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- Sprache: Englisch
- Veröffentlichungsjahr: 2015
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THE WORKS OF ALEXANDER HAMILTON: VOLUME 5
Alexander Hamilton
FIREWORK PRESS
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TABLE OF CONTENTS
Introduction
The Works of Alexander Hamilton: Volume 5
FOREIGN RELATIONS (Continued)
cabinet opinion
cabinet opinion—hamilton and knox
washington to john jay, chief-justice, and james wilson, james iredell, and william patterson, associate-justices, of the supreme court of the united states
questions proposed to be submitted to the judges of the supreme court of the united states
washington to the heads of departments and the attorney-general
no jacobin
I.
II
III
IV
V
instructions to the collectors of the customs
cabinet opinion.—hamilton to washington
notes by hamilton, to frame letter of secretary of state to gouverneur morris, minister at paris (Cabinet Paper.)
cabinet opinion
hamilton to washington
hamilton to washington (Cabinet Paper.)
hamilton to washington (Cabinet Paper.)
Report.
americanus (From the American Daily Advertiser.)
I
II.
hamilton to washington (Cabinet Paper.)
hamilton to washington (Cabinet Paper.)
Points to be Considered in the Instructions to Mr. Jay, Envoy Extraordinary to Great Britain
On the Part of the British
On the Part of the United States
Treaty of Commerce
As Equivalents
hamilton to randolph
part of instructions to john jay
hamilton to jay (Cabinet Paper.)
treaty project
hamilton to washington (Cabinet Paper.)
hamilton to washington (Cabinet Paper.)
hamilton to randolph (Cabinet Paper.)
hamilton to randolph (Cabinet Paper.)
Remarks on Lord Grenville’s Project of a Commercial Treaty, made at the Request of E. Randolph, Esq., Secretary of State
hamilton to washington (Cabinet Paper.)
Remarks on the treaty of amity, commerce, and navigation, made between the United States and Great Britain
Supplementary Remarks
horatius
CAMILLUS
CAMILLUS (From the Argus.)
defence of mr. jay’s treaty
no. I
no. II
no. III
no. IV
no. V
no. VI
no. VII
no. VIII
no. IX
no. X
no. XI
no. XII
no. XIII
no. XIV
no. XV
no. XVI
no. XVII
no. XVIII
no. XIX
no. XX
no. XXI
no. XXII
no. XXIII1
The Works of Alexander Hamilton: Volume 5
By
Alexander Hamilton
The Works of Alexander Hamilton: Volume 5
Published by Firework Press
New York City, NY
First published circa 1804
Copyright © Firework Press, 2015
All rights reserved
Except in the United States of America, this book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser.
About Firework Press
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INTRODUCTION
UNFORTUNATELY, ONE OF THE BEST known aspects of Alexander Hamilton’s (1755-1804) life is the manner in which he died, being shot and killed in a famous duel with Aaron Burr in 1804. But Hamilton became one of the most instrumental Founding Fathers of the United States in that time, not only in helping draft and gain support for the U.S. Constitution but in also leading the Federalist party and building the institutions of the young federal government as Washington’s Secretary of Treasury.
One of the biggest battles was over the chartering of a national bank, a topic that seems trivial today given the size and scope of the federal government. At the founding, however, the Southern states and Thomas Jefferson’s Democratic Party were skeptical of the necessity of a national bank, while Hamilton’s Federalists insisted that it would help the nation pay off its debts and manage its finances. Eventually Hamilton won out, but the First U.S. Bank, located in Philadelphia, was nonetheless run by a private company, ensuring limits on government control.
This edition of Hamilton’s Works: Volume 5 includes his writings on Foreign Relations, including discussions about the French Revolution and international diplomacy with European powers
THE WORKS OF ALEXANDER HAMILTON: VOLUME 5
FOREIGN RELATIONS (CONTINUED)
CABINET OPINION
AT A MEETING HELD AT the State House of the City of Philadelphia, July 8, 1793,
Present:
The Secretary of State,
The Secretary of the Treasury,
The Secretary of War.
It appeared that a brigantine called the Little Sarah has been fitted out at the port of Philadelphia with fourteen cannon and all other equipments, indicating that she is intended (as a privateer) to cruise under the authority of France, and that she is now lying in the river Delaware at some place between this city and Mud Island; that a conversation has been had between the Secretary of State and the Minister Plenipotentiary of France, in which conversation the minister refused to give any explicit assurance that the brigantine would continue until the arrival of the President and his decision in the case, but made declarations respecting her not being ready to sail within the time of the expected return of the President, from which the Secretary of State infers, with confidence, that she will not sail till the President will have an opportunity of considering and determining the case; that in the course of the conversation the minister declared that the additional guns which had been taken in by the Little Sarah were French property, but the Governor of Pennsylvania has declared that he has good ground to believe that at least two of her cannon were purchased here of citizens of Philadelphia. The Governor of Pennsylvania asks advice what steps, under the circumstances, he shall pursue.
The Secretary of the Treasury and the Secretary of War are of opinion that it is expedient that immediate measures should be taken provisionally for establishing a battery on Mud Island, under cover of a party of militia, with discretion that if the brig Sarah should attempt to depart before the pleasure of the President shall be known concerning her, military coercion be employed to arrest and prevent her progress.
The Secretary of State dissents from this opinion.
Th. Jefferson.1
Information having also been received that part of the crew of the Sarah are citizens of the United States, as can be testified by Charles Biddle of this city, the above-mentioned heads of departments agree that this information shall be communicated to the attorney of the district, in order that, pursuant to his former instructions, he may take measures for apprehending and bringing them to trial.
CABINET OPINION—HAMILTON AND KNOX
REASONS FOR THE OPINION OF the Secretary of the Treasury, and the Secretary at War, respecting the Brigantine “Sarah”1
July 8, 1793.
I.—Because there can be no doubt, either upon principle or authority, that the permitting or suffering, or what is equivalent, the not taking effectual measures to prevent, when known, the fitting out of privateers in our ports by one of the belligerent powers to cruise against any of the others, is an unequivocal breach of neutrality.
II.—Because the President, in conformity with a unanimous opinion of the heads of the departments, and the Attorney-General, founded upon the above principle, has caused his disapprobation of the practice to be signified to the Ministers both of Great Britain and France, accompanied with an express assurance to the former, that
effectual measures would be taken to prevent a repetition of the practice
.
III.—Because consequently not to take such measures in the present instance would be to depart from the declaration of neutrality, and to contravene the positive assurance given to the Minister of Great Britain; an omission as dishonorable as it must be dangerous to the government, implying either a want of ability, or a want of consistency and good faith. And as it will indubitably furnish a just cause for complaint against the United States, so it is natural to expect that it may involve them in war. It becomes the more serious in consequence of the non-surrender of the prizes which were
brought into our ports by the privateers “Sans Culottes”
and
“Citizen Genet,”
fitted out at Charleston.
IV.—Because the fitting out of this privateer is a transaction involving on the part of the agents of France a gross outrage upon, and undisguised contempt of, the government of the United States. It is aggravated by the circumstances of having been done under the immediate eye of the government, after an explicit and serious communication of its disapprobation—and after an expectation given that no similar attempt would be repeated. The Secretary of State reported to the President as the result of a conversation with the French Minister, on the subject of the two
privateers
before mentioned, what was equivalent to an apology for having done it, and to at least a tacit promise to forbear a repetition. Yet it is still done, and is even attempted to be justified.
V.—Because it is impossible to interpret such conduct into any thing else than a regular plan to force the United States into the war. Its tendency to produce that effect cannot be misunderstood by the agents of France. The direct advantage of the measure to her is obviously too inconsiderable to induce the persisting in it contrary to the remonstrances of the government, if it were not with a view to the more important end just mentioned; a conduct the more exceptionable, because it is accompanied with the fallacious disavowal of an intention to engage us in the war.
VI.—Because there is every evidence of a regular system in the pursuit of that object, to endeavor to control the government itself by creating, if possible, a schism between it and the people, and enlisting them on the side of France in opposition to their own constitutional authorities. This is deducible not only from a great variety of collateral incidents, but from direct written and verbal declarations of the French Minister.The memorial lately presented by him to the Secretary of State, the most offensive paper perhaps that was ever offered by a foreign minister to a friendly power with which he resided, announces unequivocally the system which is alleged to exist.Besides the exorbitant pretensions which that paper advances, of a right in defiance of the declared sense of the government to fit out armed vessels from the ports of the United States, and even to enlist our citizens in their own territories in the service of France; to hold courts within their jurisdiction for the condemnation of prizes unsanctioned by compact, contrary to the rights of neutrality, contrary even to the spirit of the regulations of France for her own consulate establishment, besides the loose and unfounded charges of breach of treaty rudely urged;—that paper more than insinuates the imputation on the President of ill will to France under the instigation of foreign influence, of having gone beyond his duty and his authority by the decision of matters not within his province, and sufficiently implies an appeal from him to Congress, if not to the people, whose disposition is at least indelicately put in contrast with his. Language of this sort, if even better founded than it is in the present instance, can never be used by a diplomatic character without a culpable violation of decorum. He has nothing to do but with the constitutional organ of the government. In his official communication he ought never to look beyond him—nor can he do it without disrespect to the government and to the nation.The declaration of the Minister of France to Mr. Dallas, Secretary of the Commonwealth of Pennsylvania, as related by him to the Governor of that Commonwealth and to the Secretary of State, is a further confirmation of the same system. That declaration, among other exceptionable things, expressed, “That he, the French Minister, would appeal from the President to the people.”It would be a fatal blindness not to perceive the spirit which inspires such language, and ill-omened passiveness not to resolve to withstand it with energy.
VII.—Because to refuse an assurance that the privateer should remain in port, till the President could arrive to decide upon her situation, was an additional high-handed contempt of the government; which was in no shape palliated by the ambiguous intimations of a
probability
that she would not be ready to depart before his return,—intimations which, from experience in other cases, can in no degree be relied upon.
VIII.—Because not to act with decision under such circumstances will be to prostrate the government, to sacrifice the dignity and essential interests of the nation. Indecision in such a case must necessarily tend to destroy at home and abroad a due respect for the government, to weaken its arm, to embolden the enterprises of an intriguing and daring foreign agent, to encourage and multiply those who are disposed to adhere factiously to him, and alternately to put the country in a condition of being dictated to by that foreign agent, and at war with all the enemies of the nation he represents. It is a truth the best founded and of the last importance, that nothing is so dangerous to a government as to be wanting either in self-confidence or self-respect.
IX.—Because decision may even tend to preserve peace with France herself. If the enterprises of her Minister are not checked in their present stage, it may clearly be inferred from his character that they are likely to be carried to a length which will render a rupture between the two countries inevitable, should they not previously produce one with the powers who are opposed to France.
X.—Because the measure which is recommended, is but a consequence of the instruction given to the different governors on the 24th of May last, addressed to them in their military capacity, expressly to be executed by the agency of the militia, and it included necessarily the use of military coercion when that should be found requisite to the end to be accomplished. It is, therefore, not to adopt a new principle, but to second the execution of an order already given by the President, founded upon mature deliberation and the unanimous opinion of the heads of departments, with the Attorney-General. It is therefore due to the
known
and
declared
pleasure of the President. A Governor who could not have recourse to the advice now asked, would fail in his duty not to employ in a similar case the means recommended,
without further sanction
.The Governor of Pennsylvania might justifiably do so in the existing instance; but the case having been previously drawn into consultation between him and the heads of departments, he has thought fit to ask their advice, and in giving it, conformably with the true spirit of the President’s instruction,
they
would only faithfully execute the trust reposed in them by him.
XI.—Because the measure proposed is only provisional, and can have no other effect than to evince the determination of the government, unless the vessel attempts to depart contrary to the intimation of the Minister, as understood by the Secretary of State. In such an event the necessity will be attested by the occasion.
XII.—If there be delicacy on one side, there is still greater delicacy on the other. France would have justly nothing to complain of in reference to an act which was merely a vindication of our own sovereignty in our own territory, against a manifest, deliberate, and outrageous violation of it by her agent.
If she be at all reasonable or equitable, she will disavow the proceedings and the agent, and take no offence. An appeal to her justice and friendship ought for this purpose to follow a resistance to the encroachment. But if actual measures be not taken, the other powers will have just cause of complaint, not only upon principle, but upon the strength of positive assurance. If war is to be hazarded, ’t is certainly our duty to hazard it with that power which by injury and insult forces us to choose between opposite hazards, rather than with those powers who do not place us in so disagreeable a dilemma.
A proceeding like that proposed cannot colorably be considered by any nation as an act of hostility. If attempts are made in neutral ports to equip armed vessels without permission of the neutral sovereign, they are clandestine: if they are detected and suppressed, it is regarded, as a matter of course, a penalty of which the adventurers are to take the chance. It would be a disgrace to the sovereign to whom they belong, and an offence to the neutral nation, even to make it a subject of complaint.
To adopt as a rule of conduct, that, if we are to be involved in the war, it must be at any rate against the powers who are opposed to France, and that we ought rather to give them cause for attacking us, by suffering ourselves to be made an instrument of the hostilities of France, than to risk a quarrel with her by a vigorous opposition to her encroachments, would be a policy as unjust and profligate as it would be likely to prove pernicious and disgraceful.
A. Hamilton,
H. Knox.
WASHINGTON TO JOHN JAY, CHIEF-JUSTICE, AND JAMES WILSON, JAMES IREDELL, AND WILLIAM PATTERSON, ASSOCIATE-JUSTICES, OF THE SUPREME COURT OF THE UNITED STATES
Philadelphia,
July 23, 1793.
GENTLEMEN:
The circumstances, which had induced me to ask your counsel on certain legal questions interesting to the public, exist now as they did then; but I by no means press a decision whereon you wish the advice and participation of your absent brethren. Whenever, therefore, their presence shall enable you to give it with more satisfaction to yourselves, I shall accept it with pleasure.
With sentiments of high respect, I am, etc.
QUESTIONS PROPOSED TO BE SUBMITTED TO THE JUDGES OF THE SUPREME COURT OF THE UNITED STATES
Draft by Hamilton.
July, 1793.
I.—Do the treaties between the United States and France give to France or her citizens a right, when at war with a Power with whom the United States are at peace, to fit out originally in and from the ports of the United States, vessels armed for war, with or without commissions?
II.—If they give such a
right
, does it extend to all manner of armed vessels, or to particular kinds only? If the latter, to what kinds does it extend?
III.—Do they give to France or her citizens, in the case supposed, a right to refit; or arm anew, vessels which, before their coming within any port of the United States, were armed for war, with or without commissions?
IV.—If they give such a right, does it extend to all manner of armed vessels, or to particular kinds only? If the latter, to what kinds does it extend? Does it include an augmentation of force, or does it only extend to replacing the vessel
in statu quo?
V.—Does the 22d Article of the Treaty of Commerce, in the case supposed, extend to vessels armed for war, on account of the government of a Power at war with France, or to merchant armed vessels belonging to the subjects or citizens of that Power, (viz.:) of the description of those which by the English are called letter-of-marque ships—by the French “batiments armés en marchandise et en guerre”?
VI.—Do the treaties aforesaid prohibit the United States from permitting, in the case aforesaid, the armed vessels belonging to a Power at war with France, or to the citizens or subjects of such Power, to come within the ports of the United States, there to remain as long as they may think fit, except in the case of their coming in with prizes made of the subjects or property of France?
VII.—Do they prohibit the United States from permitting, in the case supposed, vessels armed, on account of the government of a Power at war with France, or vessels armed for merchandise and war, with or without commission, on account of the subjects or citizens of such Power, or any vessels other than those commonly called privateers, to sell freely whatsoever they may bring into the ports of the United States, and freely to purchase in and carry from the ports of the United States, goods, merchandise, and commodities, except as excepted in the last question.
VIII.—Do they oblige the United States to permit France, in the case supposed, to sell in their ports the prizes which she or her citizens may have made of any Power at war with her, or of the citizens or subjects of such Power; or exempt from the payment of the usual duties on ships and merchandise, the prizes so made, in the case of their being to be sold within the ports of the United States?
IX.—Do those treaties, particularly the Consular Convention, authorize France, as of right, to erect courts within the jurisdiction of the United States for the trial and condemnation of prizes made by armed vessels in her service?
X.—Do the laws and usages of nations authorize her, as of right, to erect such courts for such purposes?
XI.—Do the laws of neutrality, considered relatively to the treaties of the United States with foreign Powers, or independently of those treaties, permit the United States, in the case supposed, to allow to France or her citizens the privilege of fitting out originally in and from the ports of the United States, vessels armed and commissioned for war, either on account of the government or of private persons, or both?
XII.—Do those laws permit the United States to extend the like privilege to a Power at war with France?
XIII.—Do the laws of neutrality, considered as aforesaid, permit the United States, in the case supposed, to allow to France or her citizens the privilege of refitting or arming anew vessels which, before their coming within the United States, were armed and commissioned for war? May such privilege include an augmentation of the force of such vessels?
XIV.—Do those laws permit the United States to extend the like privilege to a Power at war with France?
XV.—Do those laws, in the case supposed, permit merchant vessels of either of the Powers at war, to arm in the ports of the United States, without being commissioned? May this privilege be rightfully refused?
XVI.—Does it make any difference, in point of principle, whether a vessel be armed for war, or the force of an armed vessel be augmented, in the ports of the United States, with means procured in the United States, or with means brought into them by the party who shall so arm or augment the force of such vessel? If the first be unlawful, is the second lawful?
XVII.—Do the laws of neutrality, considered as aforesaid, authorize the United States to permit to France, her subjects, or citizens, the sale within her ports of prizes made of the subjects or property of a Power at war with France, before they have been carried into some port of France and there condemned, refusing the like privilege to her enemy?
XVIII.—Do those laws authorize the United States to permit to France the erection of courts within their territory and jurisdiction, for the trial and condemnation of prizes—refusing that privilege to a Power at war with France?
XIX.—If any armed vessel of a Power at war with another with whom the United States are at peace, shall make prize of the subjects or property of its enemy within the territory or jurisdiction of the United States, have not the United States a right to cause restitution of such prize? Are they bound or not by the principles of neutrality so to do, if such prize shall be within their power?
XX.—To what distance, by the laws and usages of nations, may the United States exercise the right of prohibiting the hostilities of foreign Powers at war with each other within rivers, bays, and arms of the sea, and upon the sea along the coasts of the United States?
XXI.—Have vessels armed for war, under commission from a foreign Power, a right, without the consent of the United States, to engage within their jurisdiction seamen and soldiers, for the service of such vessels, being citizens of that Power, or of another foreign Power, or citizens of the United States?
XXII.—Is it lawful for the citizens of such Power, or citizens of the United States, so to engage, being within the jurisdiction of the United States?
1
WASHINGTON TO THE HEADS OF DEPARTMENTS AND THE ATTORNEY-GENERAL
Draft by Hamilton.
Philadelphia,
July 29, 1793.
GENTLEMEN:
It will not be amiss, I conceive, at the meeting you are about to have to-day, to consider the expediency of directing the custom-house officers to be attentive to the arming or equipping vessels, either for offensive or defensive war, in the several ports to which they belong, and make report thereof to the governor or some other proper officer.
Unless this or some other effectual mode is adopted to check this evil in the first stage of its growth, the Executive of the United States will be incessantly harassed with complaints on this head, and probably when it may be difficult to afford a remedy.
I am, etc.
NO JACOBIN
1
[From the Daily Advertiser.]
I.
August, 1793.
It is publicly rumored in this city that the minister of the French republic has threatened to appeal from the President of the United States to the people.
Various publications which have recently appeared in the papers, particularly that under the signature of “Juba,” in the National Gazette of the 10th instant, and that under the signature of “A Jacobin,” in the General Advertiser of Friday last, seem to have begun the appeal.
Several traits in the latter carry conjectures of the writer to the source of the threatened appeal. The idiom of it is evidently foreign, and it abounds in terms and phrases which are said by those who have access to him to be frequently in the mouth of the supposed author. That the idiom is foreign, will appear to a competent judge of the English language, from the structure of every sentence; but there are particular expressions which will prove it even to those who have no very accurate knowledge of it. Witness these extracts: “I cannot be convinced that a plan of this kind should be approved by Congress or the people of the United States,”—“through a desire of giving a proof of the loyalty and confidence which ought to exist between the agents of free nations.” The word “loyalty” in the English language is only used to denote fidelity to a prince, to a lover, or to a mistress. In the French it is a familiar expression of good faith, candor, sincere dealing, etc.
That it probably proceeds from the source of the threatened appeal, is to be inferred from the positive assertion of things which, if true, can only be known to the principal officers of the general government, and to the public agents of France. It is said that orders were given to the military to take possession of a French vessel without previous complaint, explanation, or communication with the agents of the French republic. Again, it is said, the minister of France caused the Grange1 to be returned upon a simple request of the American government. Declarations like these could only with propriety be made with so much peremptoriness by parties to the transaction.
Indeed, they seem intended to dismiss even the appearance of concealment. Let us now see in what manner the heavy charges of breach of treaty, which are brought against the executive of the general government, are supported.
The first is the detention of French vessels armed in the ports of the United States; which is said to be contrary to the 22d Article of the Treaty of Commerce between the United States and France.
The words of the French original upon which this construction is put, are as follows: “Il ne sera permis a aucun corsaire étranger non appartenant a quelque sujet de sa majesté tres chretienne ou a aucun citoyen des dits Etats Unis, lequel aura un commission de la part d’un prince ou d’une puissance en guerre avec l’une des deux nations, d’armer leurs vaissaux dans les ports de l’une des deux parties, ni d’y vendre les prizes qu’il aura faites, etc.”
The true translation of these words is: It shall not be permitted to any foreign privateer not belonging to subjects of His Most Christian Majesty or to citizens of the United States, which shall have commissions from a prince or power at war with one of the two nations, to arm their vessels in the ports of the one or the other of the two parties, nor there to sell the prizes which they shall have made, etc.
The plain and evident meaning of this translation is, that neither of the contracting parties shall be at liberty to permit the privateers of a power at war with the other, to fit or arm in its ports, or sell their prizes there, etc.
But this stipulation not to permit the privateers of powers at war with either of the parties, to fit or arm in the ports of the other, can by no rule of construction be turned into an agreement to permit the privateers of one party, when engaged in war with a third power with whom the other party is at peace, to fit or arm in the ports of the party at peace. This would be to convert a prohibition against doing one thing into a contract to do another.
Nor is there a syllable in the whole sentence that even implies such a contract. The attempt seems to be to deduce it from the words “not belonging to subjects of His Most Christian Majesty or to citizens of the United States,” as if these words were introduced by way of exception to the generality of the terms “foreign privateers,” to imply that the privateers of the subjects or citizens of the parties might be permitted to fit or arm in the ports of each other.
But these words “not belonging,” etc., must be taken merely as words of additional description, more clearly to express what is intended by the terms “foreign privateers.” Nor are they useless to this end. The sense of the terms “foreign privateers,” is not sufficiently precise or clear without them, for the privateers of either party would be foreign with respect to the other, but the intention being to designate privateers foreign to both parties. To render this intention unequivocal, the words “not belonging to the subjects of His Most Christian Majesty, or to the citizens of the United States,” are added, which fixes the true meaning. It is equivalent to having said, it shall not be permitted to foreign privateers, that is to say, privateers “not belonging,” etc. Unless, too, these words are understood in this manner, they make nonsense of the whole clause. To perceive this, it is only necessary to remark, that the foreign privateers intended to be prohibited from the privilege of arming, etc., are expressly those which have commissions from a power at war with one of the parties.
Then, if the words “not belonging,” etc., are to be used as words of exception, the natural reading of the clause would be as follows. “It shall not be permitted to foreign privateers which have commissions from a prince or state at war with one of the two nations, to fit or arm in the ports of the other, unless those privateers so commissioned belong to the subjects or citizens of the one or the other of the contracting parties.”
This exception would then operate to produce one of these two effects, both equally absurd. Either to authorize one of the contracting parties to permit privateers belonging to their own citizens, under commission from a power at war with the other, to fit or arm in its ports; thus allowing its subjects or citizens with impunity, and even countenance, to partake in the war against the other of the contracting parties; or to authorize one of the parties to permit privateers belonging to the subjects or citizens of the other, under commission from a power at war with such other party, to fit or arm in the ports of the first-mentioned party; thus enabling one party to give aid and countenance to the subjects of the other, when carrying on war against their own nation or sovereign, and consequently in the situation of rebels or pirates.
No sense more rational can be given to the words in question, when understood as words of exception, having regard to the due and natural connection and import of the terms which immediately precede and succeed. It follows that they cannot be understood as words of exception, but merely as words of description, and that the inference attempted to be drawn from them is forced and unwarrantable. Indeed, neither as words of exception, nor as words of description, do they give the least color to that inference.
If the printed copies of the treaty are accurate, the punctuation is a further illustration that the words “not belonging,” etc., are merely words of additional description. In the French original, they are not divided even by a comma from the words “corsaire étranger”—“foreign privateer,”—which they immediately follow, forming with them the first member of the sentence and connected with the next member of it by the pronoun “lequel,” or “which”: il ne sera permis a aucun corsaire étranger non appartenant a quelque sujet de sa majesté tres chretienne ou a un citoyen des dits Etats Unis, lequel etc.
The words in question cannot, without making the clause nonsense, be understood as words of exception in another view. The words “foreign privateers,” are naturally to be understood as privateers foreign to both parties. If the words “not belonging,” etc., are not taken as words of additional description, but of exception—that is to say, if they are to be understood as equivalent to saying “except privateers belonging to the subjects of and commissioned by one of the parties,” it leads to a contradiction of terms; it would be equivalent to saying, “it shall not be permitted to foreign privateers, not foreign,” etc., for privateers belonging to the subjects of and commissioned by one of the parties, would not be foreign to both the parties.
But if it were possible, consistently with the context, to give the words “non appartenant,” or “not belonging,” the effect of an exception favoring the construction which is contended for, it could not at any rate go further than to authorize vessels previously fitted out and commissioned in the ports of France, and coming into our ports in the capacity of privateers, there to fit or arm; it could not possibly extend to the original fitting out, arming, and commissioning of privateers by one party in the ports of another; the expressions of every part of the clause presuppose that the vessels intended are already privateers, having commissions, etc., when they come into the ports of the respective parties.
And it is well known that the detention complained of applies entirely to vessels which have been made privateers in our own port.
If any confirmation were requisite, in so plain a case, of the construction which appears to have been adopted by the Executive of the general government, it might be found in the regulations of France herself at the time our treaty with her was made. Those regulations show that it was the policy of France to restrict to her own ports the fitting out of privateers, with a variety of precautions to secure their good behavior, their accountability, and the rights and interests of all concerned; from which it is to be inferred that the clause in question was not intended to establish a right on either side to fit out privateers in the ports of the other, such a right being incompatible with the then existing policy of France.
Indeed, such a right would be incompatible with the preservation of peace by either party, when the other was engaged at war, for as it would make one auxiliary to the other in this vexatious and irritating mode of hostility to an indefinite extent, it would be stronger than the case of a definite succor stipulated on a defensive alliance, and could not fail to involve the party permitting it in the war.
It is not presumable that a mere incidental regulation in a treaty of commerce could have been intended to include a consequence so important; and it could only have been admitted upon the strength of terms explicit and unequivocal.
All advantages relating to war, which are stipulated in favor of one nation, so as to be incommunicable to another, include more or less of hazard. They are apt to produce irritations, which produce war. In every case of doubt, therefore, upon the construction of treaties, the rule is against the concession of such advantages. The principles of interpretation favor no thing that tends to put the peace of a nation in jeopardy. It is incumbent on a power at war, claiming of a neutral nation, on the ground of treaty, particular privileges of a military nature, to rest his pretensions upon clear and definite, not upon doubtful or obscure, expressions. When founded upon expressions of the latter kind, this claim is always to be rejected.
Hence, consequently, the pretension to fit or arm in our ports privateers antecedently commissioned in the ports of France, beyond the mere point of reparation, is inadmissible. It is not necessary to admit it for the sake of finding a useful object for the clause in question. That clause will have a very natural and a very useful application, when it is understood as merely a prohibition to prevent a power at war with the other to fit or arm privateers in the ports of the party at peace. For without it each party would have been at liberty to grant by treaty such a right to other powers, which is now prevented.
An argument against every construction of this kind, may be drawn from the seventeenth article of the treaty of commerce. This article grants affirmatively to the armed vessels of each party, certain privileges in the ports of the other. ’t is there we should naturally look for a privilege so important as the one claimed; not in an article, the general object of which plainly is to exclude other powers from privileges in the ports of the contracting parties. The omission of the privilege claimed in the clause where it would naturally be included, is a reason against admitting it upon a forced construction of a clause where it would not naturally be expected.
Upon the whole, there is no plausible ground for the pretension set up. The natural construction of the clause of the treaty which has been quoted, obviously excludes it, and the United States cannot, ex gratiâ, accede to it without departing from neutrality, and encountering the mischiefs of a war with which they have nothing to do.
The result is, that a pretension to fit out privateers in our ports against our will, is an insult to our understandings, and a glaring infraction of our rights.
The residue of the Jacobin’s charges will be hereafter examined.
NoJacobin.
II
1793.
The next charge of breach of treaty exhibited by the Jacobin against the Executive of the United States is, to use his own language, “the seizure of prizes made known to the agents of the French republic at the moment those prizes were held up for sale.” The orders given to the military to take possession of a French vessel, without previous complaint, explanation, or communication with the agents of the French republic, said to be contraventions of the 17th Article of the Treaty of Commerce, by which it is provided “that it shall be lawful for the ships of war and privateers of either party, freely to carry whithersoever they please, the ships and goods taken from their enemies, without being obliged to pay any duty to the officers of the admiralty or any other judges, and without those prizes entering into the ports of the one party or the other, being liable to be arrested or seized, nor can the officers of the places take cognizance of the validity of the said prizes, which may go out and be conducted freely and in all liberty to the places expressed in their commissions, which the commanders of the said vessels shall be obliged to show,” etc.
It is presumed, that the facts complained of are more particularly applicable to the case of the ship William, arrested in this port; though it is understood that the same proceedings, with some small difference of circumstances, took place in the case of another vessel in New York.
To judge of the propriety of the complaint in each case, it is necessary to attend to the following particulars. According to the general laws and usage of nations, the jurisdiction of every country extends a certain distance into the sea along the whole extent of its coast. What this distance is remains a matter of some uncertainty, though it is an agreed principle that it at least extends to the utmost range of cannon shot, that is, not less than four miles. But most nations claim and exercise jurisdiction to a greater extent. Three leagues, or nine miles, seem to accord with the most approved rule, and would appear from Martin, a French author, to be that adopted by France, though Valin, another French author, states it at only two leagues, or six miles.
Within this distance of the coast of a neutral country, all captures made by a power at war upon its enemy are illegal and null, on the principle of its being a violation of the jurisdiction and protection of the neutral country. This principle, founded on the most evident reason, is asserted by all writers, and practised upon by all nations.
Every nation has a right to prevent a violation of its jurisdiction, and consequently to prevent the making of captures within that jurisdiction. A right to redress if such captures be made is a necessary consequence. A neutral nation is bound to prevent injuries within its jurisdiction to a power with which it is at peace, by any other power. In other words, it owes fair guard and protection to the citizens and subjects of every power with which it is at peace. It is therefore bound to exert itself to prevent captures within the limits of its protection of the subjects or property of one power by another power, and if such capture happens to avail itself of its own right of redress, against the power making it, for the purpose of effecting a restitution of the person or thing captured.
This is too plain to be denied; but it is pretended that the redress of the injury is to be sought through the channel of negotiation only, and not by the immediate exertion of the authority of the neutral nation, to cause restitution to be made in the first instance, either by means of courts of justice, or by the use of the public force.
It may boldly be affirmed that this position is founded neither on principle nor the opinion of writers, nor on the practice of nations; not on principle, because it is unreasonable to suppose that a nation ought to postpone the opportunity of redressing itself and of doing justice to another, upon the uncertain issue of a negotiation of which it cannot foresee the success. When the object is out of its reach, the way of negotiation ought to be pursued; for the alternative then is to negotiate or go to war, and a due moderation requires that a preference should be given to the milder course; but if the object to which the injury relates is within its power, the most prudent as well as the most dignified and efficacious course is to embrace the opportunity of rectifying what has been done amiss, for this seems to terminate the affair, and avoid the controversies and heats too often incident to negotiation.
The position in question is not founded on the opinion of writers, for these establish a contrary doctrine—as may be seen in Bynkershoek’s Quœstiones Publici Furis, Book I., Chap. 8; Vatel, Book II., Sec. 84, 101, 102, and 289; 2 R. Inst., 587-589; Leoline Jenkins’s Life and Papers, vol. 1, xcv.; vol. 2, pages 727, 733, 751, 752, 754, 755, 780; Woodeson’s Lectures, page 443; Douglass’ Rep., 595; Lee on Captures, Cap. 9,—nor on the practice of nations, for this is in favor of summary prevention and redress, as may be seen by one example which those writers quote, and is within experience of individuals among ourselves. A neutral fortress never scruples to fire upon the vessels of any power which attempts to commit a hostility against another power within reach of its cannon, nor a neutral sovereign or magistrate to prevent or restore captures made within his jurisdiction.1
The foregoing observations will lead to a right judgment of the merits of the complaint which is made.
Each of the vessels in question is understood to have been taken within a distance short of the least of the two distances which has been mentioned as forming the rule observed by France, one of them seems less than three miles, the other within less than five miles.
It may, therefore, be affirmed that both these captures were made within the limits of the protection of the United States, and in violation of their jurisdiction. And it will follow, from the principles which have been maintained, that the United States have a right and are bound to cause restitution of those prizes.
To this conclusion is opposed that provision of the article which declares that the local officers cannot take cognizance of the validity of the prizes which are carried by one party into the harbors or ports of the other.
But there is no established rule of interpretation with regard either to laws or treaties than that general expressions shall never be so understood as to involve unreasonableness or absurdity. According to this rule the general expression “the local officers” (les officiers des lieux) “cannot take cognizance of the validity of the prizes,” must naturally be understood with reference to prizes made on the high seas without the jurisdiction of the party into whose harbors or ports they are brought, not with reference to prizes taken within the protection and jurisdiction of such party. The following qualification is from the nature of things implied in the general terms, to wit: provided the prizes have not been taken within the jurisdiction of the party in whose ports they shall be. An interpretation so extensive as to embrace prizes made within the jurisdiction of such party would lead to a consequence not less absurd than this. A vessel of the United States might be taken by a French privateer in the port of Philadelphia, and there would be no power to question the validity of the prize or enforce restitution. Such a consequence is too violent to be admissible, and a position which includes it refutes itself. It can never be imagined that any nation could mean to tie up her hands to such an extent.
If, then, prizes of vessels belonging to the United States or their citizens shall be excepted, it will follow that the clause cannot in this respect be taken in a literal sense; and if it is to be taken in a rational, not a literal, sense, it will admit the exceptions of all prizes taken within the jurisdiction or protection of the party within whose territories they are found, being at peace with the nation of whom or of whose citizens it is made, for a state owes protection not only to its own citizens but to the citizens of every other nation with which it is at peace, coming within its jurisdiction for commerce or any other lawful cause. Nor can it even be supposed, upon the strength of mere general expressions, that it has meant to exchange the right of affording protection and security by its own power and authority, for that of negotiating with another nation the reparation which may be due to a violation of its jurisdiction. So essential an alienation of jurisdiction could only be deduced from precise and specific as well as express terms.
Besides, such an inference is broader even than the letter of the clause. ’t is only to the “officiers des lieux,” the local officers, or officers of the harbors, ports, or places to which the prizes are brought, that the cognizance of their validity is forbidden; ’t is not to the general judiciary tribunals or general executive authority of the country that such cognizance is denied. The expressions, “officiers des lieux,” are not of a nature to comprehend them. They are, therefore, under no prohibition by the treaty, and consequently, as far as consists with the jus gentium, or law of nations, are at liberty to interpose.
And the rule of the law of nations is this, that a neutral nation shall not interpose to examine the validity of prizes made by a power at war, from its enemies, at any place except one which is within the jurisdiction of such neutral nation. It is of the essence of jurisdiction to redress all wrongs which happen within its sphere. Powers at war have no right in derogation from the peculiar jurisdiction of a neutral nation. That jurisdiction, therefore, is in the same force against them as against powers at peace. What would be a marine trespass in the one case, is so in the other. A capture within the protection or jurisdiction of a neutral state is not a lawful act of war, but a mere trespass, of course within the competency of the neutral state to redress it.1
It may be asked why, if this was the rule of the law of nations, there should have been a particular article of treaty concerning it? The answer is, 1st. That it is a common practice to introduce into treaties stipulations recognizing the rules of the law of nations, in order to avoid controversy about them, of which there are several examples in our treaties. 2d. That the article secures to France something more than the usage of several nations admits, namely, a right to continue in our ports an indefinite time, and the benefit of an exclusion of the privateers of her enemies, having made prizes of the subjects, people, or property of France, from the degree of asylum to which they would otherwise be entitled. These are sufficient objects for the article without giving to it an extension subversive of the just and necessary jurisdiction of the country.
It is clearly demonstrated by what has been said that the government of the United States has an undoubted right to interpose authority, not by mere negotiation, to effect the restoration of the ships in question to their original owners, and that the doing so, either by a direct exertion of the public force, or by means of judicial process, is consistent both with the laws of nations, and with the true meaning of our treaty with France. It therefore gives no handle to the complaint of breach of treaty. To what department of the government it most regularly belongs to effect the requisite redress—whether to the Executive or to the Judiciary, or to both indiscriminately, is not yet settled in this country, nor is it material to any foreign nation. It is a mere question between the departments of our own government. So long as nothing is done which is contrary to the laws of nations or to treaty, a foreign power can have no ground of complaint.
As to the point of previous application to the agents of the foreign nation concerned, this belongs to a mere question of civility, not of right; there being in every such case a direct responsibility on the part of the neutral nation to the power whose citizens or property may have been captured. The power making the capture cannot justly be dissatisfied if the surest method of performing its duty is adopted by the neutral nation. This is to take the prize in the first instance into custody, till a fair and full examination can be had into the fact with regard to the place of capture, as was done in the instances in question.
This course, too, would naturally obtain till some arrangement should have been concerted between the government and the agents of the powers at war, and is the only one which can be observed in places where there are no such agents. And it would seem, from what took place in the case of the William, immediately after her seizure, that such an arrangement had been subsequently agreed upon; which is a proof that the course pursued was not the effect of unkindly disposition. But if there had been a disposition to proceed with strictness and rigor, it will be shown in the sequel that it was fully warranted by the very disrespectful treatment we have experienced from the agents of France, who have acted towards us from the beginning more like a dependent colony than an independent nation,—a state of degradation, to which I trust that the freedom of the American mind will never deign to submit.
NoJacobin.
III
1793.
Another accusation against the Executive of the United States preferred by the Jacobin, is derived from this circumstance: that while by the treaty between the United States and France the goods of her enemies on board our ships are exempt from capture, the goods of France on board our ships are subject to the depredations of her enemies, without any steps being taken by the Executive to cause French property to be returned, and to prevent similar hardships being in future imposed.
This has, if possible, still less color than any of the others.
By the general law of nations as laid down by writers, and practised upon by nations, previous to the late war between the United States and Great Britain, this rule was clearly and fully established.
That the goods of an enemy in the ships of a friend (that is, of a neutral power) are lawful prizes, and that the goods of a friend in the ships of an enemy (those called contraband excepted) are not lawful prizes. This rule is founded upon the principle that one enemy may lawfully take the goods of another wheresoever he finds them, except within the jurisdiction or dominion of a neutral state. Of course he may take them upon the high seas, where no nation can have jurisdiction or dominion. Vatel, Book III., S. 115, 116; Bynkershoek, Quœs. Fur. Pub., Lib. I., Cap. 13, 14.
It necessarily follows that French property taken by the enemies of France in American vessels is by the law of nations lawful prize, and that American property (not of the contraband kind) taken by Frenchmen in the ships of their enemies is not according to the same law lawful prize. To the forming a right judgment, then, on this part of the Jacobin’s charges, and to determine whether France is not benefited rather than injured by the alterations which have taken place, the following observations may perhaps be useful.
During the war between the United States and Great Britain, certain powers who associated under the denomination of the armed neutrality, asserted a rule the reverse of that which had before prevailed and which has been stated. But this association, made with a view to the then existing war, terminated with it. The United States never acceded to that association. They contented themselves with introducing its principle into their treaties with such powers with whom they formed treaties. Accordingly, it is to be found in our treaties with France, Holland, Sweden, and Prussia.
Great Britain, on her part, has never acceded to the new principle as a general rule; and there are other powers of Europe who did not originally unite in the attempt to introduce it, and who are not known to have since done any act amounting to an adoption of it.
An established rule of the law of nations can only be altered by agreements between all the civilized powers, or a new usage generally adopted and sanctioned by time.
Neither having happened in the present case, the old principle must be considered as still forming the basis of the general law of nations, liable only to the exceptions resulting from particular treaties.
With France, Holland, Sweden, and Prussia, four of the belligerent parties, we have treaties containing the new principle; but with Russia, England, Spain, Portugal, Austria, Savoy, we have no such treaties. Against the former powers, therefore, we have a right to claim the new principle, as they would against us, were we in a state of war and they at peace. Between us and the latter powers the old rule must govern until a departure from it can be regulated by mutual consent.
As we cannot of right assert the new principle against those powers with whom we have not established it by treaty, so neither can we even in prudence or good policy insist upon it, unless we are prepared to support it by arms.
There is not a doubt that all the powers who are at liberty to pursue the old rule will do it. In a war of opinion and passion like the present, concessions to ill-founded or doubtful pretensions are not to be expected. Nor are the United States in a condition to attempt to enforce such claims.
But it seems that the not having hitherto manifested a disposition toward this species of knighterrantry, is an injury and offence to France. The Jacobin deems it a breach of our treaty with her, that we do not quarrel with other nations for an object which we can claim of them neither by the law of nations nor by treaty.
