably their promises and their treaties. This is a great truth, although too often neglected in practice, is generally acknowledged by all nations, the reproach of perfidy is a bitter affront among sovereigns. Now he who does not observe a treaty is assuredly perfidious, since he violates his faith. On the contrary, nothing is so glorious to a prince and his nation as the reputation of inviolable fidelity to his word." Again, Section 219, "Who will doubt that treaties are of the things sacred among nations? They decide matters the most important; they impose rules on the pretensions of sovereigns, they cause the rights of nations to be acknowledged; they assume their most precious interests. Among political bodies, sovereigns, who acknowledge no superior on earth, treaties are the only means of adjusting their different pretensions; of establishing a rule, to know on what to count, on what to depend. But treaties are but vain words, if nations do not consider them as respectable engagements, as rules inviolable for sovereigns, and sacred through the whole earth." Section 220: "The faith of treaties, that firm and sincere will, that invincible constancy in fulfilling engagements, of which a declaration is made in a treaty, is then holy and sacred among nations, whose safety and repose it ensures; and if nations will not be wanting to themselves, they will load with infamy whoever violates his faith."
After evidence so copious and explicit of the respect of this author for the sanctity of treaties, we should hardly have expected that his authority would have been resorted to for a wanton invalidation of them whenever they should become merely useless or disagreeable. We should hardly have expected that, rejecting all the rest of his book, this scrap would have been culled and made the hook whereon to hang such a chain of immoral consequences. Had the passage accidentally met our eye, we should have imagined it had fallen from the author's pen under some momentary view, not sufficiently developed to found a conjecture what he meant, and we may certainly affirm that a fragment like this cannot weigh against the authority of all other writers; against the uniform and systematic doctrine of the very work from which it is torn; against the moral feelings and the reason of all honest men. If the terms of the fragment are not misunderstood, they are in full contradiction to all the written and unwritten evidences of morality. If they are misunderstood, they are no longer a foundation for the doctrines which have been built on them.
But even had this doctrine been as true as it is manifestly false, it would have been asked, to whom is it that the treaties with France have become disagreeable? How will it be proved that they are useless?
The conclusion of the sentence suggests a reflection too strong to be suppressed, "for the party 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 republic of the United States allied itself with France when under a despotic government. She changes her government, and declares it shall be a republic; prepares a form of republic extremely free, and in the meantime is governing herself as such. And it is proposed that America shall declare the treaties void, because it may say with truth that it would not have allied itself with that nation if it had been under the present form of its government. Who is the American who can say with truth that he would not have allied himself to France if she had been a republic? Or that a republic of any form would be as disagreeable as her ancient despotism?