Gazette Of The United States And Daily Evening Advertiser

in this case is sufficient to convey the right contended for.

To such an allegation the following objections occur.

I. That a construction by implication is never to be received, but where such construction is necessary and unavoidable, or the meaning of the parties can be collected either from the context or concurring circumstances. If such a construction was admitted upon any other principle, no man in any contract could be safe, unless he excluded every possible implication by direct negative expressions, a thing impossible to be practised, and highly irrational to be required.

2. There is not the least necessity for such a construction, the meaning being very sensible and complete without it. Was it not important to stipulate for the exclusion of an enemy of either from the ports of the other, without at the same time agreeing to permit either of the contracting parties to arm in the other's ports? Do not the two cases stand on a very different footing, and have we not a right to say, that as the one is stipulated for, and the other not, the former must be granted, but the latter may be refused? The article being silent on the subject is easily to be accounted for, an express grant of the right would have imminently hazarded the peace of either country in case the other was engaged in a war in which they had no common concern. An express negation of it would very idly have excluded voluntary favours altogether in the power of either party to grant or to refuse, and would have been a stipulation (the first perhaps of the kind) for the benefit of other countries, without the least possible utility to either of the contracting parties. I might add, if the same provision was not to be found in other treaties where the circumstances were different, that the situation of the two countries at the time naturally dictated the silence observed upon this subject. The treaty of commerce was signed on the same day with the treaty of alliance. The former was permanent; the latter as to its principal object temporary. While the war subsisted, in which both parties were fully engaged on one side, the ports of either would of course be open to the vessels of war and privateers of the other. When peace took place, and the principal object of the alliance was thereby obtained, it became of moment to both that neither should be endangered, without a new engagement, by hostilities which the subsisting one had not contemplated. The case therefore was properly left at large to the discussion of either party, as future contingencies and the honour and interest of their respective countries might require.

3. There not only is nothing in the context or any concurrent circumstances requiring the construction contended for, but there are very material circumstances to evince that such could not have been the intention of the parties. I might instance its inconsistency with the famous family compact entered into between France and Spain and the king of the Two Sicilies (a treaty universally known long before our connection with France), but as that stands on peculiar grounds of its own I choose to confine myself to some striking circumstances of inconsistency, where the cases are exactly parallel, in relation to the respective commercial connexions, of Great Britain (before the present war), and the United States with France. At the time of the signature of our treaties with France, a commercial treaty between Great Britain and France was in full force, containing substantially, if not in the very same words, an article like that of the 22d in ours. The treaty (if I recollect right, or I have not the book by me, tho' I am certain of the fact in substance, because I have compared the treaties) was the commercial treaty of Utrecht of 1712-13, renewed as to this point from time to time, and finally by the treaty of Paris, of 1763. In the commercial treaty between Great Britain and France in 1786 there is also an article to the very same import. It is therefore apparent, in case the construction which was claimed against us be right, that under the joint operation of either of the treaties between France and Great Britain, and that between France and the United States, if we had been at war with Great Britain and France neutral, France would have been bound by her treaty with Great Britain to admit her privateers to arm & exclude ours; by her treaties with us, to admit ours, and exclude theirs. A consequence so absurd or so iniquitous we usually have no right to fix on any engagement, without the least colour of evidence; and most ungrateful as well as weak should we be to attempt it in regard to a treaty, which we have uniformly acknowledged and sincerely believe was conducted, together with that which accompanied it, on the part of the French government towards us with singular magnanimity and candour, and on the part of our own with extraordinary ability, vigilance, and precaution. It is highly probable, that the American negociators who signed, and the Congress of the United States who ratified the treaty, were well acquainted with the contents of the commercial treaty of Utrecht, which was executed so many years before, and I doubt not had been repeatedly published, with its several confirmations; and it is certain that Great Britain when she executed the treaty in 1786 well knew all the particulars of ours of 1778, a complete copy of it having been published in England (as I have lately had an opportunity to know) soon after its execution. She therefore could not have been deceived, if we were, had there been any real perfidy in the case, a supposition which unsupported as it is by either evidence or probability we reject with disdain.

Objections like these would, in my opinion, be sufficient to destroy any construction, even if the words were doubtful, but in the face of such objections to