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FOREIGN RELATIONS - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 4 
The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 4.
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speech on the treaty of paris1
Wednesday, March 19, 1783.
Mr. hamilton urged the propriety of proceeding with coolness and circumspection. He thought it proper, in order to form a right judgment of the conduct of our ministers, that the views of the French and British courts should be examined. He admitted it as not improbable, that it had been the policy of France to procrastinate the definite acknowledgment of our independence on the part of Great Britain, in order to keep us more knit to herself, and until her own interests could be negotiated. The arguments, however, urged by our ministers on this subject, although strong, were not conclusive, as it was not certain that this policy, and not a desire of excluding obstacles to peace, had produced the opposition of the French court to our demands. Caution and vigilance, he thought, were justified by the appearance, and that alone. But compare this policy with that of Great Britain; survey the past cruelty and present duplicity of her councils; behold her watching every occasion and trying every project for dissolving the honorable ties which bind the United States to their ally, and then say on which side our resentments and jealousies ought to lie.
With respect to the instructions submitting our ministers to the advice of France, he had disapproved it uniformly since it had come to his knowledge, but he had always judged it improper to repeal it. He disapproved highly of the conduct of our ministers in not showing the preliminary articles to our ally before they signed them, and still more so of their agreeing to the separate article. This conduct gave an advantage to the enemy, which they would not fail to improve for the purpose of inspiring France with indignation and distrust of the United States. He did not apprehend (with Mr. Mercer) any danger of a coalition between France and Great Britain against America, but foresaw the destruction of mutual confidence between France and the United States which would be likely to ensue, and the danger which would result from it in case the war should be continued. He observed that Spain was an unwise nation, her policy narrow and jealous, her king old, her court divided, and the heir apparent notoriously attached to Great Britain. From these circumstances he inferred an apprehension that when Spain should come to know the part taken by America with respect to her, a separate treaty of peace might be resorted to. He thought a middle course best with respect to our ministers; that they ought to be commended in general, but that the communication of the separate article ought to take place. He observed that our ministers were divided as to the policy of the court of France, but that they were all agreed in the necessity of being on the watch against Great Britain. He apprehended that if the ministers were to be recalled or reprehended that they would be disgusted, and head and foment parties in this country. He observed, particularly with respect to Mr. Jay, that, although he was a man of profound sagacity and pure integrity, yet he was of a suspicious temper, and that this trait might explain the extraordinary jealousies which he professed. He finally proposed that the ministers should be commended, and the separate article communicated. This motion was seconded by Mr. Osgood, as compared, however, with the proposition of the Secretary for Foreign Affairs, and so far only as to be referred to a committee.
Monday, March 24th.1
Mr. Hamilton said that whilst he despised the man who would enslave himself to the policy even of our friends, he could not but lament the overweening readiness which appeared in many to suspect every thing on that side, and to throw themselves into the bosom of our enemies. He urged the necessity of vindicating our public honor by renouncing that concealment to which it was the wish of so many to make us parties.2
LETTERS FROM PHOCION1
To the Considerate Citizens of New York, on the Politics of the Times, in Consequence of the Peace
While not only every personal artifice is employed by a few heated and inconsiderate spirits, to practise upon the passions of the people, but the public papers are made the channel of the most inflammatory and pernicious doctrines, tending to the subversion of all private security and genuine liberty, it would be culpable in those who understand and value the true interests of the community to be silent spectators. It is, however, a common observation, that men, bent upon mischief, are more active in the pursuit of their object than those who aim at doing good. Hence it is, in the present moment, we see the most industrious efforts made to violate the Constitution of this State, to trample upon the rights of the subject, and to chicane or infringe the most solemn obligations of treaty; while dispassionate and upright men almost totally neglect the means of counteracting these dangerous attempts. A sense of duty alone calls forth the observations, which will be submitted to the good sense of the people, in this paper, from one who has more inclination than leisure to serve them; and who has had too deep a share in the common exertions in this Revolution, to be willing to see its fruits blasted by the violence of rash or unprincipled men, without, at least, protesting against their designs.
The persons alluded to pretend to appeal to the spirit of Whigism; while they endeavor to put in motion all the furious and dark passions of the human mind. The spirit of Whigism is generous, humane, beneficent, and just. These men inculcate revenge, cruelty, persecution, and perfidy. The spirit of Whigism cherishes legal liberty, holds the rights of every individual sacred, condemns or punishes no man without regular trial and conviction of some crime declared by antecedent laws; reprobates equally the punishment of the citizen by arbitrary acts of legislation, as by the lawless combinations of unauthorized individuals; while these men are advocates for expelling a large number of their fellow-citizens unheard, untried; or, if they cannot effect this, are for disfranchising them, in the face of the Constitution, without the judgment of their peers, and contrary to the law of the land.
The thirteenth article of the Constitution declares, “that no member of the State shall be disfranchised, or defrauded of any of the rights or privileges sacred to the subjects of this State by the Constitution, unless by the law of the land or the judgment of his peers.” If we inquire what is meant by the law of the land, the best commentators will tell us, that it means due process of law; that is by indictment or presentment of good and lawful men,1 and trial and conviction in consequence.
It is true, that in England, on extraordinary occasions, attainders for high treason, by act of Parliament, have been practised; but many of the ablest advocates for civil liberty have condemned this practice; and it has commonly been exercised with great caution upon individuals only by name, never against general descriptions of men. The sense of our Constitution on this practice, we may gather from the forty-first article, where all attainders, other than for crimes committed during the late war, are forbidden.
If there had been no treaty in the way, the Legislature might, by name, have attainted particular persons of high treason for crimes committed during the war; but, independent of the treaty, it could not, and cannot, without tyranny, disfranchise or punish whole classes of citizens by general descriptions, without trial and conviction of offences known by laws previously established, declaring the offence and prescribing the penalty.
This is a dictate of natural justice, and a fundamental principle of law and liberty.
Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions, by letting into the government, principles and precedents which afterwards prove fatal to themselves. Of this kind is the doctrine of disqualification, disfranchisement, and banishment, by acts of Legislature. The dangerous consequences of this power are manifest. If the Legislature can disfranchise any number of citizens at pleasure, by general descriptions, it may soon confine all the votes to a small number of partisans, and establish an aristocracy or an oligarchy. If it may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction. The name of liberty applied to such a government would be a mockery of common sense.
The English Whigs, after the Revolution, from an overweening dread of popery and the Pretender, from triennial, voted the Parliament septennial. They have been trying, ever since, to undo this false step in vain, and repenting the effects of their folly in the over-grown power of the new family. Some imprudent Whigs among us, from resentment to those who have taken the opposite side (and many of them from worse motives), would corrupt the principles of our government, and furnish precedents for future usurpations on the rights of the community.
Let the people beware of such counsellors. However a few designing men may rise in consequence, and advance their private interests by such expedients, the people, at large, are sure to be the losers, in the event, whenever they suffer a departure from the rules of general and equal justice, or from the true principles of universal liberty.
These men not only overleap the barriers of the Constitution without remorse, but they advise us to become the scorn of nations, by violating the solemn engagements of the United States.
They endeavor to mould the treaty with Great Britain into such forms as pleases them, and to make it mean any thing or nothing, as suits their views. They tell us, that all the stipulations, with respect to the Tories, are merely that Congress will recommend, and the States may comply or not, as they please.
But let any man of sense and candor read the treaty, and it will speak for itself. The fifth article is indeed recommendatory; but the sixth is as positive as words can make it. “There shall be no future confiscations made, nor prosecutions commenced against any person or persons, for or by reason of the part which he or they may have taken in the present war; and no person shall, on that account, suffer any future loss or damage, either in his person, liberty, or property.”
As to the restoration of confiscated property, which is the subject of the fifth article, the States may restore or not, as they think proper, because Congress engage only to recommend; but there is not a word about recommendation in the sixth article.
Quotations are made from the debates in Parliament, to prove that the whole is understood as recommendatory; but the expressions in those quotations turn altogether upon those persons who have been actually proscribed, and their property confiscated; they have no relation to those who come under the sixth article, or who might be the objects of future prosecution or punishment. And to this it may be added, that it is absurd and inadmissible in fair reasoning, to combat the plain, authentic language of solemn treaty by loose recitals of debates in newspapers.
The sound and ingenious construction of the two articles, taken collectively, is this: That where the property of any persons, other than those who have been in arms against the United States, had been actually confiscated, and themselves proscribed, then Congress are to recommend a restoration of estates, rights, and properties; and, with respect to those who had been in arms, they are to recommend permission for them to remain a twelvemonth in the country, to solicit a like restoration; but with respect to all those who were not in this situation, and who had not already been the objects of confiscation and banishment, they were to be absolutely secured from all future injury, to person, liberty, or property.
To say that this exemption from positive injury, does not imply a right to live among us as citizens, is a pitiful sophistry; it is to say that the banishment of a person from his country, connections, and resources (one of the greatest punishments that can befall a man), is no punishment at all.
The meaning of the word liberty has been contested. Its true sense must be, the enjoyment of the common privileges of subjects under the same government. There is no middle line of just construction between this sense and a mere exemption from personal imprisonment! If the last were adopted, the stipulation would become nugatory; and, by depriving those who are the subjects of it, of the protection of government, it would amount to a virtual confiscation and banishment; for they could not have the benefit of the laws against those who should be aggressors.
Should it be said, that they may receive protection without being admitted to a full enjoyment of the privileges of citizens; this must be either matter of right under the treaty, or matter of grace in the government. If the latter, the government may refuse it; and then the objection presents itself, that the treaty would, by this construction, be virtually defeated; if matter of right, then it follows that more is intended by the word liberty than a mere exemption from imprisonment; and where shall the line be drawn? not a capricious and arbitrary line, but one warranted by rational and legal construction?
To say that, by espousing the cause of Great Britain, they became aliens, and that it will satisfy the treaty to allow them the same protection to which aliens are entitled, is to admit that subjects may, at pleasure, renounce their allegiance to the State of which they are members, and devote themselves to a foreign jurisdiction; a principle contrary to law and subversive of government. But even this will not satisfy the treaty; for aliens cannot hold real property under our government; and if they are aliens, all their real estates belong to the public. This will be, to all intents and purposes, a confiscation of property. But this is not all. How does it appear that the persons who are thus to be stripped of their citizenship, have been guilty of such an adherence to the enemy, as, in legal contemplation, amounts to a crime? Their merely remaining in their possessions, under the power of the conqueror, does not imply this, but is excepted by the laws and customs of all civilized nations. To adjudge them culpable, they must be first tried and convicted; and this the treaty forbids. These are the difficulties involved, by recurring to subtle and evasive, instead of simple and candid, construction, which will teach us, that the stipulations in the treaty amount to an amnesty and act of oblivion.
There is a very simple and conclusive point of view in which this subject may be placed. No citizen can be deprived of any right which the citizens in general are entitled to, unless forfeited by some offence. It has been seen that the regular and constitutional mode of ascertaining whether this forfeiture has been incurred, is by legal process, trial, and conviction. This ex vi termini supposes prosecution. Now, consistent with the treaty, there can be no future prosecution for any thing done on account of the war. Can we then do, by act of Legislature, what the treaty disables us from doing by due course of law? This would be to imitate the Roman general, who, having promised Antiochus to restore half his vessels, caused them to be sawed in two before their delivery; or the PlatÆans, who, having promised the Thebans to restore their prisoners, had them first put to death, and returned them dead.
Such fraudulent subterfuges are justly considered more odious than an open and avowed violation of treaty.
When these posture-masters in logic are driven from this first ground of the meaning of the treaty, they are forced to that of attacking the right of Congress to make such a stipulation, and arraigning the impudence of Great Britain in attempting to make terms for our own subjects. But here, as everywhere else, they are only successful in betraying their narrowness and ignorance. Does not the act of Confederation place the exclusive right of making war and peace in the United States in Congress? Have they not the sole power of making treaties with foreign nations? Are not these among the first rights of sovereignty? And does not the delegation of them to the general Confederacy so far abridge the sovereignty of each particular State? Would not a different doctrine involve the contradiction of imperium in imperio? What reasonable limits can be assigned to these prerogatives of the Union, other than the general safety and the fundamentals of the Constitution? Can it be said, that a treaty for arresting the future operations of positive acts of Legislature, and which has indeed no other effect than that of a pardon for past offences committed against these acts, is an attack upon the fundamentals of the State Constitutions? Can it be denied that the peace which was made, taken collectively, was manifestly for the general good—that it was even favorable to the solid interests of this country, beyond the expectation of the most sanguine? If this cannot be denied—and none can deny it who know either the value of the objects gained by the treaty, or the necessity these States were under at the time of making peace—it follows, that Congress and their ministers acted wisely in making the treaty which has been made; and it follows from this, that these States are bound by it, and ought religiously to observe it.
The uti possidetis, each party to hold what it possesses, is the point from which nations set out in framing a treaty of peace. If one side gives up a part of its acquisitions, the other side renders an equivalent in some other way. What is the equivalent given to Great Britain for all the important concessions she has made? She has surrendered the capital of this State and its large dependencies. She is to surrender our immensely valuable posts on the frontier; and to yield to us a vast tract of western territory, with one half of the lakes, by which we shall command almost the whole fur trade. She renounces to us her claim to the navigation of the Mississippi, and admits us to share in the fisheries, even on better terms than we formerly enjoyed it. As she was in possession, by right of war, of all these objects, whatever may have been our original pretensions to them, they are, by the laws of nations, to be considered as so much given up on her part. And what do we give in return? We stipulate—that there shall be no future injury to her adherents among us. How insignificant the equivalent in comparison with the acquisition! A man of sense would be ashamed to compare them; a man of honesty, not intoxicated with passion, would blush to lisp a question of the obligation to observe the stipulation on our part.
If it be said that Great Britain has only restored to us what she had unjustly taken from us, and that therefore we are not bound to make compensation; this admits of several answers: Firstly—That the fact is not true; for she has ceded to us a large tract of country to which we had even no plausible claim. Secondly—That however the principle of the objection might have been proper, to prevent our promising an equivalent, it comes too late after the promise has been made. Thirdly—That as to the external effects of war, the voluntary law of nations knows no distinction between the justice or injustice of the quarrel, but in the treaty of peace puts the contracting parties upon an equal footing; which is a necessary consequence of the independence of the nations; for, as they acknowledge no common judge, if, in concluding peace, both parties were not to stand upon the same ground of right, there never could be an adjustment of differences, or an end of war. This is a settled principle.
Let us examine the pretext upon which it is disputed. Congress, say our political jugglers, have no right to meddle with our internal police. They would be puzzled to tell what they mean by the expression. The truth is, it has no definite meaning; for it is impossible for Congress to do a single act which will not, directly or indirectly, affect the internal police of every State. When, in order to procure privileges of commerce to the citizens of these States, in foreign countries, they stipulate a reciprocity of privileges here, does not such an admission of the subjects of foreign countries to certain rights within these States, operate immediately upon their internal police? And were this not done, would not the power of making commercial treaties, vested in Congress, become a mere nullity? In short, if nothing was to be done by Congress that would affect our internal police, in the large sense in which it has been taken, would not all the powers of the Confederation be annihilated, and the Union dissolved?
But, say they again, such a thing was never heard of, as an indemnity for traitorous subjects stipulated in a treaty of peace. History will inform them that it is a stipulation often made. Two examples shall be cited: The Treaty of Munster, which put an end to the differences between Spain and the United Provinces, after the revolution of those Provinces; the treaty concluded, in seventeen hundred and thirty-eight, between the Empire, France, Spain, Poland, and several other Powers, called the Christian Peace. The war which preceded this treaty was one of the most complicated in which Europe had been engaged: the succession to the Spanish monarchy, and the right to the throne of Poland, had been included in it; Stanislaus having been obliged to abdicate the crown. Different parts of the nations concerned had taken opposite sides. Many of the German princes had been in arms against the Empire, to which they owed obedience. This treaty not only mutually stipulates indemnity to the subjects of the respective Powers, but even restitution of property and offices. The Emperor, who contracted in behalf of the Empire, has much less extensive powers, as head of the Empire, than Congress, as representative of the United States.
But let it be admitted that Congress had no right to enter into this article; do not equity and prudence strongly urge the several States to comply with it? We have, in part, enjoyed the benefit of the treaty; in consequence of which, we, of this State, are now in possession of our capital; and this implies an obligation in conscience, to perform what is to be performed on our part. But there is a consideration which will, perhaps, have more force with men who seem to be superior to conscientious obligations: it is that the British are still in possession of our frontier posts, which they may keep in spite of us; and that they may essentially exclude us from the fisheries, if they are so disposed. Breach of treaty on our part will be a just ground for breaking it on theirs. The treaty must stand or fall together. The wilful breach of a single article annuls the whole.1 Congress are appointed by the Constitution, to manage our foreign concerns. The nations with whom they contract are to suppose they understand their own powers, and will not exceed them. If they do it in any instance, and we think it proper to disavow the act, it will be no apology with those with whom they contract, that they had exceeded their authority. One side cannot be bound, unless the obligation is reciprocal.
Suppose, then, Great Britain should be induced to refuse a further compliance with the treaty, in consequence of a breach of it on our part; what situation should we be in? Can we renew the war to compel a compliance? We know, and all the world knows, it is out of our power. Will those who have heretofore assisted us take our part? Their affairs require peace as well as ours; and they will not think themselves bound to undertake an unjust war, to regain to us rights which we have forfeited by a childish levity, and a wanton contempt of public faith.
We should then have sacrificed important interests to the little, vindictive, selfish, mean passions of a few. To say nothing of the loss of territory, of the disadvantage to the whole commerce of the Union, by obstructions in the fisheries, this State would lose an annual profit of more than fifty thousand pounds sterling from the fur trade.
But not to insist on possible inconveniences, there is a certain evil which attends our intemperance: a loss of character in Europe. Our ministers write, that our conduct, hitherto, in this respect, has done us infinite injury, and has exhibited us in the light of a people destitute of government, on whose engagements of course no dependence can be placed.
The men who are at the head of the party which contends for disqualification and expulsion, endeavor to enlist a number of people on their side by holding out motives of private advantage to them. To the trader they say: “You will be overborne by the large capitals of the Tory merchants”; to the mechanic: “Your business will be less profitable, your wages less considerable, by the interference of Tory workmen.” A man, the least acquainted with trade, will indeed laugh at such suggestions. He will know that every merchant, or trader, has an interest in the aggregate mass of capital, or stock in trade; that what he himself wants in capital, he must make up in credit; that unless there are others who possess large capitals, this credit cannot be had; and that, in the diminution of the general capital of the State, commerce will decline, and his own prospects of profit will diminish.
These arguments, if they were understood, would be conclusive with the mechanic: “There is already employment enough for all the workmen in the city, and wages are sufficiently high. If you could raise them by expelling those who remained in the city, and whom you consider as rivals, the extravagant price of wages would have two effects; it would draw persons to settle here, not only from other parts of this State, but from the neighboring States. Those classes of the community who are to employ you, will make a great many shifts rather than pay the exorbitant prices you demand; a man will wear his old clothes so much longer, before he gets a new suit; he will buy imported shoes cheap rather than those made here at so dear a rate; the owner of a house will defer the repairs as long as possible; he will only have those which are absolutely necessary made; he will not attend to elegant improvement: and the like will happen in other branches. These circumstances will give less employment, and in a very little time bring back your wages to what they now are, and even sink them lower. But this is not all. You are not required merely to expel your rival mechanics, but you must drive away the rich merchants and others who are called Tories, to please your leaders, who will persuade you they are dangerous to your liberty (though, indeed, they only mean their own consequence). By this conduct you will drive away the principal part of those who have the means of becoming large undertakers. The carpenters and masons, in particular, must be content with patching up the houses already built, and building little huts upon the vacant lots, instead of having profitable and durable employment in erecting large and elegant edifices.”
There is a certain proportion, or level, in all the departments of industry. It is folly to think to raise any of them, and keep them long above their natural height. By attempting to do it, the economy of the political machine is disturbed, and till things return to their proper state, the society at large suffers. The only object of concern with an industrious artisan, as such, ought to be, that there may be plenty of money in the community, and a brisk commerce to give it circulation and activity. All attempts at profit, through the medium of monopoly, or violence, will be as fallacious as they are culpable.
But, say some, to suffer these wealthy disaffected men to remain among us will be dangerous to our liberties. Enemies to our government, they will be always endeavoring to undermine it, and bring us back to the subjection of Great Britain. The safest reliance of every government is on men’s interests. This is a principle of human nature, on which all political speculation, to be just, must be founded. Make it the interest of those citizens who, during the Revolution, were opposed to us, to be friends to the new government, by affording them not only protection, but a participation in its privileges, and they will undoubtedly become its friends. The apprehension of returning under the dominion of Great Britain is chimerical: if there is any way to bring it about, the measures of those men against whose conduct these remarks are aimed, lead directly to it. A disorderly, or a violent government may disgust the best citizens, and make the body of the people tired of their independence.
The embarrassed and exhausted state of Great Britain, and the political system of Europe, render it impossible for her ever to reacquire the dominion of this country. Her former partisans must be convinced of this, and abandon her cause as desperate. They will never be mad enough to risk their fortunes a second time, in the hopeless attempt of restoring her authority; nor will they have any inclination to do it, if they are allowed to be happy under the government of the society in which they live. To make it practicable, if they should be so disposed, they must not only get the government of this State but of the United States into their hands. To suppose this possible is to suppose that a majority of the numbers, property, and abilities of the United States has been and is in opposition to the Revolution. Its success is a clear proof that this has not been the case, and every man of information among us knows the contrary. The supposition itself would show the absurdity of expelling a small number from the city, which would constitute so insignificant a proportion of the whole, as, without diminishing their influence, would only increase their disposition to do mischief. The policy in this case would be evident of appealing to their interests rather than to their fears.
Nothing can be more ridiculous than the idea of expelling a few from this city and neighborhood, while there are numbers in different parts of this and other States who must necessarily partake in our governments, and who can never expect to be the objects of animadversion or exclusion. It is confirming many in their enmity and prejudices against the State to indulge our enmity and prejudices against a few.
The idea of suffering the Tories to live among us under disqualifications is equally mischievous and absurd. It is necessitating a large body of citizens in the State to continue enemies to the government, ready at all times, in a moment of commotion, to throw their weight into that scale which meditates a change, whether favorable or unfavorable to public liberty.
Viewing the subject in every possible light, there is not a single interest of the community but dictates moderation rather than violence. That honesty is still the best policy; that justice and moderation are the surest supports of every government, are maxims which, however they may be called trite, are at all times true; though too seldom regarded, but rarely neglected with impunity. Were the people of America with one voice to ask: “What shall we do to perpetuate our liberties and secure our happiness?” the answer would be: “Govern well,” and you have nothing to fear either from internal disaffection or external hostility. Abuse not the power you possess, and you need never apprehend its diminution or loss. But if you make a wanton use of it; if you furnish another example that despotism may debase the government of the many as well as the few, you, like all others that have acted the same part, will experience that licentiousness is the forerunner to slavery.
How wise was that policy of Augustus, who, after conquering his enemies, when the papers of Brutus were brought to him, which would have disclosed all his secret associates, immediately ordered them to be burnt. He would not even know his enemies, that they might cease to hate where they had nothing to fear.
How laudable was the example of Elizabeth, who, when she was transferred from the prison to the throne, fell upon her knees, and thanking Heaven for the deliverance it had granted her from her bloody persecutors, dismissed her resentment. “This act of pious gratitude,” says her historian, “seems to have been the last circumstance in which she remembered any past injuries and hardships. With a prudence and magnanimity truly laudable, she buried all offences in oblivion, and received with affability even those who acted with the greatest virulence against her.” She did more, she retained many of the opposite party in her councils.
The reigns of these two sovereigns are among the most illustrious in history. Their moderation gave a stability to their government which nothing else could have effected. This was the secret of uniting all parties.
These sentiments are delivered to you in the frankness of conscious integrity by one who feels that solicitude for the good of the community which the zealots, whose opinions he encounters, profess; by one who pursues not as they do the honors or emoluments of his country; by one who, though he has had in the course of the Revolution a very confidential share in the public councils, civil and military, and has as often, at least, met danger in the common cause as any of those who now assume to be the guardians of the public liberty, asks no other reward from his countrymen, than to be heard without prejudice for their own interest.
P. S.—While the writer hopes the sentiments of this letter will meet the approbation of discreet and honest men, he thinks it necessary to apologize for the hasty and incorrect manner. Perhaps, too, expressions of too much asperity have been employed against those who take the lead in the principles which are here opposed; and feelings of indignation against the pernicious tendency of their measures have not admitted sufficient allowances for what is, in some instances, an honest though mistaken zeal. Though the writer entertains the worst opinion of the motives of many of them, he believes there are some who act from principle.
The little hasty production, under the signature of Phocion, has met with a more favorable reception from the public than was expected. The force of plain truth has carried it along against the stream of prejudice; and the principles it holds out have gained ground, in spite of the opposition of those who were either too angry, or too much interested, to be convinced. Men of this description, have, till lately, contented themselves with virulent invectives against the writer, without attempting to answer his arguments; but, alarmed at the progress of the sentiments advocated by him, one of them has at last come forward with an answer; with what degree of success, let those who are most partial to his opinion determine.
To say that the answer of Mentor is a feeble attempt, would be no derogation from his abilities; for, in fact, the cause he espouses, admits of nothing solid; and, as one of its partisans, he is only to be blamed for not knowing its weak sides better than to have been tempted to expose it to the experiment of a defence.
But, before I enter further into the subject, I shall take occasion to acknowledge, with regret, the injudicious appearance of warmth in my former letter; calculated, with many minds, to raise prejudices against the truths it contains, and liable to be misrepresented into a general censure on that part of the community whose zeal, sacrifices, and sufferings must ever render them respectable to the true friends of the Revolution. I shall only observe, in apology (as is truly the case), that whatever severity of animadversion may have been indulged, was wholly directed against a very small number of men, who are manifestly aiming at nothing but the acquisition of power and profit to themselves; and who, to gratify their avidity for these objects, would trample upon every thing sacred in society, and overturn the foundations of public and private security. It is difficult for a man, conscious of a pure attachment to the public weal, who sees it invaded and endangered by such men, under specious but false pretences, either to think or speak of their conduct without indignation. It is equally difficult for one who, in questions that affect the community, regards principles only, and not men, to look with indifference on attempts to make the great principles of social right, justice, and honor, the victims of personal animosity or party intrigue.
More tenderness is indeed due to the mistakes of those who have suffered too much to reason with impartiality; whose honest prejudices, grown into habits by the impressions of an eight years’ war, cannot at once accommodate themselves to that system which the public good requires; and whose situations are less favorable to distinguishing between doctrines invented to serve the turn of a revolution, and those which must give permanent prosperity to the State.
These observations I have thought proper to premise, in justice to my own intentions; and I shall now proceed, as concisely as possible, to examine the suggestions of Mentor, interspersing, as I go along, some remarks on objections which, though omitted by him, have been urged in other shapes against the principles of Phocion.
Mentor proposes to treat the sentiments of Phocion as a political novelty; but if he is serious, it is a proof that he is not even “tolerably well informed.” They are as old as any regular notions of free government among mankind; and are to be met with not only in every speculative writer on these subjects, but are interwoven in the theory and practice of that code which constitutes the law of the land. They speak the common language of this country at the beginning of the Revolution, and are essential to its future happiness and respectability.
The principles of all the arguments I have used, or shall use, lie within the compass of a few simple propositions which, to be assented to, need only to be stated.
Firstly. That no man can forfeit, or be justly deprived, without his consent, of any right to which, as a member of the community, he is entitled, but for some crime incurring the forfeiture.
Secondly. That no man ought to be condemned unheard, or punished for supposed offences, without having an opportunity of making his defence.1
Thirdly. That a crime is an act committed or omitted, in violation of a public law, either forbidding or commanding it.2
Fourthly. That a prosecution is, in its most precise signification, an inquiry or mode of ascertaining, whether a particular person has committed or omitted such act.
Fifthly. That duties and rights, as applied to subjects, are reciprocal; or, in other words, that a man cannot be a citizen for the purpose of punishment, and not a citizen for the purpose of privilege.
These propositions will hardly be controverted by any man professing to be a friend to civil liberty. The application of them will more fully appear hereafter.
By the Declaration of Independence, on the fourth of July, in the year seventeen hundred and seventy-six, acceded to by our Convention on the ninth, the late colony of New York became an independent State. All the inhabitants, who were subjects under the former government, and who did not withdraw themselves upon the change which took place, were to be considered as citizens, owing allegiance to the new government. This, at least, is the legal presumption; and this was the principle, in fact, upon which all the measures of our public councils have been grounded. Duties have been exacted and punishments inflicted according to this rule. If any exceptions to it were to be admitted, they could only flow from the indulgence of the State to such individuals as, from peculiar circumstances, might desire to be permitted to stand upon a different footing.
The inhabitants of the southern district, before they fell under the power of the British army, were as much citizens of the State as the inhabitants of other parts of it. They must, therefore, continue to be such, unless they have been divested of that character by some posterior circumstance. This circumstance must either be:
Their having, by the fortune of war, fallen under the power of the British army;
Their having forfeited their claim by their own misconduct;
Their having been left out of the compact by some subsequent association of the body of the State; or,
Their having been dismembered by treaty.
The first of these circumstances, according to the fundamental principles of government and the constant practice of nations, could have no effect in working a forfeiture of their citizenship. To allow it such an effect, would be to convert misfortune into guilt; it would be, in many instances, to make the negligence of the society, in not providing adequate means of defence for the several parts, the crime of those parts which were the immediate sufferers by that negligence. It would tend to the dissolution of society, by loosening the ties which bind the different parts together, and justifying those who should, for a moment, fall under the power of a conqueror, not merely in yielding such a submission as was exacted from them, but in taking a willing, interested, and decisive part with him.
It was the policy of the Revolution, to inculcate upon every citizen the obligation of renouncing his habitation, property, and every private concern for the service of his country; and many of us have scarcely yet learned to consider it as less than treason to have acted in a different manner. But it is time we should correct the exuberances of opinions propagated through policy and embraced from enthusiasm; and while we admit, that those who did act so disinterested and noble a part deserve the applause and, wherever they can be bestowed with propriety, the rewards of their country, we should cease to impute discriminate guilt to those who, submitting to the accidents of war, remained with their habitations and property. We should learn that this conduct is tolerated by the general sense of mankind; and that, according to that sense, whenever the State recovers the possession of such parts as were, for a time, subdued, the citizens returned at once to all the rights to which they were formerly entitled.
As to the second head, of forfeiture by misconduct, there is no doubt that all such as, remaining within the British lines, did not merely yield an obedience which they could not refuse without ruin, but took a voluntary and interested part with the enemy, in carrying on the war, became subject to the penalties of treason. They could not, however, by that conduct, make themselves aliens, because, though they were bound to pay a temporary and qualified obedience to the conqueror, they could not transfer their eventual allegiance from the State to a foreign power. By becoming aliens, too, they would have ceased to be traitors; and all the laws of the State, passed during the Revolution, by which they are considered and punished as subjects, would have been, by that construction, unintelligible and unjust. The idea, indeed, of citizens transforming themselves into aliens, by taking part against the State to which they belong, is altogether of new invention, unknown and inadmissible in law, and contrary to the nature of the social compact.
But were this not the case, an insurmountable difficulty would still remain: for how shall we ascertain who are aliens, or traitors, let us call them which we will? It has been seen that the boundaries of the British lines cannot determine the question; for this would be to say that the merely falling under the power of the British army, constituted every man a traitor or an alien. It would be to confound one third of the citizens of the State in promiscuous guilt and degradation, without evidence or inquiry. It would be to make crimes, which are, in their nature, personal and individual, aggregate and territorial. Shall we go into an inquiry to ascertain the crime of each person? This would be a prosecution1 ; and the treaty forbids all future prosecutions. Shall the Legislature take the map, and make a geographical delineation of the rights and disqualifications of its citizens? This would be to measure innocence and guilt by latitude and longitude. It would be to condemn and punish, not one man but thousands, for supposed offences, without giving them an opportunity of making their defence. God forbid that such an act of barefaced tyranny should ever disgrace our history! God forbid that the body of the people should be corrupt enough to wish it, or even to submit to it!
But here we are informed by Mentor, that the treaty, instead of offering any obstacle to the views of those who wish to metamorphose their fellow-citizens into aliens, is precisely the thing which removes the difficulty. Mentor is thus far right, that if they are aliens at all, it must be by some stipulation in the treaty; but it requires not a little dexterity to show that such a stipulation exists. If it exist at all, it must be collected from the fifth and sixth articles. Let us, by analyzing these articles, try if we can find it out.
The fifth article speaks, in the first clause, of real British subjects, whose estates had been confiscated; and stipulates that Congress shall recommend a restitution.
In the second clause it speaks of persons resident in districts in the possession of the British forces, who had not borne arms against the United States; of whose estates, also confiscated, Congress are, in like manner, to recommend a restitution.
In the third clause, persons of every other description are comprehended, who are to be permitted to remain twelve months unmolested, in any of the States, to solicit a restoration of their property, which had been confiscated; Congress recommending, even with respect to them, a restitution, on condition of their refunding to the present possessors, where there had been a sale, the bona fide price given by them for the estates in their possession.
It is apparent from the dissection of the article, that the inhabitants in the southern district, possessed by the British army, are not confounded in one general mass of alienism, as has been asserted. We find the express words of description are real British subjects, and as contradistinguished from them, persons resident in districts within the possession of the British arms. These last, by the letter as well as the spirit of the article, are deemed not British subjects.
There is no intelligible medium between a real British subject and one that is not a British subject at all. A man either is or is not the subject of a country. The word real, as applied to the affirmative, is a redundancy. Its natural contrasts are fictitious or pretended. If we should call the persons of other descriptions in the article fictitious or pretended British subjects, instead of justifying, it would exclude, the construction given by Mentor. For if they were only fictitious or pretended British subjects, they must be real American subjects; or, in other words, if they were not real British subjects, which, by necessary implication, they are declared not to be, they must, of necessity, be American subjects.
The phrase real British subjects, strictly considered, is inaccurate; but its practical import, with the help of a little candor, is easily fixed. It is well known, that in this and other States, the property of persons who had never been subjects of this country, before or after the Revolution, but who had truly been subjects of Great Britain, had, in many instances, been confiscated. Sir Henry Clinton, the late Governor Tryon, Lord Dunmore, are examples, among us, of the real British subjects in the contemplation of the treaty. All the rest are, of course, American subjects.
To understand the fifth and sixth articles relatively, it is necessary to remark, that all the different classes described in the fifth article agree in one common quality—they are all persons whose property had been already confiscated. I have placed this fact in a pointed view; because it shows incontestably, that the persons who are the objects of the fifth article, and those who are the objects of the sixth, are totally different. The one relates to persons whose property had been confiscated, and aims at restitution; the other relates to those whose property had not yet been confiscated, who were actually suffering the sentence of the law, and has for object, to prevent future prosecutions, confiscations, or injuries to individuals, on account of their conduct in the war.
This distinction solves the seeming contradiction between the fifth and sixth articles: the former providing for the future residence of persons of a particular description within the State for a twelve-month; the other prohibiting all future injury or damage to persons, liberty, or property. At first sight, the great extent of the latter provision appears to supersede, and render absurd, the former; but the two articles are reconciled, by considering those who had already suffered the sentence of the law as not within the purview of the sixth article, to arrest or remit that sentence; while all others against whom sentence had not passed, are within the protection of the sixth article. It does not operate with a retrospective and restorative influence, but looks forward and stops the future current of prosecution and punishment.
To illustrate, in a more striking manner, the fallacy of Mentor’s comment upon the treaty, I shall give a recital of it, with some explanatory additions, the fairness of which, I think, will not be disputed.
“In the sixth article,” says he, “it is provided that no one shall suffer in his person, liberty, or property, on account of the part he may have taken in the war”; and yet, though no one, consistently with the treaty, can hereafter suffer in either of those respects, yet, many, consistently with the treaty, may be declared aliens, may be stripped of the most valuable rights of citizenship, and may be banished from the State, without injury to person, liberty, or property. “The fifth article,” though it speaks of none but those who have already had their estates confiscated, “describes the persons provided for by the sixth,” which indeed says, that there shall be no future prosecutions, nor confiscations, nor injury to person, liberty, or property; but this only means, that there shall be no future prosecutions commenced against those who have been already attainted and banished; nor confiscations made of the estates of those whose estates have been already confiscated; nor injuries done to the persons, liberty, and property of those who are already to be esteemed dead in law by attainder and exile: but with respect to all those who have not been already attainted, banished, and subjected to confiscation (the only persons comprehended in the fifth article, and provided for in the sixth), we may prosecute, banish, confiscate, disfranchise, and do whatever else we think proper. The fifth article stipulates the good offices of Congress for those who have been already ruined; and the sixth benignly takes care that they shall not be ruined a second time; but leaves all others to their destiny and our mercy. “The fifth article distinguishes the persons who are the objects of it into three classes:—First: those who are real British subjects. The second: those,” meaning British subjects, who are not real British subjects, described by the appellation of persons resident in districts in the possession of the British forces, “who had not taken arms against the country. The third class are described by the provision that is made for them; namely: They shall have liberty to go into any part of the United States for twelve months, to solicit a restoration of their estates that may have been confiscated. This class must be those who, belonging to America, have taken arms against their country. As to the first and second class, it is agreed, that Congress shall recommend to the States a restoration of their property. The third, it seems, were too infamous for the English minister to ask any consideration for, except the wretched privilege of asking it for themselves”; though, in fact, with respect even to them, it is expressly stipulated that Congress shall recommend a restoration of their estates, rights, and properties, on paying to the present possessors, the bona fide price given for them, where there has been an actual sale. “But,” continues he, “I can find, nowhere, even a request, and that only implied, that any of the three classes may dwell among us, and enjoy the immunities and privileges of citizens: for the first class are considered as former subjects; the second and third as acquired subjects of England,”—acquired but not real.
Thus we see, by taking the outline of Mentor’s construction, and filling up the canvas in a manner suited to the design, the whole is a group of absurdities; or, in other words, by connecting the consequences with the principles of his comment on the treaty, the result is too ridiculous not to strike the meanest understanding.
It must appear by this time manifest, that there is nothing in the terms of the treaty, which countenances the supposition that those who have been within the British lines are considered and stipulated for as aliens. One ground upon which this idea has been originally adopted, was, that it would have been improper to have stipulated for them at all, if they were not aliens: but I have shown, in my former letter, that a stipulation for subjects, in similar circumstances, has been far from unprecedented.
A good criterion by which to determine the meaning of the treaty, in this respect, is, to recur to the impressions that it made on its first appearance, before there had been time to contrive and substitute an artificial to the natural and obvious sense of the words. Every man, by appealing to his own bosom, will recollect that he was at first struck with an opinion that the disaffected were secured from every future deprivation and injury whatever; and however many may have been chagrined at the idea that they should be admitted to a parity of privileges with those who had supported the Revolution, none doubted that this was the sense of the treaty. Indeed, the principal doubt seemed to be, in the first instance, whether the sixth article was not so broad as to protect even those who had been attainted, from personal injury, in case of their return within the State.
I shall not, in this place, revive the question of the power of Congress to make this stipulation; not only because Mentor appears to have conceded this point, and to acknowledge our obligation to a faithful observance of the treaty; but because what has been offered in my former letter on this head must continue to appear to me to be absolutely conclusive, until some satisfactory limits can be assigned to the powers of war, peace, and treaty, vested in Congress, other than those I have mentioned—the public safety, and the fundamental constitutions of society.
When any different and intelligible line shall be drawn, I will give up the question, if I cannot show it is inadmissible in practice.
The common interests of humanity, and the general tranquillity of the world, require that the power of making peace, wherever lodged, should be construed and exercised liberally; and even in cases where its extent may be doubtful, it is the policy of all wise nations to give it latitude rather than confine it. The exigencies of a community, in time of war, are so various, and often so critical, that it would be extremely dangerous to prescribe narrow bounds to that power by which it is to be restored. The consequence might frequently be a diffidence of our engagements, and a prolongation of the calamities of war.
It may not be improper, in this place, to answer an objection which has been made to a position contained in my former letter. It is there laid down as a rule, that the breach of a single article of a treaty annuls the whole. The reason of this rule is, that every article is to be regarded as the consideration of some other article.
This has given occasion to observe, that a breach of the treaty on the part of the British, in sending away a great number of negroes, has, upon my principles, long since annihilated the treaty, and left us at perfect liberty to desert the stipulations on our part.
This admits of an easy and solid answer. The breach of one article annuls the whole, if the side injured by it chooses to take advantage of it to dissolve the treaty1 ; but if its interest dictates a different conduct, it may waive the breach, and let the obligation of the treaty continue. The power of determining whether the treaty has been broken, properly belongs to that body who made it. Congress have wisely taken a different course; and, instead of reviving the state of hostility by declaring the treaty void, have proceeded upon the presumption of its continuing in force; and, by subsequent acts, have given it additional validity and strength. The definitive treaty has been since concluded, and proclaimed with a remarkable solemnity and energy for the observance of the citizens of the United States.
The third mode mentioned, by which the inhabitants of the southern district may have lost their rights of citizenship, is, their having been left out of the compact by some subsequent association of the body of the State. The fact, however, is directly the reverse: for, not only the Constitution makes provision for the representation of the people of the southern district in the Legislature, but, during the whole war, by an ordinance of the Convention who framed the Constitution, an actual representation has been kept up in a manner, the regularity of which (whatever might have been the expedience of it) was more than questionable, as all elections were suspended in that part of the State. This circumstance of a constant representation of the inhabitants of the southern district in the Legislature, during the war, is, in a rational as well as a legal light, a conclusive refutation of the pretended alienism of those inhabitants by any events of the war, or by any other matter that applies to them in a collective view antecedent to the treaty of peace. To this it may be added that a variety of the laws of this State, in the course of the war, suppose and treat the inhabitants of the southern district as subjects owing allegiance to the State, and, consequently, having the rights which subjects in general enjoy under the government.1
The argument is still stronger when we attend to what has been done by the government since the restoration of its jurisdiction in the southern district. We did not wait until a bill of naturalization was passed to remove the disabilities of the inhabitants before we proceeded to elections. We did not confine those elections to such persons only as had resided without the British lines, but left them open to all descriptions of persons who would choose to take the oath prescribed for that purpose by the Council. Few, indeed, in this city, besides those who had been absent, did in fact vote at the elections; but a considerable number did in the counties. And if we should admit the doctrine of the general alienism of the inhabitants of the southern district, either before, or in consequence of the treaty of peace, a curious question, not easy to be solved, would arise, as to the validity of the election of many individuals now holding seats in Senate and Assembly. So far as an act of government can decide the point in controversy, it is already decided. The Council for the temporary government of the southern district, in appointing the mode of election; the conduct of the Legislature since, in admitting the members elected in that mode, are unconstitutional; or the inhabitants at large of the southern district, either by the treaty, or any antecedent circumstance, are not aliens.
I have dwelt the more largely on this head, not only because the idea of a general alienism of the inhabitants of the southern district is the ground Mentor has taken; but because some persons, who have it in their power to make a mischievous use of it, are endeavoring to give it circulation, where, if it could prevail, it might lead to pernicious consequences. Pressed by the difficulty of discriminating those who may have forfeited the rights of citizenship from those who have not, without a manifest violation, as well of the Constitution as of the treaty of peace, they are willing, if possible, to devise some general expedient to evade both; and the one they have hit upon, is, to declare all those aliens who have lived within the British lines during the war, on the miserable pretence that they are made such by the treaty.
Thus we have another example how easy it is for men to change their principles with their situations; to be zealous advocates for the rights of the citizens when they are invaded by others; and, as soon as they have it in their power, to become the invaders themselves; to resist the encroachments of power, when it is in the hands of others; and, the moment they get it into their own hands, to make bolder strides than those they have resisted. Are such men to be sanctified with the hallowed names of patriots? Are they not rather to be branded as men who make their passions, prejudices, and interests the sole measure of their own and others’ rights?
The history of mankind is too full of these melancholy instances of human contradiction.
Having mentioned the oath directed to be prescribed to electors in the southern district, by the Council for the temporary government, I shall take occasion, in this place, with freedom but with respect, to examine the propriety of that measure.
This measure was founded upon an act of the Legislature of this State, passed in the year, declaring that persons who had been guilty of certain matters particularized in that act, should be for ever after disqualified from voting at all public elections. I confine myself, for the sake of brevity, to the general idea of the act. The embarrassment with the Council, no doubt, was, how to ascertain the persons who had incurred the disability. As the matters to which that disability related were of a specific nature, it was necessary they should be specifically ascertained before the law could have its effect.
The Council, therefore, could not satisfy that law by declaring all those disqualified who had resided within the British lines during the war. They would not leave the operation of it to a course of judicial investigation and decision, because this would be to fly in the face of the treaty; and appearances were to be preserved. This consideration was strengthened by another. The course of the law must have been dilatory. The elections were to be entered upon. It was deemed inexpedient that the voice of the citizens at large (which must have been the case if the act of the Legislature in question had been left to its natural course) should govern these elections. If the returning citizens were not at this juncture gratified, tumults were by some apprehended.
This was a plausible step, and on that account the more dangerous. If we examine it with an unprejudiced eye, we must acknowledge, not only that it was an evasion of the treaty, but a subversion of one great principle of social security: to wit, that every man shall be presumed innocent until he is proved guilty. This was to invert the order of things; and, instead of obliging the State to prove the guilt in order to inflict the penalty, it was to oblige the citizen to establish his own innocence to avoid the penalty. It was to excite scruples in the honest and conscientious, and to hold out a bribe to perjury.
That this was an evasion of the treaty, the fourth proposition already laid down will illustrate. It was a mode of inquiry, who had committed any of those crimes to which the penalty of disqualification was annexed; with this aggravation, that it deprived the citizen of the benefit of that advantage which he would have enjoyed, by leaving, as in all other cases, the burthen of the proof upon the prosecutor.
To place this matter in a still clearer light, let it be supposed, that instead of the mode of indictment and trial by jury, the Legislature was to declare, that every citizen who did not swear he had never adhered to the King of Great Britain, should incur all the penalties which our treason laws prescribe. Would this not be a palpable evasion of the treaty, and a direct infringement of the Constitution? The principle is the same in both cases; with only this difference in the consequences, that, in the instance already acted upon, the citizen forfeits a part of his rights; in the one supposed, he would forfeit the whole. The degree of punishment is all that distinguishes the cases. In either, justly considered, it is substituting a new and arbitrary mode of prosecution to that ancient and highly esteemed one, recognized by the laws and the Constitution of the State,—I mean the trial by jury.
Let us not forget, that the Constitution declares, that trial by jury, in all cases in which it has been formerly used, should remain inviolate for ever; and that the Legislature should, at no time, erect any new jurisdiction which should not proceed according to the courses of the common law. Nothing can be more repugnant to the true genius of the common law, than such an inquisition as has been mentioned into the consciences of men.
A share in the sovereignty of the State, which is exercised by the citizens at large, in voting at elections, is one of the most important rights of the subject, and, in a republic, ought to stand foremost in the estimation of the law. It is that right by which we exist a free people; and it certainly, therefore, will never be admitted, that less ceremony ought to be used in divesting any citizen of that right than in depriving him of his property. Such a doctrine would ill suit the principles of the Revolution, which taught the inhabitants of this country to risk their lives and fortunes in asserting their liberty; or, in other words, their right to a share in the government. That portion of the sovereignty to which each individual is entitled, can never be too highly prized. It is that for which we have fought and bled; and we should cautiously guard against any precedents, however they may be immediately directed against those we hate, which may, in their consequences, render our title to this great privilege precarious. Here we may find the criterion to distinguish the genuine from the pretended Whig. The man that would attack that right, in whatever shape, is an enemy to Whigism.
If any oath, with retrospect to past conduct, were to be made the condition on which individuals who have resided within the British lines should hold their estates, we should immediately see that this proceeding would be tyrannical, and a violation of the treaty; and yet, when the same mode is employed to divest that right, which ought to be deemed still more sacred, many of us are so infatuated as to overlook the mischief.
To say that the persons who will be affected by it have previously forfeited that right, and that therefore nothing is taken away from them, is a begging of the question. How do we know who are the persons in this situation? If it be answered, This is the mode taken to ascertain it; the objection returns, ’T is an improper mode, because it puts the most essential interests of the citizen upon a worse footing than we should be willing to tolerate where inferior interests were concerned; and because, to elude the treaty, it substitutes to the established and legal mode of investigating crimes and inflicting forfeitures, one that is unknown to the Constitution and repugnant to the genius of our law.
Much stress has been laid upon a couple of unmeaning words in the act to enforce the penalties for which the oath was invented. It is declared that the persons who have done the several things enumerated in the act shall be ipso facto disqualified. These words of potent sound but of little substance, have been supposed to include wonderful effects. Let us see if we can give them any definite meaning. If a man commits murder, by the very act, ipso facto, he incurs the penalty of death; but before he can be hanged we must inquire whether he has certainly committed the act. If a man has done any of those things which are declared sufficient to disqualify him from voting, though by the very act, ipso facto, he incurs the penalty of the law, yet, before he can be actually disqualified, we must inquire whether he has really done the act. From this we perceive the words ipso facto are mere expletives, which add nothing to the force or efficacy of the law.
It has been said, too, that an oath to determine the qualifications of electors is a usual precaution in free governments; but we may challenge those who make the assertion, to show that retrospective oaths have ever been administered, requiring electors to swear that they have not been guilty of past offences. In all the violence of party which has, at different periods, agitated Great Britain, nothing of this kind has ever been adopted; but even where religious fanaticism has given an edge to political opposition, and in an undecided contest for the crown, they have never gone further than to prescribe oaths for testing present dispositions towards the government, on general principles, without retrospection to particular instances of past mal-conduct. The practical notions of legal liberty established in that country by a series of trials, would make such an experiment too odious to be attempted by the government. Wise men have thought that even there they have carried the business of oaths to an exceptionable length; but we, who pretend a purer zeal for liberty, in a decided contest, after a formal renunciation of claims by the adverse party, are for carrying the matter to a still more blamable extreme.
Men whose judgments and intentions I respect, were the promoters of the measure which has occasioned this digression: some from the contagion of popular opinion; others from the too strong impressions of momentary expedience; and a third class from the insensible bias of some favorite pursuit.
As to the fourth method in which the inhabitants of the southern district may have lost their rights of citizenship, a dismemberment by treaty, I have naturally been drawn, under the third head, into a discussion of this; and I trust have shown, to the full satisfaction of all candid men, that there is not a shadow of foundation to suppose that such a dismemberment is in the contemplation of the treaty. A few short remarks shall conclude what I intend to say on this article.
It is a case without precedent, that a nation, in surrendering its acquisitions in war to the state from which those acquisitions were made, should stipulate for the inhabitants of the country given up as for its own subjects. To do it would be both useless and absurd: useless, because the country being surrendered, no reasonable advantage could be derived from retaining the allegiance of its inhabitants; absurd, because the district of territory surrendered being given up as a part of the state to which the surrender is made, it would be contradictory, by the same act, to acknowledge the right of that state to the part given up, and yet to hold up a claim to the allegiance of its inhabitants.
The surrender (for the question does not relate to original cessions) carries in itself a decisive implication that the inhabitants of the country surrendered are the subjects of the power to which the surrender is made; and the presumption in this case is so strong that nothing but the most positive and unequivocal exceptions in the treaty would be sufficient to defeat it. Labored constructions to give the treaty that complexion are inadmissible; for if there were room to doubt, the doubt, in just reasoning, should be interpreted against the position that the inhabitants of the country surrendered were the subjects of the power by which the surrender was made.
The only additional remark I shall make on this head is this: Though we are under great obligations to our ministers for the substance of the treaty, which comprehends all the essential interests of this country, we must acknowledge that the language of it is in many respects defective and obscure. The true rule in this case is not to have recourse to artificial and far-fetched interpretation, but to admit such meanings as the simple and popular import of the words conveys. When, therefore, it is said, in the sixth article, “that there shall be no future prosecutions commenced, nor confiscations made, nor damage done to person, liberty, or property of any person or persons on account of the part taken by them in the war”; as the natural and obvious scope of the words presents a full amnesty and indemnity for the future, we should not torture our imaginations to pervert them to a different sense.
It has been urged, in support of the doctrines under consideration, that every government has a right to take precautions for its own security, and to prescribe the terms on which its rights shall be enjoyed.
All this is true when understood with proper limitations; but, when rightly understood, will not be found to justify the conclusions which have been drawn from the premises.
In the first formation of a government, the society may multiply its precautions as much, and annex as many conditions to the enjoyment of its rights, as it shall judge expedient; but when it has once adopted a Constitution that Constitution must be the measure of its discretion in providing for its own safety, and in prescribing the conditions upon which its privileges are to be enjoyed. If the Constitution declares that persons possessing certain qualifications shall be entitled to certain rights while that Constitution remains in force, the government, which is the mere creature of the Constitution, can divest no citizen, who has the requisite qualifications, of his corresponding rights. It may indeed enact laws and annex to the breach of them the penalty of forfeiture; but before that penalty can operate, the existence of the fact upon which it is to take place must be ascertained in that mode which the Constitution and fundamental laws have provided. If trial by jury is the mode known and established by that Constitution and those laws, the persons who administer the government in deviating from that course will be guilty of usurpation. If the Constitution declares that the legislative power of the state shall be vested in one set of men and the judiciary power in another; and those who are appointed to act in a legislative capacity undertake the office of judges; if, instead of confining themselves to passing laws with proper sanctions to enforce their observance, they go out of their province to decide who are the violators of those laws, they subvert the Constitution and erect a tyranny. If the Constitution were even silent on particular points, those who are intrusted with its power would be bound in exercising their discretion to consult and pursue its spirit, and to conform to the dictates of reason and equity; if, instead of this, they should undertake to declare whole classes of citizens disfranchised and excluded from the common rights of the society without hearing, trial, examination, or proof; if, instead of waiting to take away the rights of citizenship from individuals till the state has convicted them of crimes by which they are to lose them before the ordinary and regular tribunal, they institute an inquisition into men’s consciences and oblige them to give up their privileges or undertake to interpret the law at the hazard of perjury, they expose themselves to the imputation of injustice and oppression.
The right of government to prescribe the conditions on which its privileges shall be enjoyed is bounded, with respect to those who are already included in the compact, by its original conditions: in admitting strangers it may add new ones; but it cannot, without a breach of the social compact, deprive those who have been once admitted, of their rights, unless for some declared cause of forfeiture authenticated with the solemnities required by the subsisting compact.
The rights, too, of a republican government are to be modified and regulated by the principles of such a government. These principles dictate that no man shall lose his rights without a hearing and conviction before the proper tribunal; that, previous to his disfranchisement, he shall have the full benefit of the laws to make his defence; and that his innocence shall be presumed until his guilt has been proved. These, with many other maxims, never to be forgotten in any but tyrannical governments, oppose the aims of those who quarrel with the principles of Phocion.
Cases indeed of extreme necessity are exceptions to all general rules, but these only exist when it is manifest the safety of the community is in imminent danger. Speculations of possible danger never can be justifying causes of departures from principles on which, in the ordinary course of things, all private security depends; from principles which constitute the essential distinction between free and arbitrary governments.
When the advocates for legislative discriminations are driven from one subterfuge to another, their last resting-place is that this is a new case, the case of a revolution. Your principles are all right, say they, in the ordinary course of society; but they do not apply to a situation like ours. This is opening a wilderness through all the labyrinths of which it is impossible to pursue them. The answer to this must be that there are principles eternally true, and which apply to all situations such as those that have been already enumerated; that we are not now in the midst of a revolution, but have happily brought it to a successful issue; that we have a Constitution formed as a rule of conduct; that the frame of our government is determined, and the general principles of it settled; that we have taken our station among nations; have claimed the benefit of the laws which regulate them, and must in our turn be bound by the same laws; that those eternal principles of social justice forbid the inflicting punishment upon citizens by an abridgment of rights, or in any other manner, without conviction of some specific offence by regular trial and condemnation; that the Constitution we have formed makes the trial by jury the only proper mode of ascertaining the delinquencies of individuals; that legislative discriminations to supersede the necessity of inquiry and proof would be a usurpation of the judiciary powers of the government, and a renunciation of all the maxims of civil liberty; that by the laws of nations and the rules of justice we are bound to observe the engagements entered into on our behalf by that power which is invested with the constitutional prerogative of treaty; and that the treaty we have made in its genuine sense ties up the hands of government from any species of future prosecution or punishment, on account of the part taken by individuals in the war.
Among the extravagancies with which these prolific times abound, we hear it often said that the Constitution being the creature of the people, their sense with respect to any measure, if it even stand in opposition to the Constitution, will sanctify and make it right.
Happily for us in this country, the position is not to be controverted, that the Constitution is the creature of the people; but it does not follow that they are not bound by it while they suffer it to continue in force, nor does it follow that the Legislature, which is, on the other hand, a creature of the Constitution, can depart from it on any presumption of the contrary sense of the people.
The Constitution is the compact made between the society at large and each individual. The society, therefore, cannot without breach of faith and injustice refuse to any individual a single advantage which he derives under that compact, no more than one man can refuse to perform his agreement with another. If the community have good reasons for abrogating the old compact and establishing a new one, it undoubtedly has a right to do it; but until the compact is dissolved with the same solemnity and certainty with which it was made, the society as well as individuals are bound by it.
All the authority of the Legislature is delegated to them under the Constitution; their rights and powers are there defined; if they exceed them it is a treasonable usurpation upon the power and majesty of the people, and by the same rule that they may take away from a single individual the rights he claims under the Constitution, they may erect themselves into perpetual dictators. The sense of the people, if urged in justification of the measure, must be considered as a mere pretext, for that sense cannot appear to them in a form so explicit and authoritative as the Constitution under which they act, and if it could appear with equal authenticity, it could only bind when it had been preceded by a declared change in the form of government.
The contrary doctrine serves to undermine all those rules by which individuals can know their duties and their rights, and to convert the government into a government of will, not of laws.
There is only one light, on Mentor’s plan, in which this subject remains to be considered; the danger to the government from suffering persons to reside among us who have an aversion to our Constitution; either by their becoming auxiliaries to future attempts of the British nation to recover their lost authority, or by their contributing to corrupt the principles and change the form of our government.
My observations on this subject in my former letter, I believe, remain unshaken by what Mentor has opposed to them. I shall, however, add a few others.
The restoration of British authority in this country is too chimerical to be believed even by Mentor himself; though he makes some faint essay to induce the supposition.
Why did Great Britain make peace with America? Because the necessity of her affairs compelled her to do it In what did this necessity consist? In every species of embarrassment and disorder that a nation could experience. Her public debt had almost arrived at that point, when the expenses of a peace establishment were nearly equal to all the revenues they were able to extract from exhausting the sources of taxation. Had they carried on the war till they had exceeded this point, a bankruptcy would have been the inevitable consequence. We perceive, as it is, the great difficulties that are acknowledged by every succession of ministers, in devising means to retrieve the affairs of the nation.
The distractions of the government, arising from those embarrassments, are scarcely paralleled in any period of British history. Almost every sitting of Parliament is a signal of a change of ministry. The King at variance with his Ministers; the Ministers unsupported by Parliament; the Lords disagreeing with the Commons; the nation execrating the King, Ministers, Lords, and Commons; all these are symptoms of a vital malady in the present state of the nation.
Externally the scene is not brighter. The affairs of the East India settlements are in the most per-plexing confusion; and Ireland seems to be ready to dismember itself from the British Empire.
It may be said that these are temporary mischiefs, which may be succeeded by greater tranquility, prosperity, and power. The future situation of Great Britain is a problem which the wisest man cannot solve. In all appearance, it will be a considerable time before she can recover from the pressure of the evils under which she now labors, to be in a condition to form enterprises against others. When that period may arrive, our strength and resources will have greatly increased; the habits of men attached to her will have worn out: and it is visionary to suppose that she will then entertain a disposition to renew her attempts upon a country, increased in strength and resources, exerting its forces under an established Constitution, fortified by foreign alliances, which her acknowledged independence will at all times command; when she reflects that that country, in the tumult of a revolution, and in a state of comparative impotence, baffled all her efforts in the zenith of her power.
To an enlightened mind it will be sufficient to say, upon this subject, that, independent of our own means of repelling enterprises against us, Europe has been taught, by this revolution, to estimate the danger to itself of a union of the two countries under the same government, in too striking a manner ever to permit the reunion, or tolerate the attempts of Great Britain toward it.
The danger from the corruption of the principles of our government is more plausible, but not more solid. It is an axiom, that governments form manners, as well as manners form governments. The body of the people of this State are too firmly attached to the democracy to permit the principles of a small number to give a different tone to that spirit.1 The present law of inheritance, making an equal division among the children of the parents’ property, will soon melt down those great estates, which, if they continued, might favor the power of the few. The number of the disaffected, who are so from speculative notions of government, is small. The great majority of those who took part against us did it from accident, from the dread of the British power, and from the influence of others to whom they had been accustomed to look up. Most of the men who had that kind of influence are already gone: the residue and their adherents must be carried along by the torrent, and, with a very few exceptions, if the government is mild and just, will soon come to view it with approbation and attachment.
Either the number of malcontents in the State is small or it is considerable. If small, there is no room for apprehension; if great, then opposition to the government is only to be overcome by making it their interest to be its friends, or by extirpating them from the community. A middle line, which will betray a spirit of persecution in the government, but will only extend its operation to a small number, will answer no other purpose than to disable a few, and inflame and rivet the prejudices of the rest, by exhibiting the temper of government in a harsh and unconciliating light. We shall, then, in truth, have a considerable faction in the State ready for all innovations.
The impracticability of such a general extirpation, suggests the opposite conduct as the only proper one.
There is a bigotry in politics as well as in religions, equally pernicious in both. The zealots, of either description, are ignorant of the advantage of a spirit of toleration. It was a long time before the kingdoms of Europe were convinced of the folly of persecution with respect to those who were schismatics from the established church. The cry was, these men will be equally the disturbers of the Hierarchy and of the State. While some kingdoms were impoverishing and depopulating themselves by their severities to the non-conformists, their wiser neighbors were reaping the fruits of their folly, and augmenting their own numbers, industry, and wealth, by receiving, with open arms, the persecuted fugitives. Time and experience have taught a different lesson: and there is not an enlightened nation which does not now acknowledge the force of this truth, that whatever speculative notions of religion may be entertained, men will not, on that account, be enemies to a government that affords them protection and security. The same spirit of toleration in politics, and for the same reasons, has made great progress among mankind, of which the history of most modern revolutions is a proof. Unhappily for this State, there are some among us who possess too much influence; that have motives of personal ambition and interest to shut their minds against the entrance of that moderation which the real welfare of the community teaches.
Our neighbors seem to be in a disposition to benefit by our mistakes; and the time will not be very remote, if the schemes of some men can prevail, when we shall be ashamed of our own blindness, and heap infamy upon its promoters.
It is remarkable, though not extraordinary, that those characters, throughout the States, who have been principally instrumental in the revolution, are the most opposed to persecuting measures. Were it proper, I might trace the truth of this remark from that character which has been the first, in conspicuousness, through the several gradations of those, with very few exceptions, who, either in the civil or military line, have borne a distinguished part. On the other hand, I might point out men who were reluctantly dragged into taking a part in the revolution; others who were furious zealots in the commencement of the dispute, that were not heard of to any public purpose, during the progress of it; and others who were fluctuating, according to the tide of good- or ill-fortune; all of whom now join in the cry with a fourth class, more imprudent, but much more respectable, and endeavor, by the loudness of their clamors, to atone for their past delinquencies.
As to Mentor’s commercial reveries, I shall decline bestowing many remarks upon them; not only because they are not immediately connected with the general subject, but because there is little danger of their making any proselytes, while men are convinced that the prosperity of the national commerce depends as much upon the extent of its capital as that of an individual; that to confine trade to any particular description of men, in exclusion of others who have better means of carrying it on, would be, if practicable, to make the people at large tributary to the avarice of a small number who were to have the benefit of the monopoly; that, in the present situation of things, a very small proportion of those intended to be benefited, who have the means to avail themselves of the advantage, would reap all its fruits, even at the expense, and to the prejudice, of the greater part of those who were meant to be favored; that the fewer hands trade is confined to, the less will be its activity, and the less the degree of employment afforded to other classes of the community; and, in short, that all monopolies, exclusions, and discriminations, in matters of traffic, are pernicious and absurd.
Since writing the foregoing, I have learned that a bill is depending before the House of Assembly, for putting various descriptions of persons out of the protection of government. I have too much respect for the wisdom and virtue of that body, to suppose a measure of this nature can obtain the sanction of the majority. What is the plain language of the proposal? There are certain persons who are obnoxious to public resentment. The treaty forbids us to proceed against them in a legal way. Let us, therefore, by an unconstitutional exertion of power evade the treaty, however dangerous the precedent to the liberty of the subject, and however derogatory to the honor of the nation. By the treaty we stipulate, that no person or persons shall suffer, on account of the part they may have taken in the war, any damage to person, liberty, or property; and yet, by taking away the protection of government, which they would enjoy under the subsisting laws, we leave them to suffer whatever injury to either, the rashness of individuals who are the subjects of the State, may think proper to inflict. What would this be, but to imitate the conduct of a certain general, who, having promised that he would not spill the blood of some prisoners who were about to surrender by capitulation, after he had them in his power had them all strangled to death? Words, in every contract, are to be construed so as to give them a reasonable effect. When it is stipulated that a man shall not suffer in person, liberty, or property, it does not merely mean, that the State will not inflict any positive punishment upon him, but also that it will afford him protection and security from injury. The very letter, as well as the spirit of the stipulation, imports this. He shall not suffer any damage, are the words of the treaty.
The scheme of putting men out of the protection of the law, is calculated to transfer the sceptre from the hands of government to those of individuals; it is to arm one part of the community against another; it is to enact a civil war. If, unhappily for the State, this plan could succeed, no man can foresee the end of it. But the guardians of the rights of the community will certainly, on mature deliberation, reject it.
Feeling for the honor of the State, if expulsions must take place, if the Constitution and the faith of the United States must be sacrificed to a supposed political expedience, I had much rather see an open avowal of the principles upon which we acted, than that we should clothe the design with a veil of artifice and disguise, too thin not to be penetrated by the most ordinary eye.
I shall now, with a few general reflections, conclude.
Those who are at present entrusted with power, in all these infant republics, hold the most sacred deposit that ever was confided to human hands. ’T is with governments as with individuals; first impressions and early habits give a lasting bias to the temper and character. Our governments, hitherto, have no habits. How important to the happiness, not of America alone, but of mankind, that they should acquire good ones!
If we set out with justice, moderation, liberality, and a scrupulous regard to the Constitution, the government will acquire a spirit and tone productive of permanent blessings to the community. If, on the contrary, the public councils are guided by humor, passion, and prejudice; if from resentment to individuals, or a dread of partial inconveniences, the Constitution is slighted, or explained away, upon every frivolous pretext, the future spirit of government will be feeble, distracted, and arbitrary. The rights of the subject will be the sport of every party vicissitude. There will be no settled rule of conduct, but every thing will fluctuate with the alternate prevalency of contending factions.
The world has its eye upon America. The noble struggle we have made in the cause of liberty has occasioned a kind of revolution in human sentiment. The influence of our example has penetrated the gloomy regions of despotism, and has pointed the way to enquiries which may shake it to its deepest foundations. Men begin to ask, everywhere: Who is this tyrant that dares to build his greatness on our misery and degradation? What commission has he to sacrifice millions to the wanton appetites of himself and a few minions that surround his throne?
To ripen enquiry into action, it remains for us to justify the revolution by its fruits.
If the consequences prove that we really have asserted the cause of human happiness, what may not be expected from so illustrious an example? In a greater or less degree the world will bless and imitate.
But if experience, in this instance, verifies the lesson long taught by the enemies of liberty, that the bulk of mankind are not fit to govern themselves; that they must have a master, and were only made for the rein and the spur; we shall then see the final triumph of despotism over liberty; the advocates of the latter must acknowledge it to be an ignis fatuus, and abandon the pursuit. With the greatest advantages for promoting it that ever a people had, we shall have betrayed the cause of human nature.
Let those in whose hands it is placed pause for a moment, and contemplate with an eye of reverence the vast trust committed to them. Let them retire into their own bosoms and examine the motives which there prevail. Let them ask themselves this solemn question: Is the sacrifice of a few mistaken or criminal individuals an object worthy of the shifts to which we are reduced, to evade the Constitution and the national engagements? Then let them review the arguments that have been offered with dispassionate candor; and if they even doubt the propriety of the measures they may be about to adopt, let them remember, that, in a doubtful case, the Constitution ought never to be hazarded without extreme necessity.
repeal of all acts inconsistent with the treaty
[An act entitled “An act relative to debts due to persons within the enemy’s lines,” and another act entitled “An act to explain and amend the act entitled an act relative to debts due to persons within the enemy’s lines.”—April 20, 1787.]
speech on the passage of this act1
Mr. Hamilton expressed great uneasiness that any opposition should be made to this bill; particularly as this State was individually interested therein. He felt greater regret, from a conviction in his own mind, on this occasion, that the bill should be objected to, as there was not a single law in existence in this State, in direct contravention of the treaty of peace. He urged the committee to consent to the passing of the bill, from the consideration that the State of New York was the only State to gain any thing by a strict adherence to the treaty. There was no other State in the Union that had so much to expect from it. The restoration of the western posts was an object of more than £100,000 per annum. Great Britain, he said, held those posts, on the plea that the United States have not fulfilled the treaty, and which we have strong assurances she will relinquish, on the fulfilment of our engagements with her. But how far Great Britain might be sincere in her declaration was unknown; indeed he doubted it himself. But while he doubted the sincerity of Great Britain, he could not but be of opinion that it was the duty of this State to enact a law for the repeal of all laws which may be against the said treaty, as by doing away all exceptions, she would be reduced to a crisis. She would be obliged to show to the world whether she was in earnest or not, and whether she will sacrifice her honor and reputation to her interest. With respect to the bill, as it was drafted in conformity to the recommendation of Congress, he viewed it as a wise and salutary measure, one calculated to meet the approbation of the different States, and most likely to answer the end proposed. Were it possible to examine an intricate maze of laws, and to determine which of them, or what parts of laws, were opposed to the treaty, it still might not have the intended effect, as different parties would have the judging of this matter. What one should say was a law not inconsistent with the peace, another might say was so; and there would be no end, no decision of the business. Even some of the States might view laws in a different manner. The only way to comply with the treaty was to make a general and unexceptional repeal. Congress, with an eye to this, had proposed a general law, from which the one before them was a copy. He thought it must be obvious to every member of the committee, that as there was no law in direct opposition to the treaty, no difficulty could arise from passing the bill.
Some gentlemen, he observed, were apprehensive that this bill would restore the confiscated estates, etc. This he did not admit. However, if they were so disposed they might add a proviso to prevent it. He had written one, which any of the gentlemen might move, if they thought it necessary; in his opinion it was not.
The treaty only provided that no future confiscations should take place; and that Congress should earnestly recommend a restoration of property. But there was nothing obligatory in this.
If this State should not come into the measure, would it not be a very good plea for the other States to favor their own citizens, and say, “Why should we do this, when New York, the most interested of any of the States, refuses to adopt it?” and shall we suffer this imputation when, in fact we have no laws in existence that militate against the treaty? He stated the great disadvantages that our merchants have experienced from the western posts being in the hands of the British, and asked if it was good policy to let them remain so.
It had been said, that the judges would have too much power;—this was a misapprehension. He stated the powers of the judges with great clearness and precision. He insisted that their powers would be the same, whether this law was passed or not. For, as all treaties were known by the Constitution as the laws of the land, so must the judges act on the same, any law to the contrary notwithstanding.
Cicero, the great Roman orator and lawyer, lays it down as a rule, that when two laws clash, that which relates to the most important matters ought to be preferred? If this rule prevails, who can doubt what would be the conduct of the judges, should any laws exist inconsistent with the treaty of peace? But it would be impolitic to leave them to the dilemma, either of infringing the treaty to enforce the particular laws of the State, or to explain away the laws of the State to give effect to the treaty.
He declared that the full operation of the bill would be no more than merely to declare the treaty the law of the land; and that the judges, viewing it as such, shall do away all laws that may appear in direct contravention of it. Treaties were known constitutionally to be the law of the land, and why be afraid to leave the interpretation of those laws to the judges? The Constitution knows them as the interpreters of the law. He asked if there was any member of the committee who would be willing to see the first treaty of peace ever made by this country violated. This he did not believe. He could not think that any member on that floor harbored such sentiments.
He was in hopes the committee would agree with him in sentiment, and give a proof of their attachment to our national engagements by passing the bill, which would do away every exception of the British court.
hamilton to william short1
|Amount in the whole||3,000,000||livres.|
The Farmers General of France claim a large balance from the United States, on account of one million of livres, which they contend was advanced in June, 1777, in consequence of a special contract with Messrs. Franklin and Deane, to be repaid by the delivery of tobacco at certain stipulated prices, and the advance made by the Farmers General is said to be the same money as is credited by Mr. Grand on the 4th of June, 1777.
After a careful examination of the foreign accounts, it is found that no more than three millions of livres have been credited by any agent of the United States.
An opinion was entertained by the late officers of the Treasury, that the sum claimed by the Farmers General composed a part of the sum supplied as gratuitous aid by the government. Subsequent explanations have, however, rendered it probable that, including the claim of the Farmers General, the sum of four millions of livres was in fact received; it is, however, indispensable that it should be known to whom the money was paid.
The most direct mode of obtaining this information will be, to call for copies of the receipts mentioned in Mr. Durival’s letter of 1786, and more particularly a copy of that said to have been given on the 10th of June, 1776.
And as explanatory of the transaction, he has sent me the documents herewith transmitted.
The most likely conjecture, in my mind, considering the period of the advance, and the circumstances of that period, is, that the unaccounted for million went into the hands of M. de Beaumarchais. The supplies which he furnished to the United States exceeded his own probable resources, besides the imprudence of having hazarded so much at that stage of our affairs upon our ability to pay. And there were many symptoms, at the time, of his having been secretly put in motion by the government.
It has now become urgent that the truth of the case should be known. An account has recently passed the auditor’s office, admitting in favor of M. de Beaumarchais a balance of four hundred and twenty-two thousand two hundred and sixty-five dollars and thirteen cents, with a reservation only of the question of the million. If he has received that million which has been acknowledged as a free gift from the French government, it is unjust that he should be able to establish a claim against the United States for supplies which must have been the proceeds of that sum. If he has never received the million, every day’s suspension of is claim, after the immense delays heretofore incurred, is a grievous hardship upon him. It concerns materially the interests, and more the justice, the credit, and the character of the United States, that as speedy a solution as possible of the enigma may be obtained.
With a view to this, I have the honor to make you the present communication, that you may be pleased to take such steps as shall appear to you the most proper and efficacious to procure, as speedily as the nature of the case will admit, the requisite explanations.
hamilton to washington
June 15, 1793.
Sir:—The inclosed report will, I trust, make it appear that there are good reasons relative to the execution of the purposes specified in the laws for making a further loan to the extent proposed.
But, bottoming the proceeding upon the direct object of the laws, as the legal and primary inducement, it appears to me justifiable and wise to embrace, as secondary and collateral motives, the probable operation of the measure on the public interests, in ways not immediately indicated in the laws. On this ground, I think the legal considerations for a further loan are enforced by the general state of affairs at the present juncture.
Should a general Indian war ensue, and, still more, should we unfortunately be involved in a European war, nothing could be more convenient than to have anticipated such a resource, which the Legislature might apply to the new exigencies, as far as regards the purchase of the debt, without any violation of principle.
In the event of a European war breaking out, it would probably be too late to attempt what, beforehand, would be practicable without difficulty.
With perfect respect, and the truest attachment, etc.
(From the Gazette of the United States.)
June 29, 1793.
As attempts are making very dangerous to the peace, and, it is to be feared, not very friendly to the Constitution, of the United States, it becomes the duty of those who wish well to both, to endeavor to prevent their success.
The objections which have been raised against the proclamation of neutrality, lately issued by the President, have been urged in a spirit of acrimony and invective, which demonstrates that more was in view than merely a free discussion of an important public measure. They exhibit evident indications of a design to weaken the confidence of the people in the author of the measure, in order to remove or lessen a powerful obstacle to the success of an opposition to the government, which, however it may change its form according to circumstances, seems still to be persisted in with more untiring industry.
This reflection adds to the motives connected with the measure itself, to recommend endeavors by proper explanations, to place it in a just light. Such explanations, at least, cannot but be satisfactory to those who may not themselves have leisure or opportunity for pursuing an investigation of the subject, and who may wish to perceive that the policy of the government is not inconsistent with its obligations or its honor.
The objections in question fall under four heads:
- 1. That the proclamation was without authority.
- 2. That it was contrary to our treaties with France.
- 3. That it was contrary to the gratitude which is due from this to that country, for the succors afforded to us in our own revolution.
- 4. That it was out of time and unnecessary.
In order to judge of the solidity of the first of these objections, it is necessary to examine what is the nature and design of a proclamation of neutrality.
It is to make known to the Powers at war, and to the citizens of the country whose government does the act, that such country is in the condition of a nation at peace with the belligerent parties, and under no obligations of treaty to become an associate in the war with either, and that this being its situation, its intention is to observe a corresponding conduct by performing towards each the duties of neutrality; to warn all persons within the jurisdiction of that country to abstain from acts that shall contravene those duties, under the penalties which the laws of the land, of which the jus gentium is part, will inflict.
This, and no more, is conceived to be the true import of a proclamation of neutrality.
It does not imply that the nation which makes the declaration will forbear to perform to either of the warring Powers any stipulations in treaties which can be executed without becoming a party in the war. It therefore does not imply in our case that the United States will not make those distinctions between the present belligerent Powers which are stipulated in the 7th and 22d articles of our treaty with France, because they are not incompatible with the state of neutrality and will in no shape render the United States an associate or party in the war. This must be evident when it is considered that even to furnish determinate succors of ships or troops to a Power at war, in consequence of antecedent treaties having no particular reference to the existing quarrel, is not inconsistent with neutrality; a position equally well established by the doctrines of writers and the practice of nations.1
But no special aids, succors, or favors, having relation to war, not positively and precisely stipulated by some treaty of the above description, can be afforded to either party without a breach of neutrality.
In stating that the proclamation of neutrality does not imply the non-performance of any stipulations of treaties which are not of a nature to make the nation an associate in the war, it is conceded that an execution of the clause of guaranty, contained in the eleventh article of our treaty of alliance with France, would be contrary to the sense and spirit of the proclamation because it would engage us with our whole force as an auxiliary in the war; it would be much more than the case of a definite succor, previously ascertained.
It follows that the proclamation is virtually a manifestation of the sense of government, that the United States are, under the circumstances of the case, not bound to execute the clause of guaranty.
If this be a just view of the force and import of the proclamation, it will remain to see whether the President, in issuing it, acted within his proper sphere, or stepped beyond the bounds of his constitutional authority and duty.
It will not be disputed that the management of the affairs of this country with foreign nations is confided to the Government of the United States.
It can as little be disputed that a proclamation of neutrality, when a nation is at liberty to decline or avoid a war in which other nations are engaged, and means to do so, is a usual and a proper measure. Its main object is to prevent the nation’s being responsible for acts done by its citizens, without the privity or connivance of the government, in contravention of the principles of neutrality1 ; an object of the greatest moment to a country whose true interest lies in the preservation of peace.
The inquiry, then, is, what department of our government is the proper one to make a declaration of neutrality, when the engagements of the nation permit, and its interests require that it should be done?
A correct mind will discern at once, that it can belong neither to the legislative nor judicial department, and therefore of course must belong to the executive.
The legislative department is not the organ of intercourse between the United States and foreign nations. It is charged neither with making nor interpreting treaties. It is therefore not naturally that member of the government which is to pronounce on the existing condition of the nation with regard to foreign powers, or to admonish the citizens of their obligations and duties in consequence; still less is it charged with enforcing the observance of those obligations and duties.
It is equally obvious, that the act in question is foreign to the judiciary department. The province of that department is to decide the litigation in particular cases. It is indeed charged with the interpretations of treaties, but it exercises this function only where contending parties bring before it a specific controversy. It has no concern with pronouncing upon the external political relations of treaties between government and government. This position is too plain to need being insisted upon.
It must, then, of necessity belong to the executive department to exercise the function in question, when a proper case for it occurs.
It appears to be connected with that department in various capacities:—As the organ of intercourse between the nation and foreign nations; as the interpreter of the national treaties, in those cases in which the judiciary is not competent—that is, between government and government; as the power which is charged with the execution of the laws, of which treaties form a part; as that which is charged with the command and disposition of the public force.
This view of the subject is so natural and obvious, so analogous to general theory and practice, that no doubt can be entertained of its justness, unless to be deduced from particular provisions of the Constitution of the United States.
Let us see, then, if cause for such doubt is to be found there.
The second article of the Constitution of the United States, section first, establishes this general proposition, that “the executive power shall be vested in a President of the United States of America.”
The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the Senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed.
It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the Senate in the appointment of officers and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The difficulty of a complete enumeration of all the cases of executive authority would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the Constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are: “All legislative powers herein granted shall be vested in a Congress of the United States.” In that which grants the executive power, the expressions are: “The executive power shall be vested in a President of the United States.”
The enumeration ought therefore to be considered as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government.
The general doctrine of our Constitution, then, is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument.
Two of these have been already noticed: the participation of the Senate in the appointment of officers, and in the making of treaties. A third remains to be mentioned: the right of the Legislature “to declare war, and grant letters of marque and reprisal.”
With these exceptions, the executive power of the United States is completely lodged in the President. This mode of construing the Constitution has indeed been recognized by Congress in formal acts, upon full consideration and debate; of which the power of removal from office is an important instance. It will follow, that if a proclamation of neutrality is merely an executive act, as, it is believed, has been shown, the step which has been taken by the President is liable to no just exception on the score of authority.
It may be said, that this inference would be just, if the power of declaring war had not been vested in the Legislature; but that this power naturally includes the right of judging whether the nation is or is not under obligations to make war.
The answer is, that, however true this position may be, it will not follow that the executive is in any case excluded from a similar right of judgment, in the execution of its own functions.
If, on the one hand, the Legislature have a right to declare war, it is on the other, the duty of the executive to preserve peace till the declaration is made; and in fulfilling this duty, it must necessarily possess a right of judging what is the nature of the obligations which the treaties of the country impose on the government; and when it has concluded that there is nothing in them inconsistent with neutrality, it becomes both its province and its duty to enforce the laws incident to that state of the nation. The executive is charged with the execution of all laws, the law of nations, as well as the municipal law, by which the former are recognized and adopted. It is consequently bound, by executing faithfully the laws of neutrality, when the country is in a neutral position, to avoid giving cause of war to foreign Powers.
This is the direct end of the proclamation of neutrality. It declares to the United States their situation with regard to the contending parties, and makes known to the community, that the laws incident to that state will be enforced. In doing this, it conforms to an established usage of nations, the operation of which, as before remarked, is to obviate a responsibility on the part of the whole society, for secret and unknown violations of the rights of any of the warring Powers by its citizens.
Those who object to the proclamation will readily admit, that it is the right and duty of the executive to interpret those articles of our treaties which give to France particular privileges, in order to the enforcement of them: but the necessary consequence of this is, that the executive must judge what are their proper limits; what rights are given to other nations, by our contracts with them; what rights the law of nature and nations gives, and our treaties permit, in respect to those countries with which we have none; in fine, what are the reciprocal rights and obligations of the United States, and of all and each of the Powers at war.
The right of the executive to receive ambassadors and other public ministers, may serve to illustrate the relative duties of the executive and legislative departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognized or not; which, where a treaty antecedently exists between the United States and such nation, involves the power of continuing or suspending its operation. For until the new government is acknowledged, the treaties between the nations, so far at least as regards public rights, are of course suspended.
This power of determining virtually upon the operation of national treaties, as a consequence of the power to receive public ministers, is an important instance of the right of the executive to decide upon the obligations of the country with regard to foreign nations. To apply it to the case of France, if there had been a treaty of alliance, offensive and defensive, between the United States and that country, the unqualified acknowledgment of the new government would have put the United States in a condition to become an associate in the war with France, and would have laid the Legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war.
This serves as an example of the right of the executive, in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of the power of the Legislature to declare war. Nevertheless, the executive cannot thereby control the exercise of that power. The Legislature is still free to perform its duties, according to its own sense of them; though the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decisions.
The division of the executive power in the Constitution creates a concurrent authority in the cases to which it relates.
Hence, in the instance stated, treaties can only be made by the President and Senate jointly; but their activity may be continued or suspended by the President alone.
No objection has been made to the President’s having acknowledged the republic of France, by the reception of its minister, without having consulted the Senate; though that body is connected with him in the making of treaties, and though the consequence of his act of reception is to give operation to those heretofore made with that country. But he is censured for having declared the United States to be in a state of peace and neutrality with regard to the Powers at war, because the right of changing that state, and declaring war, belongs to the Legislature.
It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general “executive power” vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.
While, therefore, the Legislature can alone declare war, can alone actually transfer the nation from a state of peace to a state of hostility, it belongs to the “executive power” to do whatever else the law of nations, co-operating with the treaties of the country, enjoin in the intercourse of the United States with foreign Powers.
In this distribution of authority, the wisdom of our Constitution is manifested. It is the province and duty of the executive to preserve to the nation the blessings of peace. The Legislature alone can interrupt them by placing the nation in a state of war.
But though it has been thought advisable to vindicate the authority of the executive on this broad and comprehensive ground, it was not absolutely necessary to do so. That clause of the Constitution which makes it his duty to “take care that the laws be faithfully executed,” might alone have been relied upon, and this simple process of argument pursued:
The President is the Constitutional executor of the laws. Our treaties, and the laws of nations, form a part of the law of the land. He who is to execute the laws must first judge for himself of their meaning. In order to the observance of that conduct which the laws of nations, combined with our treaties, prescribed to this country, in reference to the present war in Europe, it was necessary for the President to judge for himself, whether there was any thing in our treaties incompatible with an adherence to neutrality. Having decided that there was not, he had a right, and if in his opinion the interest of the nation required it, it was his duty as executor of the laws, to proclaim the neutrality of the nation, to exhort all persons to observe it, and to warn them of the penalties which would attend its non-observance.
The proclamation has been represented as enacting some new law. This is a view of it entirely erroneous. It only proclaims a fact, with regard to the existing state of the nation; informs the citizens of what the laws previously established require of them in that state, and notifies them that these laws will be put in execution against the infractors of them.
July 3, 1793.
The second and principal objection to the proclamation, namely, that it is inconsistent with the treaties between the United States and France, will now be examined.
It has been already shown that it does not militate against the performance of any of the stipulations in those treaties, which would not make us an associate or party in the war, and especially that it does not interfere with the privileges secured to France by the seventeenth and twenty-second articles of the treaty of commerce, which, except the clause of guaranty, constitute the most material discriminations to be found in our treaties in favor of that country.
Official documents have likewise appeared in the public papers, which serve as a comment upon the sense of the proclamation in this particular, proving that it was not deemed by the executive incompatible with the performance of the stipulations in those articles, and that in practice they are intended to be observed.
It has, however, been admitted that the declaration of neutrality excludes the idea of an execution of the clause of guaranty.
It becomes necessary, therefore, to examine whether the United States would have a valid justification for not complying with it, in case of their being called upon for that purpose by France.
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 alliance. The words of that article are as follows: “The essential and direct and of the present defensive alliance is to maintain effectually the liberty, sovereignty, and independence, absolute and unlimited, of the United 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.
The principal question consequently is: What is the nature and effect of a defensive alliance? When does the casus fÆderis 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 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 defensive, 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 Powers with whom she was at war, at the time of issuing the proclamation.
No position is better established than that the nation which 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 Burlemaqui.1
“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, etc.”
“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.”
“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 fÆderis, or condition of our guaranty, cannot take place; and that the United States are free to refuse a performance of that guaranty 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 aggressions 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 alliance, 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.
This 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.
Some writers indeed of high authority affirm, that it is a tacit condition of every alliance, that one ally is not bound to assist the other in a war manifestly unjust. But this is questioned by other respectable authorities on the ground which has been stated. And though the manifest injustice of the war has been affirmed by some to be a good cause for not executing the formal obligations of a treaty, I have nowhere seen it maintained that the abstract justice of a war will of itself oblige a nation to do what its formal obligations do not enjoin: if this however were not the true doctrine, an impartial examination would prove that with respect to some of the Powers, France is not blameless in the circumstances which preceded and led to the war; that if she received, she also gave, causes of offence; and that the justice of the war, on her side, is in those cases not a little problematical.
There are prudential reasons which dissuade from going largely into this examination, unless it shall be rendered necessary by the future turn of the discussion.
It will be sufficient here to notice cursorily the following facts:
France committed an aggression upon Holland, in declaring the navigation of the Scheldt free, and acting upon that declaration; contrary to treaties in which she had explicitly acknowledged, and even guaranteed, the exclusive right of Holland to the use of that river; and contrary also to the doctrines of the best writers, and the established usages of nations in such cases.
She gave a general and very serious cause of alarm and umbrage by the decree of the 19th of November, 1792, whereby the convention, in the name of the French nation, declare, that they will grant fraternity and assistance to every people who wish to recover their liberty; and charge the executive power to send the necessary orders to the generals to give assistance to such people, and to defend those citizens who have been, or who may be, vexed for the cause of liberty; which decree was ordered to be printed in all languages.
This very extraordinary decree amounted exactly to what France herself had most complained of—an interference by one nation in the internal government of another.
When a nation has actually come to a resolution to throw off a yoke, under which it may have groaned, and to assert its liberties, it is justifiable and meritorious in another, to afford assistance to the one which has been oppressed, and is in the act of liberating itself; but it is not warrantable for any nation beforehand, to hold out a general invitation to insurrection and revolution, by promising to assist every people who may wish to recover their liberty, and to defend those citizens of every country who have been, or who may be, vexed for the cause of liberty; still less to commit to the generals of its armies, the discretionary power of judging when the citizens of a foreign country have been vexed for the cause for liberty by their own government.
For Vatel justly observes, as a consequence of the liberty and independence of nations, “that it does not belong to any foreign Power to take cognizance of the administration of a sovereign of another country, to set himself up as a judge of his conduct, or to oblige him to alter it.”
It had a natural tendency to disturb the tranquillity of nations, and to excite everywhere fermentation and revolt; it therefore justified neutral Powers, who were in a situation to be affected by it, in taking measures to repress the spirit by which it had been dictated.
But the principle of that decree received a more particular application to Great Britain, by some subsequent circumstances.
Among the proofs of this are two answers, which were given by the President of the National Convention, at a public sitting on the 28th of November, to two different addresses: one presented by a deputation from “The Society for Constitutional Information in London,” the other by a deputation of English and Irish citizens at Paris.
The following are extracts from these answers:
“The shades of Penn, of Hampden, and of Sidney hover over your heads; and the moment, without doubt, approaches, in which the French will bring congratulations to the National Convention of Great Britain.”
“Nature and principles draw towards us England, Scotland, and Ireland. Let the cries of friendship resound through the two republics.”—“Principles are waging war against tyranny, which will fall under the blows of philosophy. Royalty in Europe is either destroyed or on the point of perishing, on the ruins of feudality; and the declaration of rights placed by the side of thrones, is a devouring fire which will consume them.”—“Worthy Republicans, etc.”
Declarations of this sort cannot but be viewed as a direct application of the principle of the decree to Great Britain, and as an open patronage of a revolution in that country; a conduct which, proceeding from the head of the body that governed France, in the presence and on behalf of that body, was unquestionably an offence and injury to the nation to which it related.
The decree of the 15th of November is a further cause of offence to all the governments of Europe. By that decree, “the French nation declares, that it will treat as enemies the people who, refusing or renouncing liberty and equality, are desirous of preserving their prince and privileged castes, or of entering into an accommodation with them, etc.” This decree was little short of a declaration of war against all nations having princes and privileged classes.
The formal and definitive annexation to France of the territories over which her arms had temporarily prevailed, is another violation of just and moderate principles, into which the convention was betrayed by an intemperate zeal, if not by a culpable ambition; and of a nature to justify the jealousy and ill-will of every neighboring state.
The laws of nations give to a Power at war nothing more than a usufructuary or possessory right to the territories which it acquires; suspending the absolute property and dominion till a treaty of peace, or something equivalent, shall have ceded or relinquished the conquered territory to the conqueror. This rule is one of primary importance to the tranquillity and security of nations—facilitating an adjustment of their quarrels and the preservation of ancient limits.
But France, by incorporating with herself in several instances the territories she had acquired, violated that rule, and multiplied infinitely the obstacles to peace and accommodation. The doctrine that a nation cannot consent to its own dismemberment but in a case of extreme necessity, immediately attached itself to all the conquered territories; while the progressive augmentation of the dominions of the most powerful empire in Europe, on a principle not of temporary possession but of permanent acquisition, threatened the independence of all other countries, and gave to neighboring neutral Powers the justest cause of discontent and apprehension. It is a principle well agreed, and founded on substantial reasons, that whenever a particular state adopts maxims of conduct contrary to those generally established among nations, calculated to interrupt their tranquillity and to expose their safety, they may justifiably make common cause to resist and control the state which manifests a disposition so suspicious and exceptionable.
Whatever partiality may be entertained for the general object of the French Revolution, it is impossible for any well-informed or sober-minded man not to condemn the proceedings which have been stated, as repugnant to the rights of nations, to the true principles of liberty, to the freedom of opinion of mankind; or not to acknowledge as a consequence of this, that the justice of the war on the part of France, with regard to some of the Powers with which she is engaged, is from those causes questionable enough to free the United States from all embarrassment on that score, if indeed it be at all incumbent upon them to go into the inquiry.
The policy of a defensive alliance is so essentially distinct from that of an offensive one, that it is every way important not to confound their effects. The first kind has in view the prudent object of mutual defence, when either of the allies is involuntarily forced into a war by the attack of some third Power. The latter subjects the peace of each ally to the will of the other, and obliges each to partake in the other’s wars of policy and interest, as well as in those of safety and defence. To preserve their boundaries distinct, it is necessary that each kind should be governed by plain and obvious rules.
This would not be the case if, instead of taking as a guide the simple fact of who began the war, it was necessary to travel into metaphysical niceties about the justice or injustice of the causes which led to it.
Inasmuch also as the not furnishing a stipulated succor, when it is due, is itself a cause of war, it is very requisite that there should be some palpable criterion for ascertaining when it is due. This criterion, as before observed, in a defensive alliance is the commencement, or not, of the war by our ally as a mere matter of fact.
Other topics serving to illustrate the position that the United States are not bound to execute the clause of guaranty, are reserved for another paper.
july 6, 1793.
France, at the time of issuing the proclamation, was engaged in war with a considerable part of Europe, and likely to be embroiled with almost all the rest, without a single ally in that quarter of the globe.
In such a situation, it is evident, that however she may be able to defend herself at home, of which her factions and internal agitations furnish the only serious doubt, she cannot make external efforts in any degree proportioned to those which can be made against her.
This state of things alone discharges the United States from an obligation to embark in her quarrel.
It is known that we are wholly destitute of naval force. France, with all the great maritime powers united against her, is unable to supply this deficiency. She cannot afford us that species of co-operation which is necessary to render our efforts useful to her, and to prevent our experiencing the destruction of our trade, and the most calamitous inconveniences in other respects.
Our guaranty does not look to France herself. It does not relate to her immediate defence, but to the defence and preservation of her American colonies; objects of which she might be deprived, and yet remain a great, a powerful, and a happy nation.
In the actual situation of this country, and in relation to a matter of only secondary importance to France, it may fairly be maintained that an ability in her to supply in a competent degree, our deficiency of naval force, is a condition of our obligation to perform the guaranty on our part.
Had the United States a powerful marine, or could they command one in time, this reasoning would not be solid; but circumstanced as they are, it is presumed to be well founded.
There would be no proportion between the mischiefs and perils to which the United States would expose themselves, by embarking in the war, and the benefit which the nature of their stipulation aims at securing to France, or that which it would be in their power actually to render her by becoming a party.
This disproportion would be a valid reason for not executing the guaranty. All contracts are to receive a reasonable construction. Self-preservation is the first duty of a nation; and though in the performance of stipulations relating to war, good faith requires that its ordinary hazards should be fairly met, because they are directly contemplated by such stipulations, yet it does not require that extraordinary and extreme hazards should be run, especially where the object to be gained or secured is only a partial or particular interest of the ally, for whom they are to be encountered.
As in the present instance, good faith does not require that the United States should put in jeopardy their essential interests, perhaps their very existence, in one of the most unequal contests in which a nation could be engaged, to secure to France—what? Her West India islands and other less important possessions in America. For it is always to be remembered, that the stipulations of the United States do, in no event, reach beyond this point. If they were, upon the strength of their guaranty, to engage in the war, and could make any arrangement with the belligerent Powers, for securing to France those islands and those possessions, they would be at perfect liberty instantly to withdraw. They would not be bound to prosecute the war one moment longer.
They are under no obligation in any event, as far as the faith of treaties is concerned, to assist France in defence of her liberty; a topic on which so much has been said, so very little to the purpose, as it regards the present question.
The contest in which the United States would plunge themselves, were they to take part with France, would possibly be still more unequal than that in which France herself is engaged. With the possessions of Great Britain and Spain on both flanks, the numerous Indian tribes under the influence and direction of those Powers, along our whole interior frontier, with a long extended sea-coast, with no maritime force of our own, and with the maritime force of all Europe against us, with no fortifications whatever, and with a population not exceeding four millions; it is impossible to imagine a more unequal contest than that in which we should be involved in the case supposed. From such a contest we are dissuaded by the most cogent motives of self-preservation, no less than of interest.
We may learn from Vatel, one of the best writers on the laws of nations, that “if a state which has promised succors finds itself unable to furnish them, its very inability is its exemption; and if the furnishing the succors would expose it to an evident danger, this also is a lawful dispensation. The case would render the treaty pernicious to the state, and therefore not obligatory. But this applies to an imminent danger threatening the safety of the state; the case of such a danger is tacitly and necessarily reserved in every treaty.”1
If too, as no sensible and candid man will deny, the extent of the present combination against France is in a degree to be ascribed to imprudences on her part, the exemption to the United States is still more manifest and complete. No country is bound to partake in hazards of the most critical kind, which may have been produced or promoted by the indiscretion and intemperance of another. This is an obvious dictate of reason, with which the common sense and common practice of mankind coincide.
To the foregoing considerations, it may perhaps be added with no small degree of force, that military stipulations in national treaties contemplate only the ordinary case of foreign war, and are irrelative to the contests which grow out of revolutions of government, unless where they have express reference to a revolution begun, or where there is a guaranty of the existing constitution of a nation, or where there is a personal alliance for the defence of a prince and his family.1
The revolution in France is the primitive source of the war in which she is engaged. The restoration of the monarchy is the avowed object of some of her enemies, and the implied one of all. That question, then, is essentially involved in the principle of the war, a question certainly never in the contemplation of the government with which our treaty was made, and it may thence be fairly inferred, never intended to be embraced by it.
The inference is, that the United States fulfilled the utmost that could be claimed by the nation of France, when they so far respected its decision as to recognize the newly constituted authorities, giving operation to the treaty of alliance for future occasions, but considering the present war as a tacit exception. Perhaps, too, this exception is in other respects due to the circumstances under which the engagements between the two countries were contracted. It is impossible, prejudice apart, not to perceive a delicate embarrassment between the theory and fact of our political relations to France.
On these grounds, also, as well as that of the present war being offensive on the side of France, the United States have valid and honorable pleas to offer against the execution of the guaranty if it should be claimed by France; and the President was in every view fully justified in pronouncing that the duty and interest of the United States dictated a neutrality in the war.
July 10, 1793.
A third objection to the proclamation is, that it is inconsistent with the gratitude due to France for the services rendered to us in our revolution.
Those who make this objection disavow, at the same time, all intention to maintain the position that the United States ought to take part in the war. They profess to be friends to our remaining at peace. What then do they mean by the objection?
If it be no breach of gratitude to refrain from joining France in the war, how can it be a breach of gratitude to declare that such is our disposition and intention?
The two positions are at variance with each other; and the true inference is, either that those who make the objection really wish to engage this country in the war, or that they seek a pretext for censuring the conduct of the Chief Magistrate, for some purpose very different from the public good.
They endeavor in vain to elude this inference by saying that the proclamation places France upon an equal footing with her enemies, while our treaties require distinctions in her favor, and our relative situation would dictate kind offices to her, which ought not to be granted to her adversaries.
They are not ignorant that the proclamation is reconcilable with both those objects, as far as they have any foundation in truth or propriety.
It has been shown that the promise of “a friendly and impartial conduct” toward all the belligerent Powers is not incompatible with the performance of any stipulations in our treaties, which would not include our becoming an associate in the war; and it has been observed that the conduct of the executive, in regard to the seventeenth and twenty-second articles of the treaty of commerce, is an unequivocal comment upon the terms. They were, indeed, naturally to be understood, with the exception of those matters of positive compact, which would not amount to taking part in the war; for a nation then observes a friendly and impartial conduct toward two contending Powers, when it only performs to one of them what it is obliged to do by stipulations and antecedent treaties, which do not constitute a participation in the war.
Neither do those expressions imply that the United States will not exercise their discretion in doing kind offices to some of the parties, without extending them to others, so long as they have no relation to war; for kind offices of that description may, consistently with neutrality, be shown to one party and refused to another.
If the objectors mean that the United States ought to favor France, in things relating to war, and where they are not bound to do it by treaty, they must in this case also abandon their pretension of being friends to peace. For such a conduct would be a violation of neutrality, which could not fail to produce war.
It follows then, that the proclamation is reconcilable with all that those who censure it contend for; taking them upon their own ground, that nothing is to be done incompatible with the preservation of peace.
But though this would be a sufficient answer to the objection under consideration, yet it may not be without use to indulge some reflections on this very favorite topic of gratitude to France, since it is at this shrine that we are continually invited to sacrifice the true interests of the country; as if “all for love, and the world well lost,” were a fundamental maxim in politics.
Faith and justice between nations are virtues of a nature the most necessary and sacred. They cannot be too strongly inculcated, nor too highly respected. Their obligations are absolute, their utility unquestionable; they relate to objects which, with probity and sincerity, generally admit of being brought within clear and intelligible rules.
But the same cannot be said of gratitude. It is not very often that between nations it can be pronounced with certainty that there exists a solid foundation for the sentiment; and how far it can justifiably be permitted to operate, is always a question of still greater difficulty.
The basis of gratitude is a benefit received or intended, which there was no right to claim, originating in a regard to the interest or advantage of the party on whom the benefit is, or is meant to be, conferred. If a service is rendered from views relative to the immediate interest of the party who performs it, and is productive of reciprocal advantages, there seems scarcely, in such a case, to be an adequate basis for a sentiment like that of gratitude.
The effect at least would be wholly disproportioned to the cause, if such a service ought to beget more than a disposition to render in turn a correspondent good office, founded on mutual interest and reciprocal advantage. But gratitude would require much more than this: it would exact to a certain extent even a sacrifice of the interest of the party obliged to the service or benefit of the one by whom the obligation had been conferred.
Between individuals, occasion is not unfrequently given for the exercise of gratitude. Instances of conferring benefits from kind and benevolent dispositions or feelings toward the person benefited, without any other interest on the part of the person who renders the service, than the pleasure of doing a good action, occur every day among individuals. But among nations they perhaps never occur. It may be affirmed as a general principle, that the predominant motive of good offices from one nation to another, is the interest or advantage of the nation which performs them.
Indeed, the rule of morality in this respect is not precisely the same between nations as between individuals. The duty of making its own welfare the guide of its action, is much stronger upon the former than upon the latter; in proportion to the greater magnitude and importance of national compared with individual happiness, and to the greater permanency of the effects of national than of individual conduct. Existing millions, and for the most part future generations, are concerned in the present measures of a government; while the consequences of the private actions of an individual ordinarily terminate with himself, or are circumscribed within a narrow compass.
Whence it follows that an individual may, on numerous occasions, meritoriously indulge the emotions of generosity and benevolence, not only without an eye to, but even at the expense of, his own interest. But a government can rarely, if at all, be justifiable in pursuing a similar course; and, if it does so, ought to confine itself within much stricter bounds.1 Good offices which are indifferent to the interest of a nation performing them, or which are compensated by the existence or expectation of some reasonable equivalent, or which produce an essential good to the nation to which they are rendered, without real detriment to the affairs of the benefactors, prescribe perhaps the limits of national generosity or benevolence.
It is not here meant to recommend a policy absolutely selfish or interested in nations; but to show, that a policy regulated by their own interest, as far as justice and good faith permit, is, and ought to be, their prevailing one; and that either to ascribe to them a different principle of action, or to deduce, from the supposition of it, arguments for a self-denying and self-sacrificing gratitude on the part of a nation which may have received from another good offices, is to misrepresent or misconceive what usually are, and ought to be, the springs of national conduct.
These general reflections will be auxiliary to a just estimate of our real situation with regard to France, of which a closer view will be taken in a succeeding paper.
July 13, 1793.
France, the rival, time immemorial, of Great Britain, had, in the course of the war which ended in 1763, suffered from the successful arms of the latter the severest losses and the most mortifying defeats. Britain from that moment had acquired an ascendant in the affairs of Europe, and in the commerce of the world, too decided and too humiliating to be endured without extreme impatience, and an eager desire of finding a favorable opportunity to destroy it, and to repair the breach which had been made in the national glory. The animosity of wounded pride conspired with calculations of interest to give a keen edge to that impatience, and to that desire.
The American revolution offered the occasion. It early attracted the notice of France, though with extreme circumspection. As far as countenance and aid may be presumed to have been given prior to the epoch of the acknowledgment of our independence, it will be no unkind derogation to assert, that they were marked neither with liberality nor with vigor; that they wore the appearance rather of a desire to keep alive disturbances which might embarrass a rival, than of a serious design to assist a revolution, or a serious expectation that it could be effected.
The victories of Saratoga, the capture of an army, which went a great way toward deciding the issue of the contest, decided also the hesitations of France. They established in the government of that country a confidence of our ability to accomplish our purpose, and, as a consequence of it, produced the treaties of alliance and commerce.
It is impossible to see in all this any thing more than the conduct of a jealous competitor, embracing a most promising opportunity to repress the pride and diminish the power of a dangerous rival, by seconding a successful resistance to its authority, with the object of lopping off a valuable portion of its dominions. The dismemberment of this country from Great Britain was an obvious and a very important interest of France. It cannot be doubted that it was both the determining motive and an adequate compensation for the assistance afforded to us.
Men of sense, in this country, derived encouragement to the part which their zeal for liberty prompted them to take in our revolution, from the probability of the co-operation of France and Spain. It will be remembered that this argument was used in the publications of the day; but upon what was it bottomed? Upon the known competition between those nations and Great Britain, upon their evident interest to reduce her power and circumscribe her empire; not certainly from motives of regard to our interest, or of attachment to our cause. Whoever should have alleged the latter, as the grounds of the expectation held out, would have been then justly considered as a visionary or a deceiver. And whoever shall now ascribe to such motives the aid which we did receive, would not deserve to be viewed in a better light.
The inference from these facts is not obscure. Aid and co-operation, founded upon a great interest, pursued and obtained by the party rendering them, is not a proper stock upon which to engraft that enthusiastic gratitude which is claimed from us by those who love France more than the United States.
This view of the subject, extorted by the extravagancy of such a claim, is not meant to disparage the just pretensions of France to our good-will. Though neither in the motives to the succors which the furnished, nor in their extent (considering how powerfully the point of honor, in such war, reinforced the considerations of interest when she was once engaged), can be found a sufficient basis for that gratitude which is the theme of so much declamation, yet we shall find, in the manner of affording them, just cause for our esteem and friendship.
France did not attempt, in the first instance, to take advantage of our situation to extort from us any humiliating or injurious concessions as the price of her assistance; nor afterwards, in the progress of the war, to impose hard terms as the condition of particular aids.
Though this course was certainly dictated by policy, yet it was a magnanimous policy, such as always constitutes a title to the approbation and esteem of mankind, and a claim to the friendship and acknowledgment of the party in whose favor it is practised.
But these sentiments are satisfied on the part of the nation, when they produce sincere wishes for the happiness of the party from whom it has experienced such conduct, and a cordial disposition to render all good and friendly offices which can be rendered without prejudice to its own solid and permanent interests.
To ask of a nation so situated, to make a sacrifice of substantial interest; to expose itself to the jealousy, ill-will, or resentment of the rest of the world; to hazard, in an eminent degree, its own safety for the benefit of the party who may have observed towards it the conduct which has been described, would be to ask more than the nature of the case demands, more than the fundamental maxims of society authorize, more than the dictates of sound reason justify.
A question has arisen, with regard to the proper object of that gratitude which is so much insisted upon: whether it be the unfortunate prince by whom the assistance received was given, or the nation of whom he was the chief or the organ? It is extremely interesting to the national justice, to form right conceptions on this point.
The arguments which support the latter idea are as follows:
“Louis the ⅩⅥ. was but the constitutional agent of the French people. He acted for and on behalf of the nation; it was with their money and their blood he supported our cause. It is to them, therefore, not to him, that our obligations are due. Louis the ⅩⅥ., in taking our part, was no doubt actuated by state policy. An absolute prince could not love liberty. But the people of France patronized our cause with zeal, from sympathy in its object. The people, therefore, not its monarch, are entitled to our sympathy.”
This reasoning may be ingenious, but it is not founded in nature or fact.
Louis the ⅩⅥ., though no more than the constitutional agent of the nation, had at the time the sole power of managing its affairs, the legal right of directing its will and its force. It belonged to him to assist us, or not, without consulting the nation; and he did assist without such consultation. His will alone was active; that of the nation passive. If there was kindness in the decision, demanding a return of goodwill, it was the kindness of Louis the ⅩⅥ.—his heart was the depository of the sentiment. Let the genuine voice of nature, then, unperverted by political subtleties, pronounce whether the acknowledgment, which may be due for that kindness can be equitably transferred from him to others who had no share in the decision; whether the principle of gratitude ought to determine us to behold with indifference his misfortunes, and with satisfaction the triumphs of his foes.
The doctrine, that the prince is the organ of his nation, is conclusive to enforce the obligations of good faith between two states—in other words, the observance of duties stipulated in treaties for national purposes; and it will even suffice to continue to a nation a claim to the friendship and good-will of another, resulting from friendly offices done by its prince; but it would be to carry the principle much too far, and to render it infinitely too artificial, to attribute to it the effect of transferring such a claim from the prince to the nation, by way of opposition and contrast. Friendship, good-will, gratitude for favors received, have so inseparable a reference to the motives with which, and to the persons by whom, they were rendered, as to be incapable of being transferred to another at his expense.
But Louis the ⅩⅥ., it is said, acted from reasons of state, without regard to our cause, while the people of France patronized it with zeal and attachment.
As far as the assertion with regard to the monarch may be well founded, and is an objection to our gratitude to him, it destroys the whole fabric of gratitude to France. For our gratitude is, and must be, relative to the services performed. The nation can only claim it on the score of their having been rendered by their agent with their means. If the views with which he performs them divested them of the merit which ought to inspire gratitude, none is due. The nation no more than their agent can claim it.
With regard to the individual good wishes of the citizens of France, as they did not produce the services rendered to us as a nation, they can be no foundation for national gratitude. They can only call for a reciprocation of individual good wishes. They cannot form the basis of public obligation.
But the assertion takes more for granted than there is reason to believe true.
Louis the ⅩⅥ. no doubt took part in our contest from reasons of state; but Louis the ⅩⅥ. was a man, humane and kind-hearted. The acts of his early youth had entitled him to this character. It is natural for a man of this disposition to become interested in the cause of those whom he protects or aids; and if the concurrent testimony of the period may be credited, there was no man in France more personally friendly to the cause of this country than Louis ⅩⅥ. I am much misinformed if repeated declarations of the venerable Franklin did not attest this fact.
It is a just tribute to the people of France to admit that they manifested a lively interest in the cause of America; but while motives are scanned, who can say how much of it is to be ascribed to the antipathy which they bore to their rival neighbor—how much to their sympathy in the object of our pursuit? It is certain that the love of liberty was not a national sentiment in France when a zeal for our cause first appeared among that people.
There is reason to believe, too, that the attachment to our cause, which ultimately became very extensive, if not general, did not originate with the mass of the French people. It began with the circles more immediately connected with the court, and was thence diffused through the nation.
This observation, besides its tendency to rectify ideas which are calculated to give a false current to the public feeling, may serve to check the spirit of illiberal invective, which has been wantonly indulged against those distinguished friends of America, who, though the authors of the French revolution, have fallen victims to it; because their principles would not permit them to go the whole length of an entire subversion of the monarchy.
The preachers of gratitude are not ashamed to brand Louis the ⅩⅥ. as a tyrant, La Fayette as a traitor. But how can we wonder at this, when they insinuate a distrust even of a—!!!
In urging the friendly disposition to our cause, manifested by the people of France, as a motive to our gratitude towards that people, it ought not to be forgotten, that those dispositions were not confined to the inhabitants of that country. They were eminently shared by the people of the United Provinces, produced to us valuable pecuniary aids from their citizens, and eventually involved them in the war on the same side with us. It may be added, too, that here the patronage of our cause emphatically began with the mass of the community, not originating as in France with the government, but finally implicating the government in the consequences.
Our cause had also numerous friends in other countries—even in that with which we were at war. Conducted with prudence, moderation, justice, and humanity, it may be said to have been a popular cause among mankind, conciliating the countenance of princes and the affection of nations.
The dispositions of the individual citizens of France can therefore in no sense be urged, as constituting a peculiar claim to our gratitude. As far as there is foundation for it, it must be referred to the services rendered to us, and, in the first instance, to the unfortunate monarch that rendered them. This is the conclusion of nature and reason.
July 17, 1793.
The very men who not long since, with a holy zeal, would have been glad to make an auto da fé of any one who should have presumed to assign bounds to our obligations to Louis the ⅩⅥ., are now ready to consign to the flames those who venture even to think that he died a proper object of our sympathy or regret. The greatest pains are taken to excite against him our detestation. His supposed perjuries and crimes are sounded in the public ear, with all the exaggerations of intemperate declaiming. All the unproved and contradicted allegations which have been brought against him are taken for granted, as the oracles of truth, on no better grounds than the mere general presumptions: that he could not have been a friend to a revolution which stripped him of so much power; that it is not likely the convention would have pronounced him guilty, and consigned him to so ignominious a fate, if he had been really innocent.
It is possible that time may disclose facts and proofs which will substantiate the guilt imputed to Louis; but these facts and proofs have not yet been authenticated to the world, and justice admonishes us to wait for their production and authentication.
Those who have most closely attended to the course of the transaction find least cause to be convinced of the criminality of the deceased monarch. While his counsel, whose characters give weight to their assertions, with an air of conscious truth, boldly appeal to facts and proofs, in the knowledge and possession of the convention, for the refutation of the charges brought against him, the members of that body, in all the debates upon the subject which have reached this country, either directly from France, or circuitously through England, appear to have contented themselves with assuming the existence of the facts charged, and inferring from them a criminality which, after the abolition of the royalty, they were interested to establish.
The presumption of guilt drawn from the suggestions which have been stated is more than counter-balanced by an opposite one, which is too obvious not to have occurred to many, though I do not recollect yet to have met with it in print. It is this:
If the convention had possessed clear evidence of the guilt of Louis, they would have promulgated it to the world in an authentic and unquestionable shape. Respect for the opinion of mankind, regard for their own character, the interest of their cause, made this an indispensable duty; nor can the omission be satisfactorily ascribed to any other reason than the want of such evidence.
The inference is, that the melancholy catastrophe of Louis ⅩⅥ. was the result of a supposed political expediency, rather than of real criminality.
In a case so circumstanced, does it, can it consist with our justice or our humanity, to partake in the angry and vindictive passions which it is endeavored to excite against the unfortunate monarch? Was it a crime in him to have been born a prince? Could this circumstance forfeit his title to the commiseration due to his misfortunes as a man?
Would gratitude dictate to a people, situated as are the people of this country, to lend their aid to extend to the son the misfortunes of the father? Should we not be more certain of violating no obligation of that kind, and of not implicating the delicacy of our national character, by taking no part in the contest, than by throwing our weight into either scale?
Would not a just estimate of the origin and progress of our relations to France, viewed with reference to the mere question of gratitude, lead us to this result—that we ought not to take part against the son and successor of a father, on whose sole will depended the assistance which we received; that we ought not to take part with him against the nation, whose blood and whose treasure had been, in the hands of the father, the means of that assistance?
But we are sometimes told, by way of answer, that the cause of France is the cause of liberty; and that we are bound to assist the nation on the score of their being engaged in the defence of that cause. How far this idea ought to carry us, will be the subject of future examination.
It is only necessary here to observe that it presents a question essentially different from that which has been in discussion. If we are bound to assist the French nation, on the principle of their being embarked in the defence of liberty, this is a consideration altogether foreign to that of gratitude. Gratitude has reference only to kind offices received. The obligation to assist the cause of liberty must be deduced from the merits of that cause and from the interest we have in its support. It is possible that the benefactor may be on one side; the defenders and supporters of liberty on the other. Gratitude may point one way, the love of liberty another. It is therefore important to just conclusions, not to confound the two things.
A sentiment of justice, more than the importance of the question itself, has led to so particular a discussion respecting the proper object of whatever acknowledgment may be due from the United States, for the aid which they received from France during their own revolution.
The extent of the obligation which it may impose is by far the most interesting inquiry. And though it is presumed, that enough has been already said to evince, that it does in no degree require us to embark in the war, yet there is another and a very simple view of the subject, which is too convincing to be omitted.
The assistance derived from France was afforded by a great and powerful nation, possessing numerous armies, a respectable fleet, and the means of rendering it a match for the force to be encountered. The position of Europe was favorable to the enterprise; a general disposition prevailing to see the power of Britain abridged. The co-operation of Spain was very much a matter of course, and the probability of other Powers becoming engaged on the same side not remote. Great Britain was alone, and likely to continue so; France had a great and persuasive interest in the separation of this country from her. In this situation, with much to hope and little to fear, she took part in our quarrel.
France is at this time singly engaged with the greatest part of Europe, including all the first-rate Powers except one; and in danger of being engaged with the rest. To use the emphatic language of a member of the national convention, she has but one enemy, and that is all Europe. Her internal affairs are, without doubt, in serious disorder; her navy comparatively inconsiderable. The United States are a young nation: their population, though rapidly increasing, still small; their resources, through growing, not great; without armies, without fleets; capable, from the nature of the country and the spirit of its inhabitants, of immense exertions for self-defence, but little capable of those external efforts which could materially serve the cause of France. So far from having any direct interest in going to war, they have the strongest motives of interest to avoid it. By embarking with France in the war, they would have incomparably more to apprehend than to hope.
This contrast of situations and inducements is alone a conclusive demonstration, that the United States are not under an obligation, from gratitude, to join France in the war. The utter disparity between the circumstances of the service to be rendered, and of the service received, proves that the one cannot be an adequate basis of obligation for the other. There would be a manifest want of equality, and consequently of reciprocity.
But complete justice would not be done to this question of gratitude, were no notice to be taken of the address which has appeared in the public papers (the authenticity of which has not been impeached), from the convention of France to the United States, announcing the appointment of the present Minister Plenipotentiary. In that address the convention informs us, that “the support which the ancient French court had afforded the United States to recover their independence, was only the fruit of a base speculation; and that their glory offended its ambitious views, and the ambassadors of France bore the criminal orders of stopping the career of their prosperity.”
If this information is to be admitted in the full force of the terms, it is very fatal to the claim of gratitude toward France. An observation similar to one made in a former paper occurs here. If the organ of the nation, on whose will the aid which was given depended, acted not only from motives irrelative to our advantage, but from unworthy motives, or, as is alleged, from a base speculation; if afterward he displayed a temper hostile to the confirmation of our security and prosperity, he acquired no title to our gratitude in the first instance, or he forfeited it in the second. And the people of France, who can only demand it in virtue of the conduct of their agent, must together with him, renounce the pretension. It is an obvious principle, that if a nation can claim merit from the good deeds of its sovereign, it must answer for the demerit of his misdeeds.
But some deductions are to be made from the suggestions in the address of the convention, on account of the motives which evidently dictated the communication. Their zeal to alienate the good-will of this country from the late monarch, and to increase the odium of the French nation against the monarchy, which was so ardent as to make them overlook the tendency of their communication to deprive their votaries among us of the plea of gratitude, may justly be suspected of exaggeration.
The truth probably is, that the base speculation charged, amounts to nothing more than that the government of France, in affording us assistance, was actuated by the motives which have been attributed to it, namely, the desire of promoting the interest of France, by lessening the power of Great Britain, and opening a new channel of commerce to herself; that the orders said to have been given to the ambassadors of France, to stop the career of our prosperity, are resolvable into a speculative jealousy of the ministers of the day, lest the United States, by becoming as powerful and great as they are capable of being under an efficient government, might prove formidable to the European possessions in America. With these qualifications, the address offers no new discovery to the intelligent and unbiassed friends of their country. They knew long ago, that the interest of France had been the governing motive of the aid afforded; and they saw clearly enough in the conversation and conduct of her agents, while the present Constitution of the United States was under consideration, that the government, of which they were the instruments, would have preferred our remaining under the old form. They perceived, also, that these views had their effect upon some of the devoted partisans of France among ourselves; as they now perceive, that the same characters are embodying, with all the aid they can obtain, under the same banner, to resist the operation of that government of which they withstood the establishment.
All this was and is seen, and the body of the people of America are too discerning to be long in the dark about it; too wise to have been misled by foreign or domestic machinations, they adopted a Constitution which was necessary to their safety and to their happiness; too wise still to be ensnared by the same machinations, they will support the government they have established, and will take care of their own peace, in spite of the insidious efforts which are employed to detach them from the one and to disturb the other.
The information which the address of the convention contains ought to serve as an instructive lesson to the people of this country. It ought to teach us not to overrate foreign friendships, and to be upon our guard against foreign attachments. The former will generally be found hollow and delusive; the latter will have a natural tendency to lead us aside from our own true interest, and to make us the dupes of foreign influence. Both serve to introduce a principle of action which in its effects, if the expression may be allowed, is anti-national. Foreign influence is truly the Grecian horse to a republic. We cannot be too careful to exclude its entrance. Nor ought we to imagine that it can only make its approaches in the gross form of direct bribery. It is then most dangerous when it comes under the patronage of our passions, under the auspices of national prejudice and partiality.
I trust the morals of this country are yet too good to leave much to be apprehended on the score of bribery. Caresses, condescensions, flattery, in unison with our prepossessions, are infinitely more to be feared; and as far as there is opportunity for corruption, it is to be remembered that one foreign Power can employ this resource as well as another, and that the effect must be much greater when it is combined with other means of influence than where it stands alone.
July 20, 1793.
The remaining objection to the proclamation of neutrality still to be discussed is, that it was out of time and unnecessary.
To give color to this objection it is asked, why did not the proclamation appear when the war commenced with Austria and Prussia? Why was it forborne till Great Britain, Holland, and Spain became engaged? Why did not the government wait till the arrival at Philadelphia of the minister of the French Republic? Why did it volunteer a declaration not required of it by any of the belligerent parties?
To most of these questions, solid answers have already appeared in the public prints; little more can be done than to repeat and enforce them.
Austria and Prussia are not maritime powers. Contraventions of neutrality as against them were not likely to take place to any extent, or in a shape that would attract their notice. It would, therefore, have been useless, if not ridiculous, to have made a formal declaration on the subject, while they were the only parties opposed to France.
But the reverse of this is the case with regard to Spain, Holland, and England. These are all commercial and maritime nations. It was to be expected that their attentions would be immediately drawn toward the United States with sensibility, and even with jealousy. It was to be feared that some of our citizens might be tempted by the prospect of gain to go into measures which would injure them, and hazard the peace of the country. Attacks by some of these Powers upon the possessions of France in America were to be looked for as a matter of course. While the views of the United States as to that particular were problematical, they would naturally consider us as a Power that might become their enemy. This they would have been the more apt to do on account of these public demonstrations of attachment to the cause of France, of which there has been so prodigal a display. Jealousy, everybody knows, especially if sharpened by resentment, is apt to lead to ill treatment; ill treatment, to hostility.
In proportion to the probability of our being regarded with a suspicious, and consequently an unfriendly, eye by the Powers at war with France; in proportion to the danger of imprudences being committed by any of our citizens, which might occasion a rupture with them, the policy on the part of the government, of removing all doubt as to its own disposition, and of deciding the condition of the United States, in the view of the parties concerned, became obvious and urgent.
Were the United States now, what, if we do not rashly throw away the advantages we possess, they may expect to be in fifteen or twenty years, there would have been more room for an insinuation which has been thrown out, namely, that they ought to have secured to themselves some advantage as the consideration of their neutrality,—an idea, however, the justice and magnanimity of which cannot be commended. But in their present situation, with their present strength and resources, an attempt of that kind could have only served to display pretensions at once excessive and unprincipled. The chance of obtaining any collateral advantage, if such a chance there was, by leaving doubt of their intentions as to peace or war, could not wisely have been put, for a single instant, in competition with the tendency of a contrary conduct to secure our peace.
The conduciveness of the delcaration of neutrality to that end was not the only recommendation to the adoption of the measure. It was of great importance that our own citizens should understand, as soon as possible, the opinion which the government entertained of the nature of our relations to the warring parties, and of the propriety or expediency of our taking a side or remaining neuter. The arrangements of our merchants could not but be very differently affected by the one hypothesis or the other; and it would necessarily have been very detrimental and perplexing to them to have been left in uncertainty.
It is not requisite to say how much our agriculture and other interests would have been likely to have suffered by embarrassments to our merchants.
The idea of its having been incumbent on the government to delay the measure for the arrival of the minister of the French republic, is as absurd as it is humiliating. Did the executive stand in need of the logic of a foreign agent to enlighten it as to the duties or interests of the nation? Or was it bound to ask his consent to a step which appeared to itself consistent with the former, and conducive to the latter?
The sense of our treaties was to be learnt from the instruments themselves. It was not difficult to pronounce beforehand that we had a greater interest in the preservation of peace, than in any advantages with which France might tempt our participation in the war. Commercial privileges were all that she could offer of real value in our estimation, and a carte blanche on this head would have been an inadequate recompense for renouncing peace, and committing ourselves voluntarily to the chances of so precarious and perilous a war. Besides, if the privileges which might have been conceded were not founded in a real, permanent, mutual interest, of what value would be the treaty that should concede them? Ought not the calculation, in such case, to be upon a speedy resumption of them, with perhaps a quarrel as the pretext? On the other hand, may we not trust that commercial privileges, which are truly founded in mutual interest, will grow out of that interest, without the necessity of giving a premium for them at the expense of our peace?
To what purpose, then, was the executive to have waited for the arrival of the minister? Was it to give opportunity to contentious discussions, to intriguing machinations, to the clamors of a faction won to a foreign interest?
Whether the declaration of neutrality issued upon or without the requisition of any of the belligerent Powers, can only be known to their respective ministers, and to the proper officers of our government. But if it be true that it issued without any such requisition, it is an additional indication of the wisdom of the measure.
It is of much importance to the end of preserving peace, that the belligerent nations should be thoroughly convinced of the sincerity of our intentions to observe the neutrality we profess; and it cannot fail to have weight in producing this conviction, that the declaration of it was a spontaneous act, not stimulated by any requisition on the part of either of them, but proceeding purely from our own view of our duty and interest.
It was not surely necessary for the government to wait for such a requisition, while there are were advantages, and no disadvantages, in anticipation. The benefit of an early notification to our merchants conspired with the consideration just mentioned to recommend the course which was pursued.
If, in addition to the rest, the early manifestation of the views of the government has had any effect in fixing the public opinion on the subject, and in counteracting the success of the efforts which, it was to be foreseen, would be made to distract and disunite, this alone would be a great recommendation of the policy of having suffered no delay to intervene.
What has been already said, in this and in preceding papers, affords a full answer to the suggestion that the proclamation was unnecessary. It would be a waste of time to add more.
But there has been a criticism several times repeated, which may deserve a moment’s attention. It has been urged that the proclamation ought to have contained some reference to our treaties; and that the generality of the promise to observe a conduct friendly and impartial towards the belligerent Powers, ought to have been qualified with expressions equivalent to these, “as far as may consist with the treaties of the United States.”
The insertion of such a clause would have entirely defeated the object of a proclamation, by rendering the intention of the government equivocal. That object was to assure the Powers at war, and our own citizens, that in the opinion of the executive it was consistent with the duty and interest of the nation to observe neutrality, and that it was intended to pursue a conduct corresponding with that opinion. Words equivalent to those contended for would have rendered the other part of the declaration nugatory, by leaving it uncertain whether the executive did or did not believe a state of neutrality to be consistent with our treaties. Neither foreign Powers nor our own citizens would have been able to have drawn any conclusion from the proclamation, and both would have had a right to consider it as a mere equivocation.
By not inserting any such ambiguous expressions, the proclamation was susceptible of an intelligible and proper construction. While it denoted on the one hand that, in the judgment of the executive, there was nothing in our treaties obliging us to become a party in the war, it left it to be expected, on the other, that all stipulations compatible with neutrality, according to the laws and usages of nations, would be enforced. It follows that the proclamation was, in this particular, exactly what it ought to have been.
The words, “make known the disposition of the United States,” have also given a pretext for cavil. It has been asked, how could the President undertake to declare the disposition of the United States? The people, for aught he knew, may have a very different sentiment. Thus, a conformity with republican propriety and modesty is turned into a topic of accusation.
Had the President announced his own disposition, he would have been chargeable with egotism, if not presumption. The constitutional organ of intercourse between the United States and foreign nations, whenever he speaks to them, it is in that capacity; it is in the name and on the behalf of the United States. It must, therefore, be with greater propriety that he speaks of their disposition than of his own.
It is easy to imagine that occasions frequently occur in the communications to foreign governments and foreign agents, which render it necessary to speak of the friendship or friendly disposition of the United States, of their disposition to cultivate harmony and good understanding, to reciprocate neighborly offices, and the like. It is usual, for example, when public ministers are received, for some complimentary expressions to be interchanged. It is presumable that the late reception of the French minister did not pass without some assurance on the part of the President of the friendly disposition of the United States towards France. Admitting it to have happened, would it be deemed an improper arrogation? If not, why was it more so, to declare the disposition of the United States to observe a neutrality in the existing war?
In all such cases, nothing more is to be understood than an official expression of the political disposition of the nation, inferred from its political relations, obligations, and interests. It is never to be supposed that the expression is meant to convey the precise state of the individual sentiments or opinions of the great mass of the people.
Kings and princes speak of their own dispositions, the magistrates of republics of the dispositions of their nations. The President, therefore, has evidently used the style adapted to his situation, and the criticism upon it is plainly a cavil.
This speech was delivered in Congress during the debate on the treaty of peace which concluded the war for independence.—See Madison Papers, i., 394.
See Madison Papers, i., 411.
These two speeches show that Hamilton’s natural inclination was toward France, a significant commentary on Jefferson’s pet accusation that Hamilton was “British” in feeling.
These letters are inserted here because they are largely devoted to a discussion of the treaty with England, and our relations with that country. Feeling in New York against those who had been Tories ran very high and Clinton threw all his weight into the scale against them. Bills were introduced to disfranchise them forever, and to confiscate their property; while there was still another to confiscate the property of the Society for the Propagation of the Gospel. Against these measures, which were in violation of the treaty and of a good and generous policy, Hamilton determined to protest, and in order to check the current of popular feeling, and bring about, if possible, more moderate, wiser, and more magnanimous counsels, he wrote the papers signed “Phocion,” an act requiring much courage in the existing condition of popular feeling. These two essays were originally published in pamphlet form.
Coke upon Magna Charta, chap. 29, page 50.
Vatel, book 4, chapter 4, § 47. Grotius, book 3, chapter 19, § 14.
The first letter from Phocion attracted much attention and drew out many answers, of which the most important was one signed “Mentor.” The author was Isaac Ledyard, a leading politician and a friend of Governor Clinton, so that Hamilton felt it necessary to reply by publishing this second “Phocion” letter.
Vide Address of Congress to the people of Great Britain, September 5, 1774.
Blackstone, vol. ⅳ., page 5.
Vide Proposition 4th.
Vatel, page 130, § 48.
Vide Position 5th.
This whole passage should be noted because it disposes so completely of Jefferson’s absurd and reiterated charge that Hamilton wished to introduce a monarchy.
Delivered in the New York Legislature, 1787.
The payment of the debt to France, which is the subject of this letter and others, is so closely interwoven with our relations with that country in the troubled times which followed the establishment of the government, that all documents in regard to it seem to come most appropriately under the head of foreign relations.
If we except the informal mission of Morris to England, this interview appears to have been the first attempt of the administration to reopen friendly relations with England.
Sir Guy Carleton, who had been the last English general in America. He was raised to the peerage as Lord Dorchester, and was at this time Governor of Canada.
This letter contains the general instructions of the government as to our financial policy abroad, including both payment of French debt and the management of Dutch and other loans.
Following close upon the Beckwith interview came indications that a very practical test might be put to our relations with England by the suggestion of Lord Dorchester that he might ask for permission to march troops across our territory as a preparation for the hostilities then impending between Spain and Great Britain. Washington took advice on the point thus raised from Jefferson, who advised that no answer should be made, the question, if put squarely, evaded, and should the British troops take silence for consent their march through our country could be then pressed as a grievance. The President then consulted John Adams and Hamilton. Both were agreed that the question, if put, should be answered at once, squarely and directly, and not evaded. Adams argued for a refusal of the permission (Adams’ Works, vol. ⅷ., p. 497), and his letters show the difficulties which encompassed the course he suggested. Hamilton advised consent, although with reluctance, because he felt that war, for which we were unprepared, was the only alternative. The paper discusses the international law of the question, and its political bearing as well, with great acuteness and ability, but it is chiefly interesting as the first exposition of Hamilton’s views as to the foreign policy proper for the United States. The actual request was never made, but the discussion which its probability drew forth is valuable and instructive to the student of our history and of the development of our national policy.
The same question arose in 1862 when Lord Lyons asked permission to land troops at Portland, and march them through the State of Maine to Quebec, as the St. Lawrence was then blockaded with ice. These troops had, no doubt, been intended to act against the United States if the Trent affair had not been settled, but Mr. Seward, despite the difficulties of the situation, adopted Hamilton’s view of the general question, and at once granted the permission, an act of courtesy which did much to allay the excited feeling then existing (Seward’s Works, vol. v., p. 11).
Puffendorf’s Laws of Nature and Nations, pp. 239, 240.
Note I on Book Ⅱ., chap. ⅱ., § 13.
Rights of War and Peace, Book Ⅱ., chap. ⅱ., § 13, Nos. 1, 2, 3, 4.
Book ⅲ., chap. ⅶ., §§ 119, 120, 121, 122, 123.
Vatel, Book Ⅲ., chap. ⅶ., § 127.
France has made us one loan since the peace.
Gouverneur Morris had been sent to England by Washington, in an informal and unofficial manner, to open relations once more with that country, and obtain the performance of treaty obligations. Before presenting his credentials, Morris made the mistake of disclosing to his old friend Luzerne, formerly Minister to the United States, and at this time Minister to London, the object of his visit. Luzerne allowed this fact to become known, and there was much jealousy aroused by this apparent close connection with France, which hindered greatly the advancement of Morris’ mission. Complaint found its way to the American Government through Lord Dorchester. The “certain gentlemen” of Hamilton’s letter, is Major Beckwith; “another gentleman employed on a particular errand” is Morris; and Luzerne is the “representative of a certain court.” The head of the opposition party was Fox. Morris doubted whether Luzerne had betrayed him, but this fact seems proved. Morris alleged further that he avoided Fox purposely, and only saw him twice. It is more than probable that both these accusations were mere pretences, put forward by the Tory government to delay doing us justice under the treaty, and quietly injure so far as possible the successful and now thriving rebels, whom they had failed to conquer.—See Life of G. Morris, i., p. 347.
This refers undoubtedly to our treaty with France. What the precise exemption was which was sought is not clear, although indicated in this and the next letter. There is no evidence that this “intended” report was ever made; at least it is not found in Jefferson’s works nor in those of Washington.
Although the precise point involved is lost, the general purport of this and the preceding letter is clear. Jefferson was considering whether to recommend some treaty construction favorable to France. Hamilton civilly disagreed on being consulted, and the matter appears to have dropped.
This draft of a reply to the communication of the French Assembly on the death of Franklin was adopted verbatim by Washington and sent to France.—Writings of Washington, ⅹ., 133.
Relating to the payment of our debt to France.
The letter enclosed from De Ternant, the French Minister, set forth the distress in Hispaniola owing to negro insurrection, and asked for an advance in payment of the French debt, to purchase provisions and relieve the distress of the French colony.
Jefferson’s answer to Hammond’s letter of March 5th, although he appears to have consulted Hamilton in regard to it during the same month, was not sent until May 29, 1792. It was long, able, and elaborate.—See Jefferson’s Works, ⅲ., 365.
Jefferson accepted and adopted Hamilton’s suggestions in all except the second and third objections. See Hamilton’s Works, J. C. Hamilton edition, ⅵ., p. 144, Jefferson to Hamilton, March, 1791, a letter not found in Jefferson’s Works. Both Hamilton’s letter and Jefferson’s reply are misdated by J. C. Hamilton. Hammond did not arrive until the autumn of 1791, and this letter was written in March, 1792, not 1791, as J. C. Hamilton has it.
Not printed in Jefferson’s Works. This request for information is probably in connection with the next letter of criticism on the report.
Jefferson’s report on the negotiations with Spain as to free navigation of the Mississippi, sent in March 18, 1792.—See Jefferson’s Works, ⅶ., 570.
These notes are in the hand of Jefferson. “The report is amended in conformity with this observation.”
“The capture of the army struck out.”
“No conquest of the territory was made, to wit, of the island of New Orleans on the one side, or Louisiana on the other, as both had belonged to Spain before the war. Therefore no change in the right to the water as incident to the territory. This circumstance, however, is inserted in the report to make the reasoning the clearer.”
The word choose substituted for wish; however, England could hold that right of command in the water only as incident to Florida, which she then held. When she conveyed Florida to Spain, the incident passed by the same consequence, and she can never have a claim against us on a stipulation, the benefit of which she has conveyed to another.
Report altered in conformity to this.
The power to alienate the unpeopled territory of any State is not among the enumerated powers given by Constitution to the General Government, and if we may go out of that instrument, and accommodate to exigencies which may arise, by alienating the unpeopled territory of a State, we may accommodate ourselves a little more by alienating that which is peopled, and still a little more by selling the people themselves. A shade or two more in the degree of exigency is all that will be requisite, and of that degree we shall ourselves be the judges. However, may it not be hoped that these questions are forever laid to rest by the 12th amendment, now made a part of the Constitution, declaring expressly that the powers not delegated to the United States by the Constitution are reserved to the States respectively? And if the General Government has no power to alienate the territory of a State, it is too irresistible an argument to deny ourselves the use of it on the present occasion.
It is certainly impossible for any nation to have stipulations of this kind and extent with two others at the same time. However, the language of the report is made more correct and conformable to the words of the French treaty.
If the Secretary of the Treasury will be so good as to particularize the advantages to be asked and the equivalents to be offered, it will be proper to consider of them.
It seems sufficient to stipulate that the treaty shall be ratified, without saying by what body or by what individuals it is to be. An instruction, however, is inserted to allow sixteen months for the exchange of ratifications.
This has been decided before.
News had arrived of the war between France and England, and also that the minister of the new French Republic was on his way to the United States.
Five days later, in accordance with the views of his Cabinet, Washington issued his famous proclamation of neutrality, which marked out our foreign policy as one of absolute abstention from the affairs of Europe, a principle of which the Monroe doctrine was the necessary corollary.
This important paper carries the principle of our neutrality a step further, and is most important. Hamilton wished to sever as quietly as possible all connection with France, so that we might be free from alliances of any sort which were liable to go beyond mere comity and commercial reciprocity. Hamilton’s policy was entirely consistent with that of the proclamation.
This letter marks the beginning of the troubles with Genet. That zealous and annoying individual, as soon as he had landed, commissioned privateers which at once began to prey on British commerce, seizing one vessel within the capes of the Delaware. In general he made the United States a base of operations against England, and undertook to drag us into war as the ally of France. This letter and those which follow are almost entirely self-explanatory.
Henfield had been arrested for enlisting at Charleston on French privateer, The Citoyen Genet, in order to serve (to quote the language of the Attorney-General) “against a nation at peace with the United States, in violation of treaties and the supreme law of the land.”
The disturbance raised by Genet spread rapidly, and there was great popular feeling and much excitement in favor of France. In fact a French party was formed and democratic societies sprang up everywhere. The flame was fanned by the opposition, and the result was a series of attacks upon the administration, and especially upon Washington, for issuing the proclamation of neutrality. In this state of affairs Hamilton took the field in the essays signed Pacificus, defending the neutrality policy and the right and duty of the President to issue the proclamation. As always, his writings produced a marked effect, and Jefferson instigated Madison to publish a reply signed Helvidius, but Hamilton had the best of the discussion.
See Vatel, Book Ⅲ., chap. ⅵ., § 101.
See Vatel, Book Ⅲ., chap. ⅶ., § 113.
Vol. Ⅱ., book Ⅳ., chap. ⅲ., §§ 4, 5.
See Book Ⅲ., chap. ⅵ., § 92.
Puffendorf, Book Ⅷ., chap. ⅸ., § 9.
This conclusion derives confirmation from the reflection, that under every form of government rulers are only trustees for the happiness and interest of their nation, and cannot, consistently with their trust, follow the suggestions of kindness or humanity toward others, to the prejudice of their constituents.
The adoption of the neutrality policy, and the action of Washington in declaring it, are events of the first moment in our history. To thoroughly understand them, and the motives and reasons for them, “Pacificus” is indispensable and is the best authority.