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Without knowing how far the reasons which have occurred to me may have influenced the president, there appear to me to exist very good and substantial grounds for a refusal.

The alliance between the United States and France, is of the defensive kind. In the caption, it is denominated a “ treaty of alliance eventual and defensive." In the body (article the second) it is called a defensive al. liance. The words of that article are as follow : “ the "essential and direct end of the present defensive alli

ance is to maintain effectually the liberty, sovereignty, " and independence, absolute and unlimited, of the Uni"ted States, as well in matters of government, as of commerce,

The leading character then of our alliance with France being defensive, it will follow that the meaning, obligation, and force, of every stipulation in the treaty, must be tested by the principles of such an alliance; unless in any instance terms have been used which clearly and unequivocally denoted a different intent.

T'he principal question consequently is : what is the nature and effect of a defensive alliance? When does the casus federis take place, in relation to it?

Reason, the concurring opinions of writers, and the practice of nations, will all answer: "when either of

the allies is attacked, when war is made upon him, not 86 when he makes war upon another :" in other words, “ the stipulated assistance is to be given when our ally " is engaged in a defensive, not when he is engaged in

an offensive war.” This obligation to assist only in a defensive war, constitutes the essential difference between an alliance which is merely defensive, and one which is both offensive and defensive. In the latter case, there is an obligation to co-operate as well when the war, on the part of our ally, is of the latter, as when it is of the former description. To affirm, therefore, that the United States are bound to assist France in the war in which she is at present engaged, will be to convert our treaty with her into an alliance offensive and defen. sive, contrary to the express and reiterated declarations of the instrument itself.

This assertion implies, that the war in question is an offensive war on the part of France.

And so it undoubtedly is, with regard to all the pow. ers with whom she was at war, at the time of issuing tho proclamation.

No position is better established, than that the nation wbich first declares, or actually begins a war, whatever may have been the causes leading to it, is that which makes an offensive war. Nor is there any doubt, that France first declared and began the war, against Austria, Prussia, Savoy, Holland, England, and Spain.

Upon this point there is apt to be some incorrectness of ideas. Those who have not examined subjects of such a nature, are led to imagine that the party which commits the first injury, or gives the first provocation, is on the offensive side, though hostilities are actually begun by the other party.

But the cause or the occasion of the war, and the war itself, are things entirely distinct. It is the commencement of the war itself which decides the question, whether it be offensive or defensive, All writers on the laws of nations agree in this doctrine, but it is most accurately laid down in the following extracts from Burlamaqui.*

“ Neither are we to believe (says he) that he who first “ injures another, begins by that an offensive war, and “ that the other who demands the satisfaction for the “ injury received, is always on the defensive. There “ are a great many unjust acts, which may kindle a war, “and which, however, are not the war itself; as the ill “ treatment of a prince's ambassadors, the plundering of “ his subjects, &c.

If, therefore, we take up arms to revenge such an in. just act, we commence an offensive, but a just war; and the prince who has done the injury, and will not give satisfaction, makes a defensive, but an unjust war.

Vol. II, Book IV, Chap. III, Sec. 4,5.

We must therefore affirm, in general, that the first who takes up arms, whether justly or unjustly, commences an offensive war; and he who opposes him, whether with or without reason, begins a defensive war.

France then being on the offensive in the present war, and our alliance with her being defensive only, it fol. lows, that the casus federis, or condition of our guarantee, cannot take place; and that the United States are free to refuse a performance of that guarantee, if de. manded.

Those who are disposed to justify indiscriminately every thing in the conduct of France, may reply, that though the war, in point of form, may be offensive on her part, yet in point of principle, it is defensive; was in each instance, a mere anticipation of attacks meditated against her, and was justified by previous aggres. sions of the opposite parties.

It is believed, that it would be a sufficient answer to this observation to say, that in determining the legal and positive obligations of the United States, the only point of inquiry is, whether the war was in fact begun by France, or by her enemies ; that all beyond this is too vague, too liable to dispute, too much matter of opinion to be a proper criterion of national conduct; that when a war breaks out between two nations, all others in regard to the positive rights of the parties, and their positive duties towards them, are bound to consider it as equally just on both sides; that consequently in a defensive al. liance, when war is made upon one of the allies, it is the duty of the other to fulfil the conditions stipulated on its part, without inquiry, whether the war is rightfully begun or not; as, on the other hand, when war is commenced by one of the allies, the other is exempted from the obli. gation to assist, however just the commencement of it may have been

T'his doctrine is founded upon the utility of clear and certain rules for determining the reciprocal duties of nations, in order that as little as possible may be left to opinion, and to the subterfuges of an over-refining or unfaithful casuistry.

sive, contrary to the express and reiterated declarations of the instrument itself.

This assertion implies, that the war in question is an offensive war on the part of France.

And so it undoubtedly is, with regard to all the pow. ers with whom she was at war, at the time of issuing the proclamation.

No position is better established, than that the nation wbich first declares, or actually begins a war, whatever may have been the causes leading to it, is that which makes an offensive war. Nor is there any doubt, that France first declared and began the war, against Austria, Prussia, Savoy, Holland, England, and Spain.

Upon this point there is apt to be some incorrectness of ideas. Those who have not examined subjects of such a nature, are led to imagine that the party which commits the first injury, or gives the first provocation, is on the offensive side, though hostilities are actually begun by the other party.

But the cause or the occasion of the war, and the war itself, are things entirely distinct. It is the commencement of the war itself which decides the question, whether it be offensive or defensive. All writers on the laws of nations agree in this doctrine, but it is most accurately laid down in the following extracts from Burlamaqui.* “ Neither are we to believe (says he)

that he who first “ injures another, begins by that an offensive war, and “ that the other who demands the satisfaction for the “ injury received, is always on the defensive. There

are a great many unjust acts, which may kindle a war, “ and which, however, are not the war itself; as the ill “ treatment of a prince's ambassadors, the plundering of “ his subjects, &c."

If, therefore, we take up arms to revenge such an unjust act, we commence an offensive, but a just war; and the prince who has done the injury, and will not give satisfaction, makes a defensive, but an unjust war.

Vol. II, Book IV, Chap. III, Sec. 4,5.

We must therefore affirm, in general, that the first who takes up arms, whether justly or unjustly, commences an offensive war; and he who opposes him, whether with or without reason, begins a defensive war.

France then being on the offensive in the present war, and our alliance with her being defensive only, it follows, that the casus federis, or condition of our guarantee, cannot take place; and that the United States are free to refuse a performance of that guarantee, if demanded.

Those who are disposed to justify indiscriminately every thing in the conduct of France, may reply, that though the war, in point of form, may be offensive on her part, yet in point of principle, it is defensive; was in each instance, a mere anticipation of attacks meditated against her, and was justified by previous aggres. sions of the opposite parties.

It is believed, that it would be a sufficient answer to this observation to say, that in determining the legal and positive obligations of the United States, the only point of inquiry is, whether the war was in fact begun by France, or by her enemies ; that all beyond this is too vague, too liable to dispute, too much matter of opinion to be a proper criterion of national conduct; that when a war breaks out between two nations, all others in regard to the positive rights of the parties, and their positive duties towards them, are bound to consider it as equally just on both sides; that consequently in a defensive al. liance, when war is made upon one of the allies, it is the duty of the other to fulfil the conditions stipulated on its part, without inquiry, whether the war is rightfully begun or not; as, on the other hand, when war is commenced by one of the allies, the other is exempted from the obligation to assist, however just the commencement of it may have been.

l'his doctrine is founded upon the utility of clear and certain rules for determining the reciprocal duties of nations, in order that as little as possible may be left to opinion, and to the subterfuges of an over.refining or unfaithful casuistry.

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