"The Hamilton-Jefferson Debate on the Moral Obligations of Treaties"

The French Revolution caused a fundamental schism among Americans whom a decade before fomented their own Revolution: throwing off British rule with the help of the French Crown, who had now been toppled.

Without that help, the American Revolution would have been stillborn. "The French had no no doubt acted in their own self-interest in supporting the United States during the American Revolution," points out intellectual historian C. Bradley Thompson, 

not to mention their centuries-old hatred of Great Britain, but it is likewise true that the Americans almost certainly could not have won their war with Great Britain without the aid of France. In other words, the Americans’ debt of obligation to France was real.

But that royal regime who'd helped had now been swept away by the Parisian mob, and America's Founding Fathers were unsure whether to support the mob's revolutionary cause. Whether the obligation still applied. These were honourable men in a time in which honour mattered, and they wanted to keep their promises. There was one specific point that made answering the question crucial. And that was the question of treaties.

These honourable men began to debate the nature of treaties, and what moral obligations they imposed.

That's what makes their debate — a debate most publicly between Alexander Hamilton and Thomas Jefferson — so relevant to us today in New Zealand.

The specific issue that came to divide America [says Thompson*] concerned its two 1778 treaties with France [particularly once Revolutionary France declared war on Great Britain]. During some of the darkest days of the Americans’ war for independence against Great Britain, the infant nation signed a “Treaty of Alliance” and a “Treaty of Amity and Commerce” with France that were important factors in its eventual victory. Sentimentally, morally, and legally, the Americans owed a debt to France. ...
    The two immediate political questions under discussion in 1793 related to the treaties were: 1) were the Gallo-American treaties of 1778 still in effect in 1793, and 2) if they were still actionable, how or in what way did they apply to the current situation?
    What was most remarkable about the ensuing debate in America was that it quickly and automatically turned from a political-diplomatic debate into a moral-political-diplomatic debate about the moral nature and obligations of treaties. Specifically, the fundamental issue was reduced to this question: is the United States morally obliged to fulfill its treaty obligations with France?

That was the question America's first president, George Washington, asked Hamilton and Jefferson to answer. From that question "arose one of the most interesting and complex debates in American political history."

To answer this question, we must step back and ask a series of related or corollary questions. What is a treaty? Are treaties between nations contracts (we’ve already defined what a contract is in “Contracts and the Birth of a Free Society”), and, if so, what kind of contracts are they? If treaties are contracts, must they have identical constituent parts as do other contracts (e.g., property or commercial contracts), or are they a special kind of contract with different conditions and requirements? Who arbitrates treaties when they’re broken? And what were the precise terms of the two treaties signed by France and the United States in 1778 (see above)?
    To understand what a treaty is, we must define its essential characteristics and applications. Samuel Johnson’s 1773 'Dictionary of the English Language' defined a treaty as a “Negotiation; act of treating” and as “A compact of accommodation relating to public affairs.” Noah Webster’s 1828 'American Dictionary of the English Language' defined a treaty as “An agreement, league or contract between two or more nations or sovereigns, formally signed by commissioners properly authorised, and solemnly ratified by the several sovereigns or the supreme power of each state. Treaties are of various kinds, such as treaties for regulating commercial intercourse, treaties of alliance, offensive and defensive, treaties for hiring troops, treaties of peace, etc.”

These definitions encapsulate how treaties were understood in this age.

    By Webster’s definition, we see that treaties are contracts between sovereign nations. Treaties, like contracts, involve an exchange of promises between two or more parties to do or not do certain actions. The promise to do or not do something is a binding moral obligation, and to default on what one has promised is a dereliction of moral responsibility that causes a harm to the other contracting party.
    One major difference between treaties and contracts (at least up until the twentieth century) is that treaties, at least in the context of the eighteenth century, could not be enforced by a neutral third party. There was no international court system in the eighteenth century to adjudicate the violation of treaties. Hence treaties involved honour as the enforcement mechanism, but honour is a weak thread in questions of war and peace.
    Alexander Hamilton and Thomas Jefferson both viewed treaties as contracts, or at least a certain kind of contract. The main question for Hamilton and Jefferson came down to this: how could the United States remain neutral in the conflict between France and England and still fulfil its treaty obligations to France? More specifically, did the two Gallo-American treaties of 1778 require the United States to defend France’s West Indian possessions? ...

Both Jefferson and Hamilton supported American neutrality. Both Hamilton and Jefferson wanted the new United States to do the honourable thing, to discharge their agreed obligations. And both Jefferson and Hamilton understood that — beyond "the discussion of treaties, alliances, diplomacy, foreign affairs, war, and international law (i.e., the law of nations)" — what their debate was about was "a philosophic contest over the nature of moral obligation," and what those obligations amounted to in this context. In short:

What is America’s moral obligations to uphold it treaties with France? In other words, what is the debt owed by the United States to France?

At bottom, and most relevant to us in New Zealand in the here and now, the question is: what is the nature of a treaty, and what long-lasting obligations does it impose?

Hamilton viewed "contracts with special moral obligations, but he did think treaties between nations were a special kind of contract with their own unique qualities and characteristics and thus with their own unique moral obligations that were somewhat different from those of regular contracts." Jefferson largely agreed. Like Hamilton he 

1) believed that treaties are a species of contract with traits like and unlike contracts between individuals; 

2) viewed treaties as defined by, and grounded in, the sanctity of moral obligations; 

3) supported American neutrality; and 

4) thought that only dire necessity could justify suspending or even renouncing treaties.

By "dire necessity" was meant that only if inevitable destruction would be the outcome. Given the nature the French Revolution, whose violence was only grown and whose outcome was still uncertain, they both came to the conclusion (for differing reasons) that alliance with the revolutionary regime posed too many dangers at present to be prudent.

That said, Jefferson saw the treaties with France as being agreements with the French people, not with the king — "that treaties are made between nations, not between their governments. This meant that nations may change their government or even their form of government without impairing their treaty obligations."

By the moral law of nature, according to Jefferson, the obligations of one man to another in a state of nature are carried forward to the state of society where the aggregate obligations of one society to another mirror those between individuals in and out of society. [Jefferson] argued that treaties between nations carry the same moral obligations via the moral law of nature as do contracts between individuals. But he then admited that some contracts, either between individuals or nations, can be broken when 1) “performance . . . becomes impossible,” and 2) “performance becomes self-destructive to the party.” Non-performance in the former “is not immoral,” according to Jefferson, and the “law of self-preservation overrules the laws of obligations” in the latter. ... nations can and should be judges in their own cause in international affairs

There was a "right to self-liberation" from a  treaty, said Jefferson, but it was limited to just three cases:

First, a nation that absolves itself from a treaty must face a “danger” that is “great, inevitable and imminent.” ...
    Second, the right of self-release was limited solely to those clauses in a treaty that would bring “great & inevitable danger on us” but not from the treaty as a whole. ...
    Finally, a nation’s right to self-liberation from a treaty or the relevant parts comes with a moral obligation “to make compensation where the nature of the case admits & does not dispense with it.” Jefferson does not explain what constitutes “compensation” or how or by whom it would be determined, but he does think that a non-fulfilling nation is morally bound to pay some kind of compensation for not fulfilling its treaty obligation.

Hamilton however saw the treaties as being with the banished Bourbon regime, and should be considered therefore "as 'temporarily and provisionally suspended,' particularly if such treaties proved to be “disadvantageous or dangerous.” That the French people had a right to change their government was unarguable; but that right imposed no "right to involve other nations," not even those "with whom it may have had connections, absolutely and unconditionally." 

In such cases, the contracting party had a moral right, according to Hamilton, to “renounce” such treaties as incompatible with and detrimental to their original purposes. In sum, Hamilton argued, “Contracts between nations as between individuals, must lose their force where the considerations fail.”

The two men came to similar conclusions as to what to do, but for different reasons. 

If Hamilton’s strategy were to anticipate future dangers by suspending the treaties or certain articles therein, then Jefferson’s strategy was to delay as much as possible how specific articles of the treaties were to be applied in the present. Here, then, is the core difference between Hamilton and Jefferson: the former wanted to temporarily suspend America’s obligations, whereas the latter wanted to temporarily postpone their obligations.

Importantly, however, neither wanted to repudiate their obligations altogether. They understood there was an agreement, and its terms must be honoured — once action was clear, and not at the cost of their own destruction. As Thompson sums up Hamilton's position: "a treaty is not a suicide pact."

What is most important about the Hamilton-Jefferson debate is not what it tells us about their views on international affairs, diplomacy, foreign policy, or even treaties, but what it tells us about the Founders’ views on the moral status of contracts in a free society. Contracts are the moral ligament that holds a free society together.

* * * * 

* All quotes hereafter from from Thompson's post 'American Schism: The Hamilton-Jefferson Debate on the Moral Obligations of Treaties'