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.
Thirdly. That a crime is an act committed or omitted, in violation of a public law, either forbidding or commanding it.
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 prosecution ; 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 treaty ; 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.
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. 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 act
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 short
October 7, 1789.
Sir:—I think it probable that you will have learnt, through other channels, before this reaches you, my appointment as Secretary of the Treasury of the United States. In this capacity the debt due from us to France, will, of course, constitute one of the objects of my attention.
Except with regard to a few laws of immediate urgency, respecting commercial imposts and navigation, the late session of Congress was wholly occupied in organizing the government. A resolution, however, passed the House of Representatives, declarative of their opinion that an adequate provision for the support of the public credit was a matter of high importance to the honor and prosperity of the United States; and instructing me to prepare and report a plan for that purpose at their next session.
In this state of things you will readily perceive that I can say nothing very precise with regard to the provision to be made for discharging the arrearages due to France. I am, however, desirous that it should be understood that proper attention will be paid to the subject on my part; and I take it for granted that the National Legislature will not fail to sanction the measures which the faith and credit of the United States require in reference to it. In addition to this I shall only remark that it would be a valuable accommodation to the government of this country if the court of France should think fit to suspend the payment of the instalments of the principal due and to become due, for five or six years from this period, on the condition of effectual arrangements for the punctual discharge of the interest which has accrued and shall accrue. But in giving this intimation it is not my intention that any request should be made to that effect. I should be glad that the thing might come about in the form of a voluntary and unsolicited offer; and that some indirect method may be taken to communicate the idea where it would be of use it should prevail. It may not be amiss that you should know that I have hinted the matter in the inclosed private letter to the Marquis de Lafayette, in forwarding which I request your particular care.
I have the honor to be, Sir,
Your obedient and humble servant,
Secretary of the Treasury.
William Short, Chargé d’ Affaires,
P. S.—Since writing the above, I have, in a private and unofficial manner, broken the matter to the Count de Moustier; and I have reason to conclude he will promote what is desired.
hamilton to washington
Memorandum of the Substance of a Communication made on Thursday, the Eighth of July, 1790, to the Subscriber, by Major Beckwith, as by Direction of Lord Dorchester
Major Beckwith began by stating that Lord Dorchester had directed him to make his acknowledgments for the politeness which had been shown in respect to the desire he had intimated to pass by New York in his way to England; adding that the prospect of a war between Great Britain and Spain would prevent or defer the execution of his intention in that particular. He next proceeded to observe, that Lord Dorchester had been informed of a negotiation commenced on the other side of the water, through the agency of Mr. Morris, mentioning, as the subscriber understood, principally by way of proof of Lord Dorchester’s knowledge of the transaction, that Mr. Morris had not produced any regular credentials, but merely a letter from the President directed to himself; that some delays had intervened, partly on account of Mr. Morris’ absence on a trip to Holland, as was understood; and that it was not improbable these delays and some other circumstances may have impressed Mr. Morris with an idea of backwardness on the part of the British ministry. That his lordship, however, had directed him to say that an inference of this sort would not, in his opinion, be well founded, as he had reason to believe that the cabinet of Great Britain entertained a disposition not only toward a friendly intercourse, but toward an alliance, with the United States. Major Beckwith then proceeded to speak of the particular cause of the expected rupture between Spain and Britain, observing it was one in which all commercial nations must be supposed to favor the views of Great Britain. That it was therefore presumed, should a war take place, that the United States would find it to be their interest to take part with Great Britain rather than with Spain.
Major Beckwith concluded with producing a letter, signed “Dorchester,” which letter contained ideas similar to those he had expressed, though in more guarded terms, and without any allusion to instructions from the British cabinet. This letter, it is now recollected, hints at the non-execution of the treaty of peace on our part.
On the subscriber remarking the circumstance that this letter seemed to speak only the sentiments of his lordship, Major Beckwith replied, that whatever reasons there might be for that course of proceeding in the present stage of the business, it was to be presumed that his lordship knew too well the consequence of such a step, to have taken it without a previous knowledge of the intentions of the cabinet.
Major Beckwith afterwards mentioned that Lord Dorchester had heard with great concern of some depredations committed by some Indians on our western frontier; that he wished it to be believed that nothing of this kind had received the least countenance from him; that, on the contrary, he had taken every proper opportunity of inculcating upon the Indians a pacific disposition towards us; and that, as soon as he had heard of the outrages lately committed, he had sent a message to endeavor to prevent them; that his lordship had understood that the Indians alluded to were banditti, composed chiefly or in a great part of Creeks or Cherokees, over whom he had no influence, intimating at the same time that these tribes were supposed to be in connection with the Spaniards.
He stated, in the next place, that his lordship had been informed that a Captain Hait, in our service, and a Mr. Nimble, and indeed some persons in the treaty at Fort Harman, had thrown out menaces with regard to the posts on the frontier, and had otherwise held very intemperate language; which, however, his lordship considered rather as effusions of individual feelings than as the effects of any instruction from authority.
hamilton to washington
July 22, 1790.
On Thursday, the 22d instant, I had a second interview with Major Beckwith, in which I spoke to him nearly as follows.
I have made the proper use of what you said to me at our last interview.
As to what regards the objects of a general nature mentioned by you, though your authority for the purpose from Lord Dorchester is out of the question, and though I presume from his lordship’s station and character, and the knowledge he appears to have of what is passing on the other side of the water, with regard to Mr. Morris, that the step he has taken through you is conformable to the views of your cabinet, and not without its sanction, yet you are no doubt sensible that the business presents itself in a shape which does not give the proper authenticity to that fact, and is wholly without formality. You must also be sensible that there is a material difference between your situation and that of Mr. Morris. His credentials, though not formal, proceed from the proper source. Yours are neither formal nor authoritative.
This state of things will, of course, operate on what I am going to say on the subject. As to what relates to friendship between Great Britain and the United States, I conceive myself warranted in declaring that there is in the government of this country a sincere disposition to concur in obviating with candor and fairness all ground of misunderstanding which may now exist in reference to the execution of the late treaty of peace, and in laying the foundation of future good understanding, by establishing liberal terms of commercial intercourse.
As to alliance, this opens a wide field. The thing is susceptible of a vast variety of forms. ’T is not possible to judge what would be proper or what could be done, unless points were brought into view. If you are in condition to mention particulars, it may afford better ground of conversation.
I stopped here for an answer.
Major Beckwith replied, that he could say nothing more precise than he had already done.
That being the case (continued I), I can only say, that the thing is in too general a form to admit of a judgment of what may be eventually admissible or practicable. If the subject shall hereafter present itself to discussion in an authentic and proper shape, I have no doubt we shall be ready to converse freely upon it. And you will naturally conclude that we shall be disposed to pursue whatever shall appear under all circumstances to be our interest, as far as may consist with our honor. At present I would not mean either to raise or repress expectation.
Major Beckwith seemed to admit that as things were circumstanced nothing explicit could be expected, and went on to make some observations, which I understood as having for object to sound whether there existed any connection between Spain and us; and whether the questions with regard to the Mississippi were settled.
Perceiving this, I thought it best to avoid an appearance of mystery, and to declare without hesitation,
“That there was no particular connection between Spain and the United States, within my knowledge, and that it was matter of public notoriety, that the questions alluded to were still unadjusted.”
The rest of our conversation chiefly consisted of assurances on my part, that the menaces which had been mentioned by him as having been thrown out by some individuals with regard to the western posts were unauthorized, proceeding probably from a degree of irritation which the detention of the posts had produced in the minds of many, and of a repetition, on his part, of the assurances which he had before given of Lord Dorchester’s disposition to discourage Indian outrages.
Something was said respecting the probable course of military operations, in case of a war between Britain and Spain, which Mr. Beckwith supposed would be directed towards South America; alleging, however, that this was mere conjecture on his part. I hinted cautiously our dislike of any enterprise on New Orleans.
Note by A. H.—Mr. Jefferson was privy to this transaction. The views of the government were to discard suspicion that any engagements with Spain, or intentions hostile to Great Britain, existed; to leave the ground in other respects vague and open, so as that in case of rupture between Great Britain and Spain, the United States ought to be in the best situation to turn it to account, in reference to the disputes between them and Great Britain on the one hand, and Spain on the other.
hamilton to william short
September 1, 1790.
Sir:—Two acts of the Legislature, of the fourth and twelfth of August, of which I inclose you copies, authenticated according to law, empower the President to cause to be borrowed on their behalf fourteen millions of dollars, subject to certain restrictions and qualifications, to be applied in payment of such part of our foreign debt as shall have become due, and to a new modification of the remainder, if it can be effected upon terms beneficial to the United States. The execution of this authority he has committed immediately to me, and ultimately through me to you; except as to three millions of florins, part of the above sum, of which, as you are informed, a loan has been anticipated by Messrs. Willinks, Van Staphorsts, and Hubbard, and of which a confirmation, with correspondent powers, has been sent directly to them. Among the documents which accompany this letter you will find a copy of the commission from the President to me, and a power founded on it from me to you.
It remains for me to give you some indications for your government, conformable to the general tenor of the instructions which I have received from the President, and of which I transmit a copy; premising that it is understood, between the Secretary of State and myself, that you are to proceed to Amsterdam without delay, and to continue there, in the first instance, for a term not less than three months.
A primary and principal object of your attention will be, to acquire as exact knowledge as may be of the footing upon which the different foreign powers who borrow in Holland have usually obtained their loans, since the commencement of our independence, and upon which they at present obtain them; the prices of foreign stock in the Dutch market, including our own; the state of our credit compared with that of other nations; the extent and the conditions to and upon which we shall be likely to borrow in case of war between England and Spain, and in the alternative of our being ourselves at peace or war; the principal houses and brokers concerned in the negotiations of foreign loans; their characters; comparative solidity and influence with the money-lenders; the terms upon which their agency is afforded to their employers; the manner in which those whom we have heretofore employed are understood to have conducted themselves in relation to our interest and credit; and particularly their solidity and influence with the money-lenders.
Most if not all these inquiries will be immediately serviceable to you. They will all be productive of information useful to my department; and I will therefore thank you for successive communications of the result.
One consequence of them to you will be, that they will enable you to judge whether our confidence in our former commissioners or agents ought to be continued, or withdrawn in order to the substitution of others; or, if continued, whether the terms of their agency may not be meliorated; or whether, with their consent, some other house or houses may not be combined with them, with an increase of credit and resource to us.
These, as you will be sensible, are delicate points. They are, however, left to your prudence and discretion, according as facts shall be ascertained to you.
I shall only remark, that changes of public servants ought never to be made but for cogent reasons. If lightly made, they are not only chargeable with injustice and are a symptom of fickleness in the public counsels, but they destroy the motives to good conduct, and, in money concerns especially, are apt to beget a disposition to make the most of possession while it lasts. Circumspection in the present case is also recommended by the consideration that those whom we have heretofore trusted risked themselves and their fortunes upon our affairs, when the doing it was not without serious hazard. This is a reason for permitting them to reap the benefits of our more prosperous days, if they have been faithful and are adequate to the trust. A further reason is, that they are now deeply interested in our funds, and consequently, it is presumable, in our credit. Competition and variance once existed between the house of Willinks and that of the Van Staphorsts; but these appear some time since to have been compromised. The latter have most merit for early exertions, the former are said to be most solid. This union is desirable for the greater security it affords.
Suggestions of this nature are not dictated by any distrust of the fidelity or good conduct of our former commissioners. As far as I know, they deserve well of us. My object is, in entering upon a new stage of our affairs, to have the ground over which we have passed well examined, that we may the better judge whether to continue or alter our course.
In the consideration of our foreign debt, it naturally divides itself into two parts; that which is now payable, and that which will be payable hereafter. The first we are bound to discharge as soon as may be, and upon the best terms we can. The last we are not bound to discharge but as the times of payment elapse, and therefore are not called upon to do it unless some positive advantage accrues from it to ourselves. This view of the matter governs the instructions of the President to me, which, of course, regulate mine to you.
You are accordingly to borrow, on the best terms which shall be found practicable, within the limitations prescribed by law, such sum or sums as shall be sufficient to discharge as well all instalments or parts of the principal of the foreign debt, which now are due or shall become payable to the end of the year one thousand seven hundred and ninety-one, as all interest and arrears of interest which now are or shall become due in respect to the said debt to the same end of the year one thousand seven hundred and ninety-one. But you shall not extend the amount of the loans which you shall make or cause to be made beyond the sum which shall be requisite for that purpose, unless it can be done upon terms more advantageous to the United States than those upon which the residue of the said debt shall stand or be.
And in order that you may judge what will be due to the end of the year one thousand seven hundred and ninety-one, I refer you to the papers marked A and B, which contain statements of principal and arrears of interest of our foreign loans to that period; and shall, by the next opportunity, send you a copy of the contracts respecting them, from which you will derive a more accurate knowledge of their terms.
You will perceive, by the act which authorizes the loan for paying off the foreign debt, that there is no other restriction as to the terms except that, in the contracts to be made, the United States shall be left at liberty to reimburse the sum borrowed, within a period not exceeding fifteen years. As this seems to be the usual period for the reimbursement of moneys borrowed in Holland, that restriction can constitute no embarrassment.
In the second act there is no restriction as to time of repayment, but there is one as to the rate of interest, which must not exceed five per cent. This, however, I consider as compatible with the allowance of those premiums, commissions, and other charges which are customary in ordinary times; and which, I am informed, are, in the aggregate, about four and a half per cent. But the allowance of unusual or extraordinary premiums to obtain loans upon a nominal interest of five per cent., as well because it is a pernicious mode of borrowing as because it would be an invasion of the law, is inadmissible.
If war should continue or become more general in Europe, it is to be apprehended that the demand for money will raise its price upon us, and that loans will not be practicable upon so good terms as in time of peace. The situation of this country, too, authorizes us to expect that as our resources become more unfolded and better understood, we shall be able to borrow upon easier terms than we have at any time heretofore done. On both these accounts it would be very desirable, while we did not oblige ourselves to reimburse the principal borrowed in less than fifteen years, commencing at the end of ten, that we could stipulate for a right of reimbursing it sooner,—that is to say, either upon giving notice of our intention to do it for a limited time beforehand, or at the end of a short period, say five years. I should consider a stipulation of this kind as a valuable ingredient in your contracts.
I have intimated above the inexpediency of extraordinary premiums to purchase a nominal low rate of interest. Against this error I would particularly guard you. It is sacrificing a real future interest to an appearance, at best, to temporary accommodation. A higher rate of interest upon a sum actually received, is preferable to a lower rate upon a nominal sum, with large deductions in the first instance, or considerable premiums afterwards; this will be more especially the case if we can reserve a right to repay when we please or after a short period; as we may reasonably contemplate, with the return of peace, a fall of interest.
But every thing of this kind is, after all, matter of calculation, and to be tested by the evidence of figures. I can only, therefore, mean to give you a caution, referring you to that test, and intimating to you this general principle, that the name of a low interest ought not to betray us into giving more for it in the shape of premium or discount than it is worth, and that, as we shall borrow at a time when circumstances will render interest high, we had better pay that interest on actual value received, than a lower one on a fictitious value, or for future and exaggerated compensations; reserving, as far as it can be done, the right of paying off at pleasure, or at an early period. The future fall of interest will, in the first case, turn to our advantage, in the last, to our disadvantage.
You will not pass unnoticed the circumstance that the laws contain actual appropriations of very adequate funds for the payment of interest upon the sums you shall borrow. The first act, indeed, after reserving six hundred thousand dollars for the support of government, gives a priority in payment to the foreign debt out of revenues which are calculated upon the estimate of a much larger product. You may confidently assert that the duties hitherto have produced at the rate of one million eight hundred thousand dollars; which alone would leave twelve hundred thousand dollars, as the fund out of which the interest on your loans would be payable. But the augmentations which have been made in the rates are computed to be capable of affording an addition of eight hundred thousand dollars; and I believe the computation to be well founded.
You will also, no doubt, make a proper use in your communications of the actual situation and future prospects of this country. The economical scale of our establishments, civil and military; the comparative smallness of our debt; the reliance which may be had on the stability of our pecuniary arrangements once made, from the nature of our government in respect to the mutual checks inherent in its organization; the rapid progression of population and resources to which we may look forward; the actual and probable emigrations occasioned by the troubled state of Europe; the hope that we shall continue in peace, while other Powers are accumulating their debts by new wars; the very favorable situation in which we shall find ourselves at the end of a general war in Europe, if we avoid participating in it, etc., etc. These are topics which ought to have weight in our favor, and, within due limits, may be urged with force and assurance.
With regard to that part of the debt which does not become payable till after the year one thousand seven hundred and ninety-one, you will have observed that nothing is to be done by you in respect to it, unless it can be done upon terms of advantage to the United States. However cordial our disposition to come to the pecuniary aid of France in her present affecting and embarrassed condition, in this early stage of our finances we could not in prudence volunteer payments not due by the terms of the contract, especially, too, by the expedient of new foreign loans, unless it should be attended with some circumstance of advantage in the operation to ourselves. By this I understand a lower rate of interest.
For, according to my speculations on the probable rate of exchange between this country, France, and Holland, and between Holland and France for some years to come, I deem it better (whether our payments proceed directly from hence, or circuitously through Holland) to have to pay a given sum to France, than an equal sum to Holland.
The charges too upon the new loans will have to be taken into the account, and an indemnity for them included in the terms of the operation. Calculating only upon the ordinary ones, it does not appear to me that it would be the interest of the United States to change the form of this debt, unless the rate of interest on the new loans did not exceed four per cent. And I own that, in the present aspect of affairs, I see no ground to expect that loans will be obtained at so low a rate.
If the thing should be possible, it must be on the score of some collateral advantages to the lenders; such, for instance, as their being permitted to pay a part in the effects or stock of France, as was contemplated in the last negotiations. Whether any arrangement of this nature will be a desirable accommodation to France; whether persons of real capital, who would not in the execution be obliged to use means prejudicial to the credit of the United States, would be willing to embark in such a plan; whether it would prove an obstacle to other loans which we may have occasion to make for other purposes, are circumstances essential in determining its eligibility, which cannot be known to me, and can only be accurately judged of by one on the spot.
I suggest them as hints to you. In exploring or feeling the ground, you will recollect that propositions of such a nature ought not to come from us. If the thing should be capable of being placed upon a footing conducive to our interests, we ought only to appear to sanction what other parties desire of us. And we should in no event make any movement that may injure our reputation, or place us in the light of a people desirous of making hard bargains at the expense of friends.
Neither can I authorize you to conclude any general arrangement of this nature, without a previous communication of it to me, to be submitted to the consideration of the President; there being a separate instruction from him to me, that no loan shall be opened for more than a million of dollars, and that no new loan shall be undertaken until the preceding one shall have been announced to him, and shall have received his sanction.
This limitation, therefore, in all your proceedings, you will of course attend to, and you will perceive the utility of making the earliest communication of every loan you shall set on foot, in order that you may know the determination of the President before its completion, and be prepared in time to commence another.
It has been suggested that loans may be made with advantage in certain parts of Italy. I do not count on this resource, but I shall be glad to know how far, from inquiry, it shall appear to be an eligible field for an experiment.
With regard to the application of the moneys to be borrowed, you will, from time to time, receive special directions.
The foregoing are the only observations which the time I have will permit me to make. They contain general indications of the course you are to pursue; the rest must be left to your judgment, circumspection, and delicacy. I doubt not you will be duly impressed with the importance of the trust; how much the interest and reputation of our government are concerned in its proper execution. And I feel a confidence that they will not suffer in your hands.
P. S.—I send for your information a copy of my letter to Messrs. Willinks & Co., by which you will perceive the footing on which the provisional loan of three millions of florins is placed.
hamilton to washington
September 15, 1790.
Answer to Questions Proposed by the President of the United States to the Secretary of the Treasury
Question the First.—“What should be the answer of the Executive of the United States to Lord Dorchester, in case he should apply for permission to march troops through the territory of said States, from Detroit to the Mississippi?”
Answer.—In order to a right judgment of what ought to be done in such case, it may be of use previously to consider the following points:
First.—Whether there be a right to refuse or consent, as shall be thought most for the interest of the United States.
Secondly.—The consequences to be expected from refusal or consent.
Thirdly.—The motives to the one or to the other.
As to the first point, if it were to be determined upon principle only, without regard to precedents or opinions, there would seem to be no room for hesitation about the right to refuse. The exclusive jurisdiction which every independent nation has over its own territory, appears to involve in it the right of prohibiting to all others the use of that territory in any way disagreeable to itself, and more especially for any purpose of war, which always implies a degree of danger and inconvenience, with the exception only of cases of necessity.
And if the United States were in a condition to do it without material hazard, there would be strong inducements to their adopting it as a general rule never to grant a passage for a voluntary expedition of one power against another, unless obliged to it by treaty.
But the present situation of the United States is too little favorable to encountering hazards, to authorize attempts to establish rules, however eligible in themselves, which are repugnant to the received maxims or usages of nations.
It is therefore necessary to inquire what those maxims or usages enjoin in the case suggested.
With regard to usage, it has been far from uniform. There are various instances in ancient and modern times of similar permissions being demanded; many, in which they have been granted; others in which they have been refused, and the refusal acquiesced in; but perhaps more in which, when refused, a passage has been forced, and the doing of it has often been deemed justifiable.
Opinions are not more harmonious. Among those who may be considered as authorities on such subjects, Puffendorf and Barbeyrac confine within narrow limits the right of passage through neutral territories; while Grotius and Vatel, particularly the former, allow to it greater latitude. Puffendorf treats it not as a natural right, but as derived from compact or concession; especially when the enemy of a neighboring state desires leave to march troops through a neutral country against its neighbor. For it seems (says he) to be a part of the duty which we owe to our neighbors, especially such as have been kind and friendly, not to suffer any hostile power to march through our country to their prejudice, provided we can hinder the design with no great inconvenience to ourselves. And as it may have a tendency to make our own country the theatre of the war (since the power intended to be attacked may justifiably march within our limits to meet the approaching enemy), he concludes that it is the safest way of acting in such case, if we can do it without any considerable prejudice to our own affairs, to deny the enemy passage, and actually to oppose him if he endeavors to force it without our consent. But if we are either too weak to hinder his progress, or must on this score engage in a dangerous war, he admits that the plea of necessity will fairly justify us to our neighbor.
Examples, he adds, have little force on the decision of the question. For, generally, as people have been stronger or weaker, they have required passage with modesty or with confidence, and have in like manner granted or refused it to others.
Barbeyrac, in his Commentary on Grotius, is still stronger against the right of passage. He affirms that, even though we have nothing to apprehend from those who desire a passage, we are not therefore obliged in rigor to grant it. It necessarily follows, says he, from the right of property, that the proprietor may refuse another the use of his goods. Humanity, indeed, requires that he should grant that use to those who stand in need of it, when it can be done without any considerable inconvenience to himself; but if he even then refuses it, though he transgresses his duty, he does no wrong, properly so called, except they are in extreme necessity, which is superior to all ordinary rules. Thus far, and no farther, extends the reserve with which it is supposed the establishment of property is accompanied.
Grotius, on the other hand, expresses himself thus : A free passage ought to be granted to persons where just occasion shall require, over any lands, or rivers, or such parts of the sea as belong to any nation; and, after enumerating several examples in support of his position, he concludes that the middle opinion is best; to wit, that the liberty of passing ought first to be demanded, and if denied, may be claimed by force. Neither, says he, can it be reasonably objected that there may be suspicion of danger from the passing of a multitude; for one man’s right is not diminished by another man’s fear. Nor is the fear of provoking that prince against whom he that desires to pass is engaged in a just war, a sufficient reason for refusing him passage. Nor is it any more an excuse that he may pass another way, for this is what everybody may equally allege, and so this right by passing would be entirely destroyed. But it is enough that the passage be requested, without any fraud or ill design, by the nearest and most convenient way. If, indeed, he who desires to pass undertakes an unjust war, or if he brings people who are my enemies along with him, I may deny him a passage; for in this case I have a right to meet and oppose him, even in his own land, and to intercept his march. Thus it would seem to be the opinion of Grotius, that a party engaged in a just war has a right, of course, to a passage through a neutral territory, which can scarcely, if at all, be denied him, even on the score of danger or inconvenience to the party required to grant it.
But Vatel, perhaps the most accurate and approved of the writers on the laws of nations, preserves a mean between these different opinions. This is the sum of what he advances: That an innocent passage is due to all nations with whom a state is at peace, for troops equally with individuals, and to annoy as well as to avoid an enemy. That the party asking and the party asked are both, in different degrees, judges of the question when innocent? That where the party asked has good reasons for refusing, he is not under any obligation to grant, and in doubtful cases his judgment ought to be definitive; but in evident ones, or those in which the harmlessness of the passage is manifest, the party asking may, in the last resort, judge for himself, and after demand and refusal may force his way. That nevertheless, as it is very difficult for the passage of a powerful army to be absolutely innocent, and still more difficult for its innocence to be apparent, a refusal ought to be submitted to, except in those very rare cases when it can be shown in the most palpable manner that the passage required is absolutely without danger or inconvenience. And lastly, that this right of passage is only due in a war not materially unjust.
Perhaps the only inference to be drawn from all this is, that there exists in the practice of nations and the dogmas of political writers a certain vague pretension to a right of passage in particular cases and according to circumstances, which is sufficient to afford to the strong a pretext for claiming and exercising it when it suits their interests, and to render it always dangerous to the weak to refuse, and sometimes not less so to grant it.
It is, nevertheless, a proper inquiry, whether a refusal could be placed on such ground as would give a reasonable cause of umbrage to the party refused, and as in the eye of the world would justify it.
Against the propriety of a refusal are the following circumstances: that there is no connection between us and Spain, which obliges us to it; that the passage asked will be down rivers, and for the most part through an uninhabited wilderness, whence no injury to our citizens or settlements will be apprehended; and that the number of troops to be marched, especially considering the route, will probably not be such as, on their own account, to be a serious cause of alarm. These circumstances may give our refusal the complexion of partiality to Spain, and of indisposition towards Britain, which may be represented as a deviation from the spirit of exact neutrality.
In support of the propriety of a refusal, the following is the only assignable reason: that it is safer for us to have two powerful but rival nations bordering upon our two extremities, than to have one powerful nation pressing us on both sides, and in capacity, hereafter, by posts and settlements, to envelop our whole interior frontier.
The good offices of Spain in the late war; the danger of the seduction of our western inhabitants; the probable consequences to the trade of the Atlantic States, are considerations rather to be contemplated as motives, than alleged as reasons.
The first reason, however, is of a nature to satisfy the mind of the justice of a refusal; admitting the authority of the more moderate opinions, which have been cited. And the danger, too, upon the supposition of which it is founded, appears to be obvious enough to vindicate it, in the opinion of the disinterested part of mankind; little likely as it may be to engage the acquiescence of the party whose wishes would be thwarted by the refusal. It deserves, notwithstanding, to be noticed on this point, that the ground of dissent would not result from the thing itself—that is, the mere passage,—but from the nature of the acquisition, to which it would give facility. This circumstance may somewhat obscure the clearness of the conclusion, that there is a perfect right to refuse.
But, upon the whole, there does not appear to be room enough for a scruple about the right to deter from refusal if, upon examination, it shall be found expedient.
Does the right of consenting to the passage stand upon ground equally unexceptionable?
This question Vatel answers in the following manner: “When I have no reason to refuse the passage, the party against whom it is granted has no room for complaint, much less for making it a pretense for war; since I did no more than what the law of nations enjoins. Neither has he any right to require that I should deny the passage, because he is not to hinder me from doing what I think is agreeable to my duty, and even on occasion when I might with justice deny the passage, it is allowable in me not to make use of my right; especially when I should be obliged to support my refusal by my sword. Who will take upon him to complain of my having permitted the war to be carried into his own country, rather than draw it on myself? It cannot be expected that I should take up arms in his favor, unless obliged to by a treaty.” And Puffendorf admits, as has been before noted, that if we are either too weak to hinder his progress, or must on that score engage in a dangerous war, the plea of necessity will fairly justify us to our neighbor.
Nothing need be added to reasoning so perspicuous and convincing. It does not admit of a moment’s doubt, as a general rule, that a neutral state, unfettered by any stipulation, is not bound to expose itself to a war, merely to shelter a neighbor from the approaches of its enemy. It remains to examine, if there are any circumstances, in our particular case, capable of forming an exception to that rule.
It is not to be forgotten that we received from France, in our late revolution, essential succor, and from Spain valuable countenance and some direct aid. It is also to be remembered that France is the intimate ally of Spain, and there subsists a connection by treaty between the former power and the United States.
It might thence be alleged that obligations of gratitude towards those powers require that we should run some risk, rather than concur in a thing prejudicial to either of them, and particularly in favor of that very nation against which they assisted us. And the natural impulse of every good heart will second the proposition, till reason has taught it that refinements of this kind are to be indulged with caution in the affairs of nations.
Gratitude is a word, the very sound of which imposes something like respect. Where there is even an appearance upon which the claim to it can be founded, it can seldom be a pleasing task to dispute that claim. But where a word may become the basis of a political system, affecting the essential interests of the state, it is incumbent upon those who have any concern in the public administration, to appreciate its true import and application.
It is necessary, then, to reflect, however painful the reflection, that gratitude is a duty, a sentiment, which between nations can rarely have any solid foundation. Gratitude is only due to a kindness or service, the predominant object of which is the interest or benefit of the party to whom it is performed. Where the interest or benefit of the party performing is the predominant cause of it, however there may result a debt, in cases in which there is not an immediate adequate and reciprocal advantage, there can be no room for the sentiment of gratitude. Where there is such an advantage, there is then not even a debt. If the motive of the act, instead of being the benefit of the party to whom it was done, should be a compound of the interest of the party doing it and of detriment to some other, of whom he is the enemy and the rival, there is still less room for so noble and refined a sentiment. This analysis will serve as a test of our true situation in regard both to France and Spain.
It is not to be doubted, that the part which the courts of France and Spain took in our quarrel with Great Britain, is to be attributed, not to an attachment to our independence or liberty, but to a desire of diminishing the power of Great Britain by severing the British Empire. This they considered as an interest of very great magnitude to them. In this their calculations and their passions conspired. For this they united their arms with ours, and encountered the expenses and perils of war. This has been accomplished; the advantages of it are mutual; and so far the account is balanced.
In the progress of the war they lent us money, as necessary to its success, and during our inability to pay they have forborne to press us for it. The money we ought to exert ourselves to pay with interest, and as well for the loan of it, as for the forbearance to urge the repayment of the sums which have become due, we ought always to be ready to make proportionate acknowledgments, and when opportunities shall offer, returns answerable to the nature of the service.
Let it be added to this, that the conduct of France in the manner of affording her aid, bore the marks of a liberal policy. She did not endeavor to extort from us, as the price of it, any disadvantageous or humiliating concessions. In this respect, however, she may have been influenced by an enlightened view of her own interest. She entitled herself to our esteem and good-will. These dispositions towards her ought to be cherished and cultivated; but they are very distinct from a spirit of romantic gratitude, calling for sacrifices of our substantial interests, preferences inconsistent with sound policy, or complaisances incompatible with our safety.
The conduct of Spain towards us presents a picture far less favorable. The direct aid we received from her during the war was inconsiderable in itself, and still more inconsiderable compared with her faculty of aiding us. She refrained from acknowledging our independence; has never acceded to the treaty of commerce made with France,—though a right of doing it was reserved to her,—nor made any other treaty with us; she has maintained possessions within our acknowledged limits without our consent; she perseveringly obstructs our sharing in the navigation of the Mississippi, though it is a privilege essential to us, and to which we consider ourselves as having an indisputable title. And perhaps it might be added upon good ground, that she has not scrupled to intrigue with leading individuals in the western country, to seduce them from our interests, and to attach them to her own.
Spain therefore must be regarded, upon the whole, as having slender claims to peculiar good-will from us. There is certainly nothing that authorizes her to expect we should expose ourselves to any extraordinary jeopardy for her sake. And to conceive that any considerations relative to France ought to be extended to her, would be to set up a doctrine altogether new in politics. The ally of our ally has no claim, as such, to our friendship. We may have substantial grounds of dissatisfaction against him, and act in consequence of them, even to open hostility, without derogating in any degree from what we owe to our ally.
This is so true, that if a war should really ensue between Great Britain and Spain, and if the latter should persist in excluding us from the Mississippi (taking it for granted our claim to share in its navigation is well founded), there can be no reasonable ground of doubt that we should be at liberty, if we thought it our interest, consistently with our present engagements with France, to join Britain against Spain.
How far it might be expedient to place ourselves in a situation which, in case France should eventually become a party in the war, might entangle us in opposite duties on the score of the stipulated guaranty of her West India possessions, or might have a tendency to embroil us with her, would be a mere question of prudential and liberal calculation, which would have nothing to do with the right of taking side against Spain.
These are truths necessary to be contemplated with freedom, because it is impossible to foresee what events may spring up, or whither our interests may point; and it is very important to distinguish with accuracy how far we are bound, and where we are free.
However vague the obligations of gratitude may be between nations, those of good faith are precise and determinate. Within their true limits, they can hardly be held too sacred. But by exaggerating them, or giving them a fanciful extension, they would be in danger of losing their just force. This would be converting them into fetters, which a nation would erelong become impatient to break, as consistent neither with its prosperity nor its safety. Hence, while it is desirable to maintain with fidelity our engagements to France, it is advisable, on all occasions, to beware that they oblige us to nothing towards Spain.
From this view of the subject, there does not appear any circumstance in our case capable of forming an exception to the general rule; and, as it is certain that there can hardly be a situation less adapted to war than that in which we now find ourselves, we can, with the greatest sincerity, offer the most satisfactory excuse to Spain for not withholding our consent, if our own interests do not decide us to a contrary course.
The conclusion from what has been said is, that there is a right either to refuse or consent, as shall be judged for the interest of the United States; though the right to consent is less questionable than the right to refuse.
The consequences to be expected from refusal or consent present themselves next to consideration. Those of consent shall be first examined.
An increase of the means of annoying us in the same hands is a certain ill consequence of the acquisition of the Floridas and Louisiana by the British. This will result not only from contiguity to a greater part of our territory, but from the increased facility of acquiring an undivided influence over all the Indian tribes inhabiting within the borders of the United States.
Additional danger of the dismemberment of the western country is another ill consequence to be apprehended from that acquisition. This will arise as well from the greater power of annoying us, as from the different policy which it is likely would be pursued by that nation, if in possession of the key to the only outlet for the productions of that country. Instead of shutting, they would probably open, the door to its inhabitants, and by conciliating their good-will on the one hand, and making them sensible, on the other, of their dependence on them for the continuance of so essential an advantage, they might hold out to them the most powerful temptation to a desertion of their connection with the rest of the United States. The avarice and ambition of individuals may be made to co-operate in favor of those views.
A third ill consequence of that acquisition would be, material injury, in time to come, to the commerce of the Atlantic States. By rendering New Orleans the emporium of the products of the western country, Britain would, at a period not very distant, have little occasion for supplies of provisions for their islands from the Atlantic States; and for their European market they would derive from the same source copious supplies of tobacco and other articles now furnished by the Southern States: whence a great diminution of the motives to establish liberal terms of commercial intercourse with the United States collectively.
These consequences are all expressed or implied in the form of the question stated by the President. And as far as our consent can be supposed likely to have influence upon the event, they constitute powerful objections to giving it.
If even it should be taken for granted that our consent or refusal would have no influence either way, it would not even then cease to be disagreeable to concur in a thing apparently so inauspicious to our interests. And it deserves attention that our concurrency might expose us to the imputation either of want of foresight to discover a danger, or of vigor to withstand it.
But there is almost always in such cases a comparison of evils; and the point of prudence is, to make choice of that course which threatens the fewest or the least, or sometimes the least certain. The consequences of refusal are therefore to be weighed against those of consent.
It seems to be a matter taken for granted by the writers upon the subject, that a refusal ought to be accompanied with a resolution to support it, if necessary, by the sword; or, in other words, to oppose the passage, if attempted to be forced, or to resent the injury, if circumstances should not permit an effectual opposition. This, indeed, is implied in the nature of the thing; for to what purpose refuse, unless it be intended to make good the refusal? or how avoid disgrace, if our territories are suffered to be violated with impunity, after a formal and deliberate prohibition of passage?
There are cases in which a nation may, without ignominy, wink at an infraction of its rights; but this does not appear to be one of them. After having been asked its permission and having refused it, the presumption will be that it has estimated the consequences, calculated its means, and is prepared to assert and uphold its rights. If the contrary of this should turn out to be its conduct, it must bring itself into contempt for inviting insult which it was unable to repel, and manifesting ill-will towards a power which it durst not resist. As, on the one hand, there cannot be conceived to be a greater outrage than to pass through our country, in defiance of our declared disapprobation; so, on the other, there cannot be a greater humiliation than to submit to it.
The consequence therefore of refusal, if not effectual, must be absolute disgrace or immediate war. This appears, at least, to be the alternative.
Whether a refusal would have the desired effect, is, at best, problematical. The presumption, perhaps, is, that Great Britain will have adverted to the possibility of it; and if, under the uncertainty of what would be our conduct, she should still have resolved on prosecuting the enterprise through our territory, that she will at the same time have resolved either to ask no questions, or to disregard our dissent. It is not unlikely that the reasoning of the British cabinet will have been to this effect: If the United States have no predilection for Spain, or if their views of their own interest are not opposed to the acquisition we meditate, they will not withhold their consent; if either the one or the other be the case, it ought to be determined beforehand, whether their enmity be a greater evil, than the projected acquisition a good; and if we do not choose to renounce the one, we must be prepared to meet the other.
A further ill consequence of the refusal, if ineffectual, not wholly destitute of weight, is this, that Great Britain would then think herself under less obligation to keep measures with us, and would feel herself more at liberty to employ every engine in her power to make her acquisition as prejudicial to us as possible; whereas, if no impediment should be thrown in the way by us, more good humor may beget greater moderation, and, in the progress of things, concessions securing us may be made, as the price of our future neutrality. An explicit recognition of our right to navigate the Mississippi to and from the ocean, with the possession of New Orleans, would greatly mitigate the causes of apprehension from the conquest of the Floridas by the British.
The consequences of refusal or consent constitute leading motives to the one or to the other; which now claim a more particular discussion.
It has been seen that the ill effects to be apprehended from the conquest of the Spanish territories in our neighborhood are: an increase of the means whereby we may be hereafter annoyed, and of the danger of the separation of the western country from the rest of the Union; and a future interference with the trade of the Atlantic States, in a manner, too, not conducive to the general weal.
As far as there is a prospect that a refusal would be an impediment to the enterprise, the considerations which have been mentioned afford the strongest inducements to it. But if that effect of it be doubtful, the force of these inducements is proportionably diminished; if improbable, it nearly ceases. The prospect in this case would be, that a refusal would aggravate instead of preventing the evil it was intended to obviate. And it must be acknowledged that the success of it is, at least, very doubtful.
The consideration that our assent may be construed into want of foresight or want of vigor, though not to be disregarded, would not be sufficient to justify our risking a war in our present situation. The cogent reasons we have to avoid a war are too obvious and intelligible, not to furnish an explanation of and an apology for our conduct in this respect.
Whatever may be the calculations with regard to the probable effect of a refusal, it ought to be predicated upon the supposition that it may not be regarded, and accompanied with a determination to act as a proper attention to national dignity would in such an event dictate. This would be to make war.
For it is a sound maxim, that a state had better hazard any calamities than submit tamely to absolute disgrace.
Now, it is manifest, that a government scarcely ever had stronger motives to avoid war, than that of the United States at the present juncture. They have much to dread from war; much to expect from peace; something to hope from negotiation, in case of a rupture between Britain and Spain.
We are but just recovering from the effects of a long, arduous, and exhausting war. The people but just begin to realize the sweets of repose. We are vulnerable both by water and land; without either fleet or army. We have a considerable debt in proportion to the resources which the state of things permits the government to command. Measures have been recently entered upon for the restoration of credit, which a war could hardly fail to disconcert, and which, if disturbed, would be fatal to the means of prosecuting it. Our national government is in its infancy. The habits and dispositions of our people are ill-suited to those liberal contributions to the treasury which a war would necessarily exact. There are causes which render war in this country more expensive, and consequently more difficult to be carried on, than in any other. There is a general disinclination to it in all classes. The theories of the speculative, and the feelings of all, are opposed to it. The support of public opinion (perhaps more essential to our government than to any other) could only be looked for in a war evidently resulting from necessity.
These are general reasons against going into war. There are others, of a more particular kind. To the people at large the quarrel would be apt to have the appearance of having originated in a desire of shielding Spain from the arms of Britain. There are several classes of men to whom this idea would not be agreeable, especially if the Dutch were understood to be in conjunction with the British. All those who were not friendly to our late revolution would certainly dislike it. Most of the descendants of the Dutch would be unfriendly to it. And let it not be overlooked, that there is still a considerable proportion of those who were firm friends to the revolution, who retain prepossessions in favor of Englishmen, and prejudices against Spaniards.
In a popular government especially, however prejudices like these may be regretted, they are not to be excluded from political calculations.
It ought also to be taken into the account, that by placing ourselves at this time in a situation to go to war against Great Britain, we embark with the weakest party—with a total uncertainty what accession of strength may be gained—and without making any terms with regard either to succor, indemnity, or compensation.
France is the only weight which can be thrown into the scale, capable of producing an equilibrium. But her accession, however probable, ought not to be deemed absolutely certain. The predominant party there may choose to avoid war as dangerous to their own power. And if even obstacles should not arise from that quarter, it cannot be foreseen to what extent France will be in condition to make efforts. The great body of malcontents, comprehending a large proportion of the most wealthy and formerly the most influential class—the prodigious innovations which have been made—the general and excessive fermentation which has been excited in the minds of the people—the character of the prince, or the nature of the government likely to be instituted, as far as can be judged prior to an experiment—do not prognosticate much order or vigor in the affairs of that country for a considerable period to come.
It is possible, indeed, that the enthusiasm which the transition from slavery to liberty may inspire, may be a substitute for the energy of a good administration, and the spring of great exertions. But the ebullitions of enthusiasm must ever be a precarious reliance. And it is quite as possible that the greatness, and perhaps immaturity, of that transition, may prolong licentiousness and disorder. Calculations of what may happen in France must be unusually fallible, not merely from the yet unsettled state of things in that kingdom, but from the extreme violence of the change which has been wrought in the situation of the people.
These considerations are additional admonitions to avoid, as far as possible, any step that may embroil us with Great Britain. It seems evidently our true policy to cultivate neutrality. This, at least, is the ground on which we ought to stand, until we can see more of the scene, and can have secured the means of changing it with advantage.
We have objects which, in such a conjuncture, are not to be neglected. The western posts, on one side, and the navigation of the Mississippi, on the other, call for a vigilant attention to what is going on. They are both of importance. The securing of the latter may be regarded in its consequences as essential to the unity of the empire.
But it is not impossible, if war takes place, that by a judicious attention to favorable moments, we may accomplish both by negotiation. The moment, however, we became committed on either side, the advantages of our position for negotiation would be gone. They would even be gone in respect to the party with whom we were in co-operation; for, being once in the war, we could not make terms as the condition of entering into it.
Though it may be uncertain how long we shall be permitted to preserve our neutrality, that is not a sufficient reason for departing from it voluntarily. It is possible we may be permitted to persist in it throughout. And if we must renounce it, it is better it should be from necessity than choice; at least till we see a prospect of renouncing with safety and profit. If the government is forced into a war, the cheerful support of the people may be counted upon. If it brings it upon itself, it will have to struggle with their displeasure and reluctance. This difference alone is immense.
The desire of manifesting amity to Spain, from the supposition that our permanent interest is concerned in cementing an intimate connection with France and Spain, ought to have no influence in the case. Admitting the existence of such an interest, it ought not to hurry us into premature hazards. If it should finally induce us to become a party, it will be time enough when France has become such, and after we shall have adjusted the condition upon which we are to engage.
But the reality of such an interest is a thing about which the best and the ablest men of this country are far from being agreed. There are of this number, who, if the United States were at perfect liberty, would prefer an intimate connection between them and Great Britain as most conducive to their security and advantage; and who are of opinion that it will be well to cultivate friendship between that country and this, to the utmost extent which is reconcilable with the faith of existing engagements; while the most general opinion is, that it is our true policy to steer as clear as possible of all foreign connection, other than commercial and in this respect to cultivate intercourse with all the world on the broadest basis of reciprocal privilege.
An attentive consideration of the vicissitudes which have attended the friendships of nations, except in a very few instances, from very peculiar circumstances, gives little countenance to systems which proceed on the supposition of a permanent interest to prefer a particular connection. The position of the United States, detached as they are from Europe, admonishes them to unusual circumspection on that point. The same position, as far as it has relation to the possessions of European Powers in their vicinity, strengthens the admonition.
Let it be supposed that Spain retains her possessions on our right, and persists in the policy she has hitherto pursued, without the slightest symptom of relaxation, of barring the Mississippi against us; where must this end, and at a period not very distant? Infallibly in a war with Spain, or separation of the western country. This country must have an outlet for its commodities. This is essential to its prosperity, and if not procured to it by the United States, must be had at the expense of the connection with them. A war with Spain, when our affairs will have acquired greater consistency and order, will certainly be to be preferred to such an alternative. In an event of this sort, we should naturally seek aid from Great Britain. This would probably involve France on the opposite side, and effect a revolution in the state of our foreign politics.
In regard to the possessions of Great Britain on our left, it is at least problematical whether the acquisition of them will ever be desirable to the United States. It is certain that they are in no shape essential to our prosperity. Except, therefore, the detention of our western posts (an object, too, of far less consequence than the navigation of the Mississippi), there appears no necessary source of future collision with that power.
This view of the subject manifests that we may have a more urgent interest to differ with Spain than with Britain; and that conclusion will become the stronger if it be admitted that when we are able to make good our pretensions, we ought not to leave in the possession of any foreign power the territories at the mouth of the Mississippi, which are to be regarded as the key to it.
While considerations of this nature ought not to weaken the sense which our government ought to have of any obligations which good faith shall fairly impose, they ought to inspire caution in adopting a system which may approximate us too nearly to certain powers, and place us at too great a distance from others. Indeed every system of this kind is liable to the objection, that it has a tendency to give a wrong bias to the counsels of a nation, and sometimes to make its own interest subservient to that of another.
If the immediate cause of the impending war between Britain and Spain be considered, there cannot be drawn from thence any inducements for our favoring Spain. It is difficult to admit the reasonableness or justice of the pretensions on her part, which occasion the transactions complained of by Great Britain, and certainly the monopoly at which these pretensions aim is entitled to no partiality from any maritime or trading people. Hence, considerations, neither of justice nor policy, as they respect the immediate cause of the quarrel, incline us toward Spain.
Putting, therefore, all considerations of peculiar good-will to Spain or of predilection to any particular connection out of the question, the argument respecting refusal or consent in the case supposed seems to stand thus:
The acquisition of the Spanish territories bordering upon the United States, by Britain, would be dangerous to us. And if there were a good prospect that our refusal would prevent it, without exposing us to a greater evil, we ought to refuse; but if there be a considerable probability that our refusal would be ineffectual, and if being so it would involve us in war or disgrace, and if positive disgrace is worse than war, and war in our present situation worse than the chances of the evils which may befall us from that acquisition, then the conclusion would be that we ought not to refuse. And this appears to be the true conclusion to be drawn from a comprehensive and accurate view of the subject, though first impressions are on the other side.
These reflections also may be allowed to come in aid of it. Good or evil is seldom as great in the reality as in the prospect. The mischiefs we apprehend may not take place. The enterprise, notwithstanding our consent, may fail. The acquisition, if made, may, in the progress of things, be wrested from its possessors. These if pressed hereafter (and we are willing to accept it), may deem it expedient to purchase our neutrality by a cession to us of that part of the territory in question which borders on the Mississippi, accompanied with a guaranty of the navigation of that river. If nothing of this sort should happen, still the war will necessarily have added millions to the debt of Britain, while we shall be recruiting and increasing our resources and our strength. In such a situation she will have motives of no inconsiderable force for not provoking our resentment. And a reasonable confidence ought to be reposed in the fidelity of the inhabitants of the western country in their attachment to the Union, in their real interest to remain a part of it, and in their sense of danger from the attempt to separate, which, at every hazard, ought to be resisted by the United States.
It is also to be kept in view that the same danger, if not to the same extent, will exist, should the territories in question remain in the hands of Spain.
Besides all this, if a war should ever be deemed a less evil than the neighborhood of the British in the quarter meditated, good policy would still seem to require, as before intimated, that we should avoid putting ourselves in a situation to enter into it till we had stipulated adequate indemnities and considerations for doing so; that we should see a little further into the unravelment of the plot, and be able to estimate what prospect there would be by our interference of obviating the evil. It deserves a reflection, that if those territories have been once wrested from Spain she will be more tractable to our wishes, and more disposed to make the concessions which our interests require, than if they never passed into other hands.
A question occurs here whether there be not a middle course between refusal and consent; to wit, the waiving an answer, by referring the matter to further consideration. But to this there appear to be decisive objections. An evasive conduct in similar cases is never dignified—seldom politic. It would be likely to give satisfaction to neither party—to effect no good—to prevent no ill. By Great Britain it would probably be considered as equivalent to a refusal—as amounting to connivance by Spain—as an indication of timidity by all the world.
It happens that we have a post on the Wabash, down which river the expedition, it is presumable, must go. If the commanding officer at that post has no orders to the contrary, it will be his duty to interrupt the passage of the British troops; if he does, it would seem necessary for them, in order to the safe passage of their boats, with their artillery, stores, provisions, and baggage, to take that post. Here then would be a passage through our territory, not only without our permission, but with the capture of a post of ours, which would be in effect making war upon us. And thus silence, with less dignity, would produce the same ill consequence as refusal.
If, to avoid this, private orders were to be sent to the commanding officer of that post not to interrupt the passage, his not being punished for his delinquency would betray the fact and afford proof of connivance.
The true alternative seems to be to refuse or consent; and, if the first be preferred, to accompany it with an intimation, in terms as free from offence as possible, that dispositions will be made to oppose the passage, if attempted to be forced; and accordingly, as far as practicable, to make and execute such dispositions.
If, on the contrary, consent should be given, it may deserve consideration whether it would not be expedient to accompany it with a candid intimation that the expedition is not agreeable to us, but that thinking it expedient to avoid an occasion of controversy, it has been concluded not to withhold assent. There are, however, objections to this mode. In case of consent, an early and frank explanation should be given to Spain.
Question the Second.—“What notice ought to be taken of the measure, if it should be undertaken without leave, which is the more probable proceeding of the two?”
If leave should be asked and refused, and the enterprise should be prosecuted without it, the manner of treating it has been anticipated—that is, the passage, if practicable, should be opposed; and if not practicable, the outrage should be resented by recourse to arms.
But if the enterprise should be undertaken without asking leave, which is presumed to be the import of the question, then the proper conduct to be observed will depend upon the circumstances.
As the passage contemplated would be by water, and almost wholly through an uninhabited part of the country, over which we have no actual jurisdiction, if it were unaccompanied by any violence to our citizens or posts, it would seem sufficient to be content with remonstrating against it, but in a tone that would not commit us to the necessity of going to war; the objections to which apply with full force here.
But if, as it is to be feared will necessarily be the case, our post on the Wabash should be forced, to make good their passage, there seems to be no alternative but to go to war with them, unwelcome as it may be. It seems to be this, or absolute and unqualified humiliation; which, as has been already noticed, is in almost every situation a greater evil than war.
In every event, it would appear advisable immediately to convene the Legislature; to make the most vigorous measures for war; to make a formal demand for satisfaction; to commence negotiations for alliances; and if satisfaction should be refused, to endeavor to punish the aggressor by the sword.
Secretary of the Treasury.
hamilton to washington
September 30, 1790.
Sir:—I had lately a visit from a certain gentleman, the sole object of which was to make some observations of a delicate nature concerning another gentleman employed on a particular errand; which, as they were doubtless intended for your ear (and, such as they are, ought to be known to you), it is of course my duty to communicate.
He began (in a manner somewhat embarrassed, which betrayed rather more than he seemed to discover) by telling me that, in different companies where he had happened to be in this city (a circumstance, by the way, very unlikely), he had heard it mentioned that that other gentleman was upon terms of very great intimacy with the representative of a certain court at the one where he was employed, and with the head of the party opposed to the minister; and he proceeded to say that, if there were any symptoms of backwardness or coolness in the minister, it had occurred to him that they might possibly be occasioned by such an intimacy; that he had no intimation, however, of this being the case, and that the idea suggested by him was mere matter of conjecture; that he did not even know it was a fact that the intimacy subsisted. But if this should be the case (said he), you will readily imagine that it cannot be calculated to inspire confidence or facilitate free communication. It would not be surprising if a very close connection with the representative of another power should beget doubts and reserves; or if a very familiar intercourse with the head of the opposition should occasion prejudice and distance. Man, after all, is but man; and though the minister has a great mind, and is as little likely as most men to entertain illiberal distrusts or jealousies, yet there is no saying what might be the effect of such conduct upon him. It is hardly possible not to have some diffidence of those who seem to be very closely united with our political or personal enemies or rivals. At any rate, such an intimacy, if it exists, can do no good, but may do some harm.
This, as far as I recollect, was the substance of what he said. My answer was nearly as follows:—
I have never heard a syllable, sir, about the matter you mention. It appears to me, however, very possible that an intimacy with both the persons you mention may exist: with the first, because the situation of the parties had naturally produced such an intimacy while both were in this country, and to have dropped and avoided it there would not have been without difficulty, on the score of politeness, and would have worn an extraordinary and mysterious aspect; with the last, from the patronage of American affairs, which is understood to have been uniformly the part of that gentleman, and, in some degree, from a similarity of dispositions and characters—both brilliant men, men of wit and genius, both fond of the pleasures of society. It is to be hoped that appearances which admit of so easy a solution will not prove an obstacle to any thing which mutual interest dictates. It is impossible that there can be any thing wrong.
He replied, that he certainly had no idea that there could be any thing wrong; but that as trifles often mar great affairs, he thought it best to impart to me his conjecture, that such use might be made of it as should be thought advisable.
I have the honor to be, etc.
P. S.—The letters herewith were, through hurry, omitted in my dispatch of yesterday.
hamilton to jefferson
January 11, 1791.
Dear Sir:—I have perused with attention your intended report to the President, and will, as I am sure is your wish, give you my opinion with frankness.
As far as a summary examination enables me to judge, I agree in your interpretation of the treaty. The exemption sought does not appear to be claimable as a right. But I am not equally well satisfied of the policy of granting it on the ground you suggest. This, in my mind, stands in a very questionable shape. Though there be a collateral consideration, there is a want of reciprocity in the thing itself; and this is a circumstance which materially affects the general policy of our navigation system. The tendency of the measure would be to place French vessels upon an equal footing with our own in our ports, while our vessels in the ports of France may be subjected to all the duties which are there laid on the mass of foreign vessels. I say the mass of foreign vessels, because the title of “most favored nation” is a very extensive one, the terms being almost words of course in commercial treaties. And consequently our own vessels in the carrying trade between the United States and France would be in a worse situation than French vessels. This is the necessary result of equal privileges on one side and unequal on the other, in favor of the vessels of France.
Though, in the present state of the French navigation, little would be to be apprehended from the regulation; yet, when the probable increase of that navigation under a free government is considered, it can hardly be deemed safe to calculate future consequences from the actual situation in this respect.
And if the principle of the regulation cannot be deemed safe in a permanent view, it ought not to be admitted temporarily; for inconvenient precedents are always embarrassing.
On the whole, I should be of opinion that the introduction of such a principle without immediate reciprocity would be a high price for the advantage which it is intended to compensate.
It will, no doubt, have occurred to you that the fund has been mortgaged for the public debt. I do not, however, mention this as an insuperable objection; but it would be essential that the same act which would destroy this source of revenue should provide an equivalent. This I consider as a rule which ought to be sacred, as it affects public credit.
I have the honor to be, etc.
P. S.—If you have any spare set of the printed papers, I should be obliged by having them.
hamilton to jefferson
January 13, 1791.
Dear Sir:—I thank you for the printed papers you have been so obliging as to send.
I cannot forbear a conjecture that the communications of the Chargé des Affaires of France are rather expedients to improve a moment in which it is perceived questions concerning navigation are to be discussed, than the effects of serious instructions from his court.
Be this as it may, I really have not thought of any substitute for your proposition to which objections do not lie. And, in general, I have doubts of the eligibility of ex-parte concessions, liable to be resumed at pleasure. I had rather endeavor, by a new treaty of commerce with France, to extend reciprocal advantages, and fix them on a permanent basis. This would not only be more solid, but it would, perhaps, be less likely, than apparently gratuitous and voluntary exemptions, to beget discontents elsewhere, especially (as ought to be the case) if each party should be at liberty, for equivalent considerations, to grant like privileges to others. My commercial system turns very much on giving a free course to trade, and cultivating good humor with all the world. And I feel a particular reluctance to hazard any thing, in the present state of our affairs, which may lead to a commercial warfare with any Power; which, as far as my knowledge of examples extends, is commonly productive of mutual inconvenience and injury, and of dispositions tending to a worse kind of warfare. Exemptions and preferences which are not the effect of treaty, are apt to be regarded by those who do not partake in them as proofs of an unfriendly temper towards them.
washington to the president of the national assembly of france
Draft by Hamilton.
27th January, 1792.
Sir:—I received with particular satisfaction, and imparted to Congress, the communication made by the President’s letter of the 20th of June last in the name of the National Assembly of France. So peculiar and so signal an expression of the esteem of that respectable body for a citizen of the United States, whose eminent and patriotic services are indelibly engraved on the minds of his countrymen, cannot fail to be appreciated by them as it ought to be. On my part, I assure you, sir, that I am sensible of all its value.
The circumstances which, under the patronage of a monarch who has proved himself to be the friend of the people over whom he reigns, have promised the blessings of liberty to the French nation, could not have been uninteresting to the free citizens of the United States, especially when they recollected the dispositions which were manifested by the individuals as well as by the government of that nation toward their still recent exertions in support of their own rights.
It is with real pleasure, sir, that I embrace the opportunity now afforded me of testifying, through you, to the National Assembly, the sincere, cordial, and earnest wish I entertain, that their labors may speedily issue in the firm establishment of a constitution which, by wisely conciliating the indispensable principles of public order with the enjoyment and exercise of the essential rights of man, shall perpetuate the freedom and happiness of the people of France.
The impressions naturally produced by similarity of political sentiment are justly to be regarded as causes of national sympathy, calculated to confirm the amicable ties which may otherwise subsist between nations. This reflection, independent of its more particular reference, must dispose every benevolent mind to unite in the wish that a general diffusion of the true principles of liberty, assimilating as well as ameliorating the condition of mankind, and fostering the maxims of an ingenuous and virtuous policy, may tend to strengthen the fraternity of the human race, to assuage the jealousies and animosities of its various subdivisions, and to convince them more and more that their true interest and felicity will best be promoted by mutual goodwill and universal harmony.
The friendship to which the President alludes in the close of his letter, has caused me to perceive with particular pleasure that one who had endeared himself to this country by an ardent zeal and by useful efforts in the cause of liberty has, by the same title, acquired the confidence and affection of his own. May it ever be his chief aim to continue to be beloved, as one of her most virtuous and most faithful citizens.
I beg you to accept my acknowledgments for the sentiments in the same letter, which relate more particularly to myself, and at the same time to be assured of the most perfect consideration on the part of, etc.
hamilton to jefferson
April 12, 1791.
Sir:—I have perused the papers communicated to you by the Chargé des Affaires of France.
The propositions to which they relate, as far as they are understood, appear to me inadmissible. The only advantage they offer to the United States is a prolongation of the time of reimbursement. The rate of interest is to remain the same, and the place of payment, according to the probable course of exchange, is to be altered for the worse from Paris to Amsterdam. A premium of five per cent. is also required, while the charges on the loans we make in Holland do not exceed four. There is, however, a proposition which is not understood: it is that the exchange on the sum to be paid at Paris and received at Amsterdam shall be regulated according to the tariff announced in the law of Congress. Now there is nothing in the laws of the United States to which I can apply the term tariff. It is possible, however, that Mr. Short’s letters, when received, may throw light on this point and some others, which may give a different complexion to the business.
But there are various collateral considerations in relation to the transfer of the debt due from the United States to France, affecting the credit and financial operations of this country, which will make it in almost any form a delicate operation.
It is desirable on every account to make expeditious payment to France, but this desire must be conciliated with that of invigorating and perfecting the system of public credit of the United States, and in adhering to this idea there is the additional inducement of a tolerable prospect of satisfying the claims of France in a manner perhaps as expeditious and probably more efficacious than would be incident to an acquiescence in the proposed plan.
I have the honor to be, with great respect, etc.
hamilton to jefferson
April 15, 1791.
Sir:—The letter you sent me from Mr. Short, and others which I have received since mine to you, confirm the views of the subject therein taken. This you will perceive from the following passages extracted from one of them: “Since then (speaking of former overtures) another company has presented itself for the same object, with a scheme by which the United States are to make the sacrifices on which they count for their profits.” “The object of this company is, as you will see, to pay livres tournois in their present depreciated state, and to receive from the United States florins at the usual exchange; by this means France would receive from them as much as she is entitled to receive from us, but we should be obliged to pay the company much more than we are obliged to pay France.” “Had I had powers competent to the purpose, I should not have thought myself justified to have opened such a negotiation, where there was all loss and no prospect of advantage to the United States.” “* * * I must also add that the house which makes these propositions is entirely unknown here, and that France feared even their names at Paris, which proves that it must be an inconsiderable one.” Consequently, the credit of the United States would be in imminent danger of suffering in their hands.
I have authorized Mr. Short to apply a million and a half of florins of the loan he has opened to the use of France, and shall press as large payments as may be practicable to her.
I take it for granted that the court of France will not attempt any operation with the debt without the consent of the United States. Any thing of this sort, considering the efforts which are making on our part to discharge the debt, would certainly be very exceptionable. Indeed, I do not see how any valid disposition of the debt of a sovereign power can be made without its consent; but it would be disagreeable to have to use this argument. I trust it will never be rendered necessary.
hamilton to washington
September 22, 1791.
Sir:—I have received a letter from the Minister of France, of which the enclosed is a copy. Having full authority from you in relation to payments to France, and there being funds out of which that which will constitute the succor requested may with propriety be made, and being fully persuaded that in so urgent and calamitous a case you will be pleased with a ready acquiescence in what is desired, I have not hesitated to answer the Minister that the sum he asks is at his command.
With the most perfect respect and truest attachment, etc.
hamilton to jefferson
Mr. Hamilton presents his respectful compliments to the Secretary of State. He has perused, with as much care and attention as time has permitted, the draft of a letter in answer to that of Mr. Hammond, of March 5th.
Much strong ground has been taken, and strongly maintained, particularly in relation to:
The recommendatory clauses of the treaty;
The previous infractions by Great Britain, as to negroes and posts;
The question of interest.
And many of the suggestions of the British Minister, concerning particular acts and adjudications, as far as can be judged without consulting the documents, appear to be satisfactorily obviated.
But doubts arise in the following particulars:
- 1st. The expediency of the retaliation on the 1st, 2d, and 3d pages. Much of the propriety of what is said depends on the question of the original right or wrong of the war. Should it lead to observations on that point, it may involve an awkward and irritating discussion. Will it not be more dignified, as well as more discreet, to observe, concisely and generally, on the impropriety of having deduced imputations from transactions during the war, and (alluding in the aggregate, and without specification, to the instances of legislative warfare on the part of the British Parliament which might be recriminated) to say that this is foreborne, as leading to an unprofitable and unconciliating discussion?
- 2d. The soundness of the doctrine (page 4), that all governmental acts of the States prior to the 11th of April are out of the discussion. Does not the term “subjects,” to whom, according to Vatel, notice is necessary, apply merely to individuals? Are not States members of the federal league, the parties contractantes, “who are bound by the treaty itself, from the time of its conclusion; that is, in the present case, from the time the provisional treaty took effect, by the ratification of the preliminary articles between France and Britain?”
- 3d. The expediency of so full a justification of the proceedings of certain States with regard to debts. In this respect extenuation rather than vindication would seem to be the desirable course. It is an obvious truth, and is so stated, that Congress alone has the right to pronounce a breach of the treaty, and to fix the measure of retaliation. Not having done it, the States which undertook the task for them, contravened both their federal duty and the treaty. Do not some of the acts of Congress import that the thing was viewed by that body in this light? Will it be well for the Executive now to implicate itself in too strong a defence of measures which have been regarded by a great proportion of the Union, and by a respectable part of the citizens of almost every State, as exceptionable in various lights? May not too earnest an apology for instalment and paper-money laws, if made public hereafter, tend to prejudice, somewhat, the cause of good government, and, perhaps, to affect disadvantageously the character of the general government?To steer between too much concession and too much justification in this particular, is a task both difficult and delicate; but it is worthy of the greatest circumspection to accomplish it.
- 4th. The expediency of risking the implication of the tacit approbation of Congress of the “retaliations of four States” by saying that they neither gave nor refused their sanction to those retaliations. Will not the national character stand better if no ground to suspect the connivance of the national government is afforded? Is it not the fact that Congress were inactive spectators of the infractions which took place, because they had no effectual power to control them?
- 5th. The truth of the position, which seems to be admitted (page 57), that the quality of alien enemy subsisted till the definitive treaty. Does not an indefinite cessation of hostilities, founded too on a preliminary treaty, put an end to the state of war, and consequently destroy the relation of alien enemy?The state of war may or may not revive if points which remain to be adjusted by a definitive treaty are never adjusted by such a treaty; but it is conceived that a definitive treaty may never take place, and yet the state of war and all its consequences be completely terminated.
- 6th. The expediency of grounding any argument on the supposition of either party being in the wrong (as in page 65). The rule in construing treaties is to suppose both parties in the right, for want of a common judge, etc. And a departure from this rule in argument might possibly lead to unpleasant recrimination.
The foregoing are the principal points that have occurred on one perusal. They are submitted without reserve. Some lesser matters struck, which would involve too lengthy a commentary; many of them merely respecting particular expressions. A mark + is in the margin of the places, which will probably suggest to the Secretary of State, on revision, the nature of the reflections which may have arisen. It is imagined that there is a small mistake in stating that Waddington paid no rent.
jefferson to hamilton
March 5, 1792.
Thomas Jefferson will be glad if the Secretary of the Treasury will state the specific propositions he would have made to Spain, on the subject of our fish, grain, and flour, to wit, what he would ask, and what propose as an equivalent. The following considerations will of course occur to him:
- 1. If we quit the ground of the most favored nation, as to certain articles for our convenience, Spain may insist on doing the same for other articles for her convenience, and I apprehend that our commissioners might soon be out of their depth in the details of commerce.
- 2. If we grant favor to the wines, etc., of Spain, Portugal and France will demand the same, and may create the equivalent, the former by laying duties on our fish and grain, the latter by a prohibition of our whale oils, the removal of which will be proposed as the equivalent.
hamilton to jefferson
The general tenor of the report appears solid and proper.
The following observations, however, on a hasty perusal occur.
Page 2. Is it to put our revolution upon the true or the best footing, to say that the circumstances which obliged us to discontinue our foreign magistrate brought upon us the war? Did not the war previously exist and bring on the discontinuance? Was it not rather the cause than the effect?
Is it accurate to say that France aided us in capturing the whole army of the enemy? Does this not imply that there was no other enemy-army in the country; though there were in fact two others, one in New York, another in South Carolina? This last is a mere criticism as to the accuracy of expression. The sense is clear enough.
Page 11. Are “naval victories” the essential means of conquest of a water, as seems to be implied? Is not the conquest of a water an incident to that of territory? If this idea is not sound, that combined with it is,—namely, that in no event could Spain be considered as having conquered the river against the United States, with whom she not only had no war, but was an associate.
Page 12. May it not be inferred from what is said here, that though the United States would not wish to insert an express stipulation against other nations, yet they may be prevailed upon to do it? Would such a stipulation be consistent with the right which Great Britain reserved to herself in the treaty with us? If the influence alluded to is intended to be excluded, will it not be advisable to vary the turn of expression so as to render the intention more unequivocal?
Page 23. Are there conclusive reasons to make it a sine qua non that no phrase shall be admitted which shall express or imply a grant? Could the negotiation with propriety be broken off on such a point?
Is it not rather one to be endeavored to be avoided, than the avoiding of it to be made a sine qua non?
Page 25. Is it true that the United States have no right to alienate an inch of the territory in question, except in the case of necessity, intimated in another place? Or will it be useful to avow the denial of such a right? It is apprehended that the doctrine which restricts the alienation of territory to cases of extreme necessity, is applicable rather to peopled territory than to waste and uninhabited districts. Positions restraining the right of the United States to accommodate to exigencies which may arise, ought ever to be advanced with great caution.
Page 28. Is it true that the stipulation with France respecting the reception of prizes is exclusive and incommunicable? It is doubtless so as against France, but why is it so as against other nations?
It is, however, a stipulation very inconvenient and even dangerous to the United States, and one which ought by all means to be excluded.
Though a treaty of commerce like that contemplated in the report ought not to be rejected, if desired by Spain, and coupled with a satisfactory adjustment of the boundary and navigation, yet ought not something more to be attempted, if it were only to give satisfaction to other parts of the Union? Some positively favorable stipulations respecting our grain, flour, and fish, even in the European dominions of Spain, would be of great consequence, and would justify reciprocal advantages to some of her commodities (say wines and brandies).
Will it not be necessary to add an instruction that the usual stipulation respecting the ratification of the treaty by the United States be varied, so as to be adapted to the participation of the Senate?
Last page. The words “nor in assenting to their rights” have a pencil line drawn through them. ’T is certainly best to obliterate them.
The less commitment the better.
hamilton to washington
November 19, 1792.
Sir:—I have carefully reflected on the application of Mr. Ternant for an additional supply of money for the use of the colony of St. Domingo, on account of the debt due to France, which I regard more and more as presenting a subject extremely delicate and embarrassing.
Two questions arise: first as to the ability of the United States to furnish the money, which is stated at about $326,000, in addition to the sum remaining of the $400,000, some time since promised; second as to the propriety of doing it on political considerations.
With regard to ability, I feel little doubt that it will be in the power of the Treasury to furnish the sum; yet circumstanced as we are, with the possibility of more extensive demands than at present exist for exigencies of a very serious nature, I think it would not be desirable to be bound by a positive stipulation for the entire amount. With regard to the propriety of the measure on political considerations, more serious difficulties occur.
The late suspension of the king, which is officially communicated, and the subsequent abolition of royalty by the convention, which the newspapers announce with every appearance of authenticity, essentially change, for the moment, the condition of France.
If a restoration of the king should take place, I am of opinion that no payment which might be made in the interval would be deemed regular or obligatory. The admission of it to our credit would consequently be considered as matter of discretion, according to the opinion entertained of its merit and utility. A payment to the newly constituted power, as a reimbursement, in course, or in any manner which would subject it to be used in support of the change, would doubtless be rejected.
An advance, however, to supply the urgent necessities of a part of the French Empire, struggling under the misfortune of an insurrection, of the nature of that which has for some time distressed the colony of St. Domingo, and now exposed to the danger of total ruin by famine, is of a different complexion. Succors furnished in such a situation, under due limitations, would be so clearly an act of humanity and friendship, of such evident utility to the French Empire, that no future government could refuse to allow a credit for them without a disregard of moderation and equity. But the claim for such credit would not be of a nature to be regularly and of course valid; consequently would be liable to be disputed.
The condition in which the colony has lately placed itself, by espousing the last change which has been made in France, operates as a serious difficulty in the case, and may be made a ground of objection to any aid which may be given them.
There is even a question whether there be now any organ of the French nation which can regularly ask the succor, whether the commission to Mr. Ternant be not virtually superseded.
It is also an objection (in the view of regularity and validity) to the supply asked, that the decree of the National Assembly, on which it is founded, contemplated a negotiation between the executive power in France and our minister there. The channel has not been pursued, and no substitute has been provided. The business wants organization in every sense.
From these premises, I deduce that nothing can be done without risk to the United States; that, therefore, as little as possible ought to be done; that whatever may be done should be constantly restricted to the single idea of preserving the colonyfrom destruction by famine; that, in all communications on the subject, care should be taken to put it on this footing, and even to avoid the explicit recognition of any regular authority in any person.
Under these cautions and restrictions (but not otherwise), I beg leave to submit it as my opinion, that succors ought to be granted, notwithstanding the degree of risk which will attend it; that they should be effected by occasional advances, without previous stipulation, and with only a general assurance that the United States, disposed to contribute by friendly offices to the preservation of an important portion of the French Empire, and to that of French Algiers, from the calamity of famine, will endeavor, from time to time, as far as circumstances shall permit, to afford means of sustenance.
According to a statement of Mr. De la Forèt, the provisions desired to be shipped in the course of November would amount to $83,000, including the total supply of fish and oil. Towards this, he computes the application of $50,000 out of the remainder of the $400,000 heretofore promised, which would leave a deficiency of $33,800. This sum, or in round numbers $40,000, can be engaged to be furnished; and in December, if no future circumstances forbid, a further sum can be engaged to be supplied, payable at a future short period.
It will be proper, that the most precise measures should be taken to ascertain from time to time the investment of the moneys supplied, in purchasing and forwarding provisions from this country to the colony in question.
It has been heretofore understood that the balance of the sum some time since stipulated was to be furnished, which accordingly has been and is doing.
Engagements for supplies have been entered into upon the basis of that stipulation, and payments to as great if not a greater amount are becoming due, in which the citizens of the United States are materially interested.
The caution which is deemed necessary, has reference not only to the safety of the United States in a pecuniary aspect, but to the consideration of avoiding a dangerous commitment, which may ever prove a source of misunderstanding between this country and the future government of the French nation.
From all that is hitherto known, there is no ground to conclude that the governing power, by the last advices, will be of long duration.
washington to hamilton
April 18, 1793.
Sir:—The posture of affairs in Europe, particularly between France and Great Britain, places the United States in a delicate situation, and requires much consideration as to the measures which it will be proper for them to observe in the war between those Powers. With a view to forming a general plan of conduct for the Executive, I have stated and inclosed sundry questions, to be considered preparatory to a meeting at my house to-morrow, where I shall expect to see you at nine o’clock, and to receive the result of your reflections thereon.
- Question 1.—Shall a proclamation issue for the purpose of preventing interferences of the citizens of the United States in the war between France and Great Britain, etc.? Shall it contain a declaration of neutrality or not? What shall it contain?
- Question 2.—Shall a minister from the republic of France be received?
- Question 3.—If received, shall it be absolutely, or with qualifications; and if with qualifications, of what kind?
- Question 4.—Are the United States obliged, by good faith, to consider the treaties heretofore made with France, as applying to the present situation of the parties? May they either renounce them, or hold them suspended till the government of France shall be established?
- Question 5.—If they have the right, is it expedient to do either, and which?
- Question 6.—If they have an option, would it be a breach of neutrality to consider the treaties still in operation?
- Question 7.—If the treaties are to be considered as now in operation, is the guaranty in the treaty of alliance applicable to a defensive war only, or to war either offensive or defensive?
- Question 8.—Does the war in which France is engaged appear to be offensive or defensive on her part, or of a mixed and equivocal character?
- Question 9.—If of a mixed and equivocal character, does the guaranty, in any event, apply to such a war?
- Question 10.—What is the effect of a guaranty, such as that to be found in the treaty of alliance between the United States and France?
- Question 11.—Does any article in either of the treaties prevent ships of war, other than privateers, of the Powers opposed to France, from coming into the ports of the United States, to act as convoys to their own merchantmen? or does it lay other restraints upon them, more than would apply to the ships of war of France?
- Question 12.—Should the future regent of France send a minister to the United States, ought he to be received?
- Question 13.—Is it necessary or advisable to call together the two Houses of Congress, with a view to the present posture of European affairs? If it is, what should be the particular objects of such a call?
April 19, 1793.
At a meeting of the Heads of Departments, and the Attorney-General, at the President’s, April 19, 1793, to consider the foregoing questions proposed by the President, it was determined by all, on the first question, that a proclamation shall issue, forbidding our citizens to take part in any hostilities on the seas, with or against any of the belligerent Powers; and warning them against carrying to any such Powers, any of those articles deemed contraband, according to the modern usage of nations; and enjoining them from all acts and proceedings inconsistent with the duties of a friendly nation towards those at war.
On the second question, “Shall a minister from the republic of France be received?” it was unanimously agreed that he shall be received.
The remaining questions were postponed for further consideration.
hamilton to washington
Question the Third proposed by the President of the United States.—“If a minister from the republic of France shall be received, shall it be absolutely, or with qualifications; and if with qualifications, of what kind?”
It is conceived to be advisable that the reception of the expected minister from the republic of France should be qualified by a previous declaration, substantially to this effect: “That the Government of the United States, uniformly entertaining cordial wishes for the happiness of the French nation, and disposed to maintain an amicable communication and intercourse, uninterrupted by political vicissitudes, does not hesitate to receive him in the character which his credentials import; yet, considering the origin, course, and circumstances of the relations originally contracted between the two countries, and the existing position of the affairs of France, it is deemed advisable and proper, on the part of the United States, to reserve to future consideration and discussion the question—whether the operation of the treaties by which those relations were formed, ought not to be deemed temporarily and provisionally suspended; and under this impression, it is thought due to a spirit of candid and friendly procedure to apprise him beforehand of the intention to reserve that question, lest silence on the point should occasion misconstruction.”
The grounds of this opinion are as follow:
The treaties between the United States and France were made with His Most Christian Majesty, his heirs and successors. The government of France which existed at the time those treaties were made, gave way, in the first instance, to a new constitution, formed by the representatives of the nation, and accepted by the king, which went into regular operation. Of a sudden a tumultuous rising took place. The king was seized, imprisoned, and declared to be suspended by the authority of the National Assembly, a body delegated to exercise the legislative functions of the already established government—in no shape authorized to divest any other of the constituted authorities of its legal capacities or powers. So far, then, what was done was a manifest assumption of power.
To justify it, it is alleged to have been necessary for the safety of the nation, to prevent the success of a counter-revolution meditated or patronized by the king.
On the other side, it is affirmed that the whole transaction was merely the execution of a plan which had been for some time projected, and had been gradually ripening, to bring about an abolition of the royalty and the establishment of a republican government.
No satisfactory proof is known to have been produced to fix upon the king the charges which have been brought against him.
On the other hand, declarations have escaped from characters who took a lead in the measure of suppressing the royalty, which seem to amount to a tacit acknowledgment that the events of the 10th of August were the result of a premeditated plan of the republican party to get rid of the monarchical power, rather than a necessary counteraction of mischievous designs on the part of the king.
Mr. De Malsherbes, one of the counsel of the king, makes this striking reflection on the point.
The events of the 10th of August were followed on the 2d and 3d of September with the massacre of a great number of persons in different parts of France, including several distinguished individuals who were known to be attached either to the ancient government, or to the constitution which had succeeded to it.
The suspension of the king was accompanied by a call upon the primary assemblies to depute persons to represent them in a convention, in order to the taking of such measures as the exigency of the conjuncture might require.
Under circumstances not free from precipitation, violence, and awe, deputies to a national convention were chosen. They assembled on the 17th of September, 1792, at Paris, and on the very day of their meeting decreed the abolition of royalty.
They proceeded in the next place to organize a temporary provisional government, charged with managing the affairs of the nation till a constitution should be established.
As a circumstance that gives a complexion to the course of things, it is proper to mention that the Jacobin Club at Paris (a society which, with its branches in different parts of France, appears to have had a prevailing influence over the affairs of the country), previous to the meeting of the convention, entered into measures with the avowed object of purging the convention of those persons, favorers of royalty, who might have escaped the attention of the primary assemblies.
In the last place, the late king of France has been tried and condemned by the convention, and has suffered death.
Whether he has suffered justly or unjustly, whether he has been a guilty tyrant or an unfortunate victim, is at least a problem. There certainly can be no hazard in affirming that no proof has yet come to light sufficient to establish a belief that the death of Louis is an act of national justice.
It appears to be regarded in a different light throughout Europe, and by a numerous and respectable part, if not by a majority, of the people of the United States.
Almost all Europe is or seems likely to be armed in opposition to the presentrulers of France, with the declared or implied intention of restoring, if possible, the royalty in the successor of the deceased monarch.
The present war, then, turns essentially on the point—What shall be the future government of France? Shall the royal authority be restored in the person of the successor of Louis, or shall a republic be constituted in exclusion of it?
Thus stand the material facts which regard the origin of our connections with France, and the obligations or dispensations that now exist.
They have been stated, not with a view to indicate a definitive opinion concerning the propriety of the conduct of the present rulers of France, but to show that the course of the revolution there has been attended with circumstances, which militate against a full conviction of its having been brought to its present stage by such a free, regular, and deliberate act of the nation, and with such a spirit of justice and humanity, as ought to silence all scruples about the validity of what has been done, and the morality of aiding it, if consistent with policy.
This great and important question arises out of the facts which have been stated:
Are the United States bound, by the principles of the laws of nations, to consider the treaties heretofore made with France as in present force and operation between them and the actual governing powers of the French nation? or may they elect to consider their operation as suspended, reserving also a right to judge finally whether any such changes have happened in the political affairs of France as may justify a renunciation of those treaties?
It is believed that they have an option to consider the operation of those treaties as suspended, and will have eventually a right to renounce them, if such changes shall take place as can bona fide be pronounced to render a continuance of the connections which result from them disadvantageous or dangerous.
There are two general propositions which may be opposed to this opinion:—1st. That a nation has a right, in its own discretion, to change its form of government—to abolish one, and substitute another. 2d. That real treaties (of which description those in question are) bind the nations whose governments contract, and continue in force notwithstanding any changes which happen in the forms of their government.
The truth of the first proposition ought to be admitted in its fullest latitude. But it will by no means follow, that, because a nation has a right to manage its own concerns as it thinks fit, and to make such changes in its political institutions as itself judges best calculated to promote its interests, it has therefore a right to involve other nations, with whom it may have had connections, absolutely and unconditionally, in the consequences of the changes which it may think proper to make. This would be to give to a nation or society not only a power over its own happiness, but a power over the happiness of other nations or societies. It would be to extend the operation of the maxim much beyond the reason of it, which is simply, that every nation ought to have a right to provide for its own happiness.
If, then, a nation thinks fit to make changes in its government, which render treaties that before subsisted between it and another nation useless, or dangerous, or hurtful to that other nation, it is a plain dictate of reason, that the latter will have a right to renounce those treaties; because it also has a right to take care of its own happiness, and cannot be obliged to suffer this to be impaired by the means which its neighbor or ally may have adopted for its own advantage, contrary to the ancient state of things.
But it may be said, that an obligation to submit to the inconveniences that may ensue arises from the other maxim which has been stated—namely, that real treaties bind nations, notwithstanding the changes which happen in the forms of their governments.
All general rules are to be construed with certain reasonable limitations. That which has been just mentioned must be understood in this sense,—that changes in forms of government do not of course abrogate real treaties; that they continue absolutely binding on the party which makes the change, and will bind the other party, unless, in due time and for just cause, he declares his election to renounce them; that in good faith he ought not to renounce them, unless the change which happened does really render them useless, or materially less advantageous, or more dangerous than before. But for good and sufficient cause he may renounce them.
Nothing can be more evident than that the existing forms of government of two nations may enter far into the motives of a real treaty. Two republics may contract an alliance, the principal inducement to which may be a similarity of constitutions, producing a common interest to defend their mutual rights and liberties. A change of the government of one of them into a monarchy or despotism may destroy the inducement and the main link of common interest. Two monarchies may form an alliance on a like principle, their common defence against a powerful neighboring republic. The change of the government of one of the allies may destroy the source of common sympathy and common interest, and render it prudent for the other ally to renounce the connection and seek to fortify itself in some other quarter.
Two nations may form an alliance because each has confidence in the energy and efficacy of the government of the other. A revolution may subject one of them to a different form of government—feeble, fluctuating, and turbulent, liable to provoke wars, and very little fitted to repel them. Even the connections of a nation with other foreign powers may enter into the motives of an alliance with it. If a dissolution of ancient connections shall have been a consequence of a revolution of government, the external political relations of the parties may have become so varied as to occasion an incompatibility of the alliance with the Power which had changed its constitution with the other connections of its ally—connections perhaps essential to its welfare.
In such cases, reason, which is the touchstone of all similar maxims, would dictate that the party whose government had remained stationary would have a right, under a bona-fide conviction that the change in the situation of the other party would render a future connection detrimental or dangerous, to declare the connection dissolved.
Contracts between nations as between individuals must lose their force where the considerations fail.
A treaty pernicious to the state is of itself void, where no change in the situation of either of the parties takes place. By a much stronger reason it must become voidable at the option of the other party, when the voluntary act of one of the allies has made so material a change in the condition of things as is always implied in a radical revolution of government.
Moreover, the maxim in question must, I presume, be understood with this further limitation—that the revolution be consummated—that the new government be established, and recognized among nations—that there be an undisputed organ of the national will to obtain the performance of the stipulations made with the former government.
It is not natural to presume that an ally is obliged to throw his weight into either scale, where the war involves the very point—what shall be the government of the country; and that, too, against the very party with whom the formal obligations of the alliance have been contracted.
It is more natural to conclude, that in such a case the ally ought either to aid the party with whom the contract was immediately made, or to consider the operation of the alliance as suspended. The latter is undoubtedly his duty, rather than the former, where the nation appears to have pronounced the change.
A doctrine contrary to that here supported may involve an opposition of moral duties, and dilemmas of a very singular and embarrassing kind.
A nation may owe its existence or preservation entirely, or in a great degree, to the voluntary succors which it derived from a monarch of a country—the then lawful organ of the national will, the director of its sword and its purse, the dispenser of its aid and its favors. In consideration of the good offices promised or afforded by him, an alliance may have been formed between the monarch, his heirs and successors, and the country indebted to him for those good offices—stipulating future co-operation and mutual aid. This monarch, without any particular crime on his part, may be afterwards deposed and expelled by his nation, or by a triumphant faction, which may, perhaps, momentarily direct the nation’s voice. He may find in the assistance of neighboring powers friendly to his cause the means of endeavoring to reinstate himself.
In the midst of his efforts to accomplish this purpose, the ruling powers of the nation over which he had reigned call upon the country which had been saved by his friendship and patronage, to perform the stipulations expressed in the alliance made with him, and embark in a war against their friend and benefactor—on the suggestion, that the treaty being a real one, the actual rulers of the nation have a right to claim the benefit of it.
If there be no option in such case, would there not be a most perplexing conflict of opposite obligations?—of the faith supposed to be plighted by the treaty, and of justice and gratitude toward a man from whom essential benefits had been received, and who could oppose the formal and express terms of the contract to an abstract theoretic proposition? Would genuine honor, would true morality permit the taking a hostile part against the friend and benefactor, being at the same time the original party to the contract?
Suppose the call of the actual rulers to be complied with, and the war to have been entered into by the ally. Suppose the expelled monarch to have re-entered his former dominions, and to have been joined by one half of his former subjects—how would the obligation then stand? He will now have added to the title of being the formal party to the contract, that of being the actual possessor of one half the country and of the wishes of one half the nation.
Is it supposable that in such a case the obligations of the alliance can continue in favor of those by whom he had been expelled? or would they then revert again to the monarch? or would they fluctuate with the alternations of good and ill fortune attending the one or the other party? Can a principle which would involve such a dilemma be true? Is it not evident that there must be an option to consider the operation of the alliance as suspended during the contest concerning the government—that, on the one hand, there may not be a necessity of taking part with the expelled monarch against the apparent will of the nation, or, on the other, a necessity of joining the ruling powers of the moment against the immediate party with whom the contract was made, and from whom the consideration may have flowed?
If the opinions of writers be consulted, they will, as far as they go, confirm the sense of the maxim which is here contended for.
Grotius, while he asserts the general principle of the obligation of real treaties upon nations, notwithstanding the changes in their governments, admits the qualification which has been insisted upon, and expressly excepts the case where it appears that the motive to the treaty was “peculiar to the form of government, as when free states enter into an alliance for the defence of their liberties.”—Book Ⅱ., Chap. ⅩⅥ., § 16, No. 1.
And Vatel, who is the most systematic of the writers on the laws of nations, lays down the qualification in the greatest latitude. To give a correct idea of his meaning, it will be of use to transcribe the entire section. It is found in Book Ⅱ., Ch. ⅩⅡ., § 197.
“What is the obligation of a real alliance, when the king, who is the ally, is driven from the throne?
“The same question,” says he (to wit, that stated above), “presents itself in real alliances made, and in general in all alliances made with the state, and not in particular with a king for the defence of his person. An ally ought doubtless to be defended against every invasion, against every foreign violence, and even against his rebellious subjects; in the same manner, a republic ought to be defended against the enterprises of one who attempts to destroy the public liberty. But it ought to be remembered that an ally of the state or the nation is not its judge. If the nation has deposed its king in form—if the people of a republic have driven out their magistrates and set themselves at liberty, or acknowledged the authority of a usurper, either expressly or tacitly, to oppose these domestic regulations by disputing their justice or validity would be to interfere with the government of a nation, and do it an injury. The ally remains the ally of the state, notwithstanding the change which has happened in it. However, when this change renders the alliance useless, dangerous, or disagreeable, it may renounce it; for it may say, upon a good foundation, that it would not have entered into an alliance with that nation had it been under the present form of government.”
It is not perceived that there is any ambiguity of expression, or any other circumstance, to throw the least obscurity upon the sense of the author. The precise question he raises is: What is the obligation of a real alliance, when the king, who is the ally, is driven from the throne? He concludes, after several intermediate observations, that the ally remains the ally of the State, notwithstanding the change which has happened. Nevertheless, says he, when the change renders the alliance useless, dangerous, or disagreeable, it may be renounced.
It is observable, that the question made by writers always is, whether, in a real alliance, when the king who is the ally is deposed, the ally of the deposed king is bound to succor and support him. And though it is decided by the better opinions, as well as by the reason of the thing, that there is not an obligation to support him against the will of the nation, when his dethronement is to be ascribed to that source, yet there is never a single suggestion, on the other hand, of the ally of such dethroned king being obliged to assist his nation against him. The most that appears to be admitted in favor of the decision of the nation is, that there is no support due to the dethroned prince.
Puffendorf puts this matter upon very proper grounds. Referring to the opinion of Grotius, who with too much latitude lays it down, “that a league made with a king is valid, though that king or his successors be expelled the kingdom by his subjects, for though he has lost his possession, the right to the crown still remains in him,” he makes the following observation: “To me, so much in this case seems to be certain, that if the terms of the league expressly mention and intend the defence of the prince’s person and family, he ought to be assisted in the recovery of his kingdom. But if the league was formed for public good only, ’t is a disputable point whether the exiled prince can demand assistance in virtue of his league. For the aids mentioned are presumed to have been promised against foreign enemies, without view of this particular case. Not but that still such a league leaves liberty to assist a lawful prince against a usurper.”
The presumption here stated is a natural and proper one, and in its reason applies to both sides—to the exiled prince who should demand succors against his nation, and to the nation who, having dethroned its prince, should demand succor to support the act of dethronement and establish the revolution. The ally in such case is not bound to come in aid of either party, but may consider the operation of the alliance as suspended till the competition about the government is decided.
What a difference is there between asserting it to be a disputable point, whether the ally of a dethroned prince, in the case of a real treaty, is not bound to assist him against the nation, and maintaining that the ally is bound at all events to assist the nation against him! For this is the consequence of asserting that such a treaty ipso facto attaches itself to the body of the nation, even in the course of a pending revolution, and without option either to suspend or renounce.
If the practice of nations be consulted, neither will that be found to confirm the proposition, that the obligation of real treaties extends unconditionally to the actual governors of nations, whatever changes take place. In the books which treat on the subject, numerous examples of the contrary are quoted. The most prevailing practice has been to assist the ancient sovereign. In the very instance to which this discussion relates, this is the course which a great part of Europe directly or indirectly pursues.
It may be argued by way of objection to what has been said, that admitting the general principle of a right for sufficient cause to renounce, yet still, as the change in the present case is from a monarchy to a republic, and no sufficient excuse hitherto exists for a renunciation, the possibility of its arising hereafter in the progress of events, does not appear a valid reason for resorting to the principle in question. To this the answer is, that no government has yet been instituted in France in lieu of that which has been pulled down; that the existing political powers are, by the French themselves, denominated provisional, and are to give way to a constitution to be established.
It is therefore impossible to foresee what the future government of France will be; and in this state of uncertainty, the right to renounce resolves itself into, of course, a right to suspend. The one is a consequence of the other; applicable to the undetermined state of things. If there be a right to renounce when the change of government proves to be of a nature to render an alliance useless or injurious there must be a right, amidst a pending revolution, to wait to see what change will take place.
Should it be said that the treaty is binding now, no objectionable change having yet taken place, but may be renounced hereafter, if any such change shall take place:
The answer is, that it is not possible to pronounce at present what is the quality of the change. Every thing is in transitu. This state of suspense, as to the object of option, naturally suspends the option itself. The business may, in its progress, assume a variety of forms. If the issue may not be waited for, the obligations of the country may fluctuate indefinitely—be one thing to-day, another to-morrow; a consequence which is inadmissible.
Besides, the true reasoning would seem to be that to admit the operation of the treaties, while the event is pending, would be to take the chance of what that event shall be, and would preclude a future renunciation.
Moreover, the right to consider the operation of the treaties as suspended, results from this further consideration, that during a pending revolution, an ally in a real treaty is not bound to pronounce between the competitors.
The conclusion from the whole is, that there is an option in the United States to hold the operation of the treaties suspended; and that in the event, if the form of government established in France shall be such as to render a continuance of the treaties contrary to the interests of the United States, they may be renounced.
If there be such an option, there are strong reasons to show that the character and interests of the United States require, that they should pursue the course of holding the operation of the treaties suspended.
Because it was from Louis ⅩⅥ., the then sovereign of the country, that they received those succors which were so important in the establishment of their independence and liberty. It was with him, his heirs, and successors, that they contracted their engagements—by which they obtained those precious succors.
It is enough, on their part, to respect the right of the nation to change its government, so far as not to side with the successors of the dethroned prince; as to receive their ambassador, and keep up an amicable intercourse; as to be willing to render every good office, not contrary to the duties of a real neutrality.
To throw their weight into the scale of the new government would, it is to be feared, be considered by mankind as not consistent with a decent regard to the relations which subsisted between them and Louis ⅩⅥ.; as not consistent with a due sense of the services they received from that unfortunate prince; as not consistent with national delicacy and decorum.
The character of the United States may also be concerned in keeping clear of any connection with the present government of France in other views.
A struggle for liberty is in itself respectable and glorious; when conducted with magnanimity, justice, and humanity, it ought to command the admiration of every friend to human nature; but if sullied by crimes and extravagances, it loses its respectability. Though success may rescue it from infamy, it cannot, in the opinion of the sober part of mankind, attach to it much positive merit or praise. But in the event of a want of success, a general execration must attend it.
It appears, thus far, but too probable, that the pending revolution of France has sustained some serious blemishes. There is too much ground to anticipate that a sentence uncommonly severe will be passed upon it if it fails.
Will it be well for the United States to expose their reputation to the issue, by implicating themselves as associates? Will their reputation be promoted by a successful issue? What will it suffer by the reverse?
These questions suggest very serious considerations to a mind anxious for the reputation of the country—anxious that it may emulate a character of sobriety, moderation, justice, and love of order.
The interest of the United States seems to dictate the course recommended, in many ways:
- I. In reference to their character, from the considerations already stated.
- II. In reference to their peace.
As the present treaties contain stipulations of military succors and military aids, in certain cases which are likely to occur, there can be no doubt, that if there be an option to consider them as not binding, as not in operation, the considering them as binding, as in operation, would be equivalent to making new treaties of similar import; and it is a well-settled point, that such stipulations entered into, pending a war, or with a view to a war, is a departure from neutrality.
How far the parties opposed to France may think fit to treat us as enemies, in consequence of this, is a problem which experience only can solve; the solution of which will probably be regulated by their views of their own interest—by the circumstances which may occur; and it is far from impossible that these will restrain them, so long as we, in fact, take no active part in favor of France.
But if there be an option to avoid it, it can hardly be wise to incur so great an additional risk and embarrassment, to implicate ourselves in the perplexities which may follow.
With regard to the good effect of the conduct which is advocated upon the Powers at war with France, nothing need be said.
Even considering our interest with reference to France herself, some reasons may be urged in favor of considering the treaties as suspended.
It seems to be the general if not the universal sentiment, that we ought not to embark in the war.
Suppose the French islands attacked, and we called upon to perform the guaranty. To avoid complying with it, we must either say: That the war being offensive on the part of France, the casus fÆderis does not exist; or, that as our co-operation would be useless to the object of the guaranty, and attended with more than ordinary danger to ourselves, we cannot afford it.
Would the one or the other be satisfactory to France?
The first would probably displease—the last would not please. It is, moreover, the most questionable and the least reputable of all the objections which a nation is allowed to oppose to the performance of its engagements. We should not, therefore, be much more certain of avoiding the displeasure of the present ruling powers of France, by considering the treaties as in operation, than by considering their operation as suspended; taking it for granted that we are in either case to observe a neutral conduct in fact.
But suppose the contest unsuccessful on the part of the present governing powers of France, what would then be our situation with the future government of that country?
Should we not be branded and detested by it as the worst of ingrates?
When it is added, that the restoration of the monarchy would be very naturally attributed to the interposition of Great Britain, the reflection just suggested acquires peculiar weight and importance.
But against this may be placed the consideration, that in the event of the success of the present governing powers, we should stand on much worse ground, by having considered the operation of the treaties as suspended, than by having pursued a contrary conduct.
This is not clear, for the reasons just given; unless we are also willing, if called upon, to become parties in the war. But admitting that the course of considering the treaties as in present operation would give us a claim of merit with France, in the event of the establishment of the republic, our affairs with that country would not stand so much the better on this account, as they would stand worse for giving operation to the treaties, should the monarchy be restored.
We should still have to offer a better claim to the friendship of France than any other Power—the not taking side with her enemies, the early acknowledgment of the republic by the reception of its minister, and such good offices as have been and may be rendered, consistently with a sincere neutrality.
The reasons, too, which induced us not to go further, will have their due weight in times that shall restore tranquillity and moderation and sober reflection! They will justify us even to France herself.
Is there not, however, danger that a refusal to admit the operation of the treaties might occasion an immediate rupture with France?
A danger of this sort cannot be supposed, without supposing such a degree of intemperance on the part of France as will finally force us to quarrelwith her or to embark with her. And if such be her temper, a fair calculation of hazards will lead us to risk her displeasure in the first instance. An inquiry naturally arises of this kind: Whether from the nature of the treaties they have any such intrinsic value as to render it inexpedient to put them in jeopardy by raising a question about their operation or validity?
Here, it may freely be pronounced, there is no difficulty. The military stipulations they contain are contrary to that neutrality in the quarrels of Europe, which it is our true policy to cultivate and maintain. And the commercial stipulations to be found in them present no peculiar advantages.
They seem to us nothing or scarcely any thing which an inevitable course of circumstances would not produce. It would be our interest, in the abstract, to be disengaged from them, and take the chance of future negotiation, for a better treaty of commerce.
It might be observed, by way of objection to what has been said, that an admission of the operation of the treaties has been considered as equivalent to taking part with France.
It is true that the two things have been considered as equivalent to each other, and in strict reasoning this ought to be the case.—Because,
- 1. If there be an option, the effect of not using it would be to pass from a state of neutrality to that of being an ally—thereby authorizing the Powers at war with France to treat us as an enemy.
- 2. If under the operation of the treaties we are not bound to embark in the war, it must be owing either to casualty or inability.
If the war is not offensive on the part of France, an attack on the West India Islands would leave us no escape but in the plea of inability.
The putting ourselves in a situation, in which it might so happen that we could preserve our neutrality under no other plea than that of inability, is, in all the politico-legal relations of the subject, to make ourselves a party. In other words, the placing ourselves in a position in which it would depend on casualty whether it would not become our duty to engage in the war, ought, in a general question of establishing or recognizing a political relation with a foreign Power embarked in war, to be regarded in the same light as the taking part with that Power in the war.
To do a thing, or to contract or incur an obligation of doing it, are not in such a question materially different.
There remain some miscellaneous views of the subject, which will serve to fortify the general reasoning
- I. The conduct of the present government of France gives a sanction to other nations to use some latitude of discretion in respect to their treaties with the former government. That government, it is understood, has formally declared null various stipulations of the ancient government with foreign Powers, on the principle of their in applicability to the new order of things. Were it to be urged, that an erroneous conduct on the part of France will not justify a like conduct on our part, it might be solidly replied, that a rule of practice formally adopted by any nation for regulating its political obligations towards other nations, may justly be appealed to as a standard for regulating the obligations of those nations toward her. Suppose this general ground to have been explicitly taken by France, that all treaties made by the old government became void by the Revolution, unless recognized by the existing authority, can it be doubted that every other nation would have had a right to adopt the same principle of conduct towards France? It cannot. By parity of reasoning, as far as France may in practice have pursued that principle, other nations may justifiably plead the example.
- II. In addition to the embarrassments heretofore suggested as incident to the admission of the present operation of the treaties, this very particular one may attend our case. An island may be taken by Great Britain, or Holland, with the avowed intention of holding it for the future king of France, the successor of Louis ⅩⅥ. Can it be possible that a treaty made with Louis ⅩⅥ. should oblige us to embark in the war to rescue a part of his dominions from his immediate successor? Under all the circumstances of the case, would the national integrity of delicacy permit it? Was it clear that Louis merited his death as a perfidious tyrant, the last question might receive a different answer from what can now be given to it!Ought the United States to involve themselves in a dilemma of this kind?
- III. In national questions, the general conduct of nations has great weight. When all Europe is, or is likely to be, armed in opposition to the authority of the present government of France, would it not be to carry theory to an extreme, to pronounce that the United States are under an absolute, indispensable obligation, not only to acknowledge respectfully the authority of that government, but to admit the immediate operation of treaties, which would constitute them at once its ally?
- IV. Prudence, at least, seems to dictate the course of reserving the question in order that further reflection and a more complete development of circumstances shall enable us to make a decision both right and safe. It does not appear necessary to precipitate the fixing of our relations to France beyond the possibility of retraction. It is putting too suddenly too much to hazard.
It may be asked—Does not an unqualified reception of the minister determine the point?
Perhaps it does not; yet there is no satisfactory guide by which to decide the precise import and extent of such a reception by which to pronounce that it would not conclude us as to the treaties. There is great room to consider the epoch of receiving a minister from the republic as that whenwe ought to explain ourselves on the point in question—and silence at that time as a waiver of our option.
It is probable that on the part of France it will be urged to have this effect; and if it should be truly so considered by her, to raise the question afterwards would lead to complaint, accusation, ill humor.
It seems most candid and most safe to anticipate—not to risk the imputation of inconsistency. It seems advisable to be able to say to foreign Powers, if questioned: “In receiving the minister of France, we have not acknowledged ourself its ally. We have reserved the point for future consideration.”
It may be asked, whether the reception, at any rate, is not inconsistent with the reservation recommended.
It does not appear to be so. The acknowledgment of a government by the reception of its ambassador, and the acknowledgment of it as an ally, are things different and separable from each other. However, the first, where a connection before existed between the two nations, may imply the last, if nothing is said; this implication may clearly be repelled, by a declaration that it is not the intention of the party. Such a declaration would be in the nature of a protest against the implication; and the declared intent would govern. It is a rule that “expressum facit cessare tacitum.”
It may likewise be asked whether we are not too late for the ground proposed to be taken—whether the payment on account of the debt to France, subsequent to the last change, be not an acknowledgment that all engagements to the former government are to be fulfilled to the present.
The two objects of a debt in money, and a treaty of alliance, have no necessary connection. They are governed by considerations altogether different and irrelative.
The payment of a debt is a matter of perfect and strict obligation. It must be done at all events. It is to be regulated by circumstances of time and place, and ought to be done with precise punctuality.
In the case of a nation, whoever acquires possession of its political power, whoever becomes master of its goods, of the national property, must pay all the debts which the government of the nation has contracted.
In like manner, on the principle of reciprocity, the sovereign in possession is to receive the debts due to the government of the nation. These debts are at all events to be paid; and possession alone can guide as to the party to whom they are to be paid.
Questions of property are very different from those of political connection.
Nobody can doubt that the debt due to France is at all events to be paid, whatever form of government may take place in that country.
As little is it be doubted, that it is possible for a form of government to take place in France, justifying the dissolution of a political connection which before subsisted with that country.
Treaties between nations are capable of being affected by a great variety of considerations, casualities, and contingencies. Forms of government, it is evident, may be the considerations of them. Revolutions of government, by changing those forms, may consequently vary the obligations of parties.
Hence the payment of a debt to the sovereign in possession does not imply an admission of the present operation of political treaties. It may so happen, that there is a strict obligation to pay the debt, and a perfect right to withdraw from the treaties.
And while we are not bound to expose ourselves to the resentment of the governing power of France, by refusing to pay a debt at the time and place stipulated; so neither are we bound, pending a contested revolution of government, to expose ourselves to the resentment of other nations, by declaring ourselves the ally of that power, in virtue of treaties contracted with a former sovereign, who still pursues his claim to govern, supported by the general sense and arm of Europe.
hamilton to washington
May 2, 1793.
Answers to remaining questions proposed by the President of the United States on the 18th of April last
Question 4.—Are the United States obliged by good faith to consider the treaties heretofore made with France as applying to the present situation of the parties? May they either renounce them or hold them suspended till the government of France shall be established?
Answer.—The war is plainly an offensive war on the part of France. Burlemaqui, an approved writer, Vol. Ⅱ., Part Ⅳ., Chapter Ⅲ., sec. 4 and 5, thus defines the different species of war: “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 satisfaction for the injury received, is always upon the defensive. There are a great many unjust acts which may kindle a war, and which, however, are not the war, as the ill treatment of a prince’s ambassador, 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. An offensive war is, therefore, unjust only when it is undertaken without a lawful cause; and then the defensive war, which on other occasions might be unjust, becomes just.
“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.”
This definition of offensive and defensive war is conformable to the ideas of writers on the laws of nations in general, and is adopted almost verbatim by Barbeyrac, in his notes on Ⅲ. and Ⅳ. of Book Ⅶ., Chap. Ⅵ., Puffendorf’s Law of Nature and Nations.
France, it is certain, was the first to declare war against every one of the Powers with which she is at war. Whether she had good cause or not, therefore, in each instance, the war is completely offensive on her part.
The forms which she has employed in some of her declarations (when, after reciting the aggressions she alleges to have been committed against her by a particular Power, she proceeds to pronounce that war exists between her and such Power) cannot alter the substance of the thing. The aggressions complained of, if ever so well founded, and however they may have been of a nature to kindle the war, were not the war itself. The war began, in each case, by the declaration and by the commencement of hostilities on the part of France. It was, therefore, clearly offensive on her part.
With regard to the causes that led to the war in each case, it requires more exact information than I have to pronounce upon them with confidence. As regards Austria and Prussia, the suggestion on one hand is, that a combination was formed to overthrow the new constitution of France, and that the declaration on the part of the latter country was only an anticipation of what would soon have proceeded from the confederated Powers. On the other hand, it is affirmed that the preparations and arrangements on their part were merely provisional and eventual, and that the republican party in France precipitated a war under the idea that it would furnish opportunities for accusing and criminating the king’s administration, and finally overthrow the royalty. Waiving all definitive opinion on this point, better guides will enable us to pronounce with more certainty in the other cases.
In respect to Holland, there seems to be no doubt that the aggression began with France.
France, in different treaties, had recognized a right in the Dutch to the exclusive navigation of the river Scheldt.
It appears that she had a leading agency in adjusting a controversy on this point, between the late Emperor Joseph and the Netherlands.
The 28th article of a treaty between those parties, concluded at Fontainebleau the 8th of November, 1785, is in these words:
“His most Christian Majesty contributed to the completion of the arrangement made between the high contracting parties (namely, the Emperor and the States General), by his friendly intervention and his effectual and just mediation. His said Majesty is requested by the high contracting parties to charge himself likewise with being the guaranty of the present treaty.”
Nevertheless, the provisionary Executive Council, by a decree of the 16th of November, 1792, break through all these formal and express engagements, on the pretext of their being contrary to natural right, and declare the navigation of the Scheldt and Meuse free.
Such an infraction of treaties, on such a ground, cannot be justified without subverting all the foundations of positive and pactitious right among nations. It is equally agreeable to the doctrine of theorists, and to the practice of nations, that rights to the common use of waters of the description in question, may be relinquished and qualified by treaty. To resume them, therefore, on the ground of the imprescriptibility, as it is called, of natural rights, is to set up a new rule of conduct, contrary to the common sense and common practice of mankind, amounting, in the party which attempts the resumption, to an unequivocal injury to the party against which it is attempted.
In respect to Great Britain the case is not equally clear; but there is sufficient ground to pronounce, that she had cause of complaint, prior to any given on her part.
It is known that in the early periods of the French Revolution she adopted the ground of neutrality, and nothing is alleged against her till after the 10th of August.
That event led her to withdraw her minister from the court of France; but before his departure, he left a note declarative of the intention of Great Britain to pursue still a pacific course, accompanied, indeed, with a cautious intimation that personal violence to the king would excite the general indignation of Europe.
But it will hardly be affirmed that this procedure amounted to an aggression. To recall a minister from, or not to keep one at, any court, is of itself an act of indifference. To recall, under such circumstances as took place on the 10th of August, was not an extraordinary step. Every government had a right to deliberate, and was bound for its own safety to consider well, when it would recognize a new order of things. The keeping of a minister at France, after the deposition of the king, might be deemed a sanction of the change, and, indeed, was useless, until it was intended to give that sanction.
It was not therefore incumbent upon any Power to pursue this course, especially one which was not in the condition of an ally.
The intimation with regard to the king, to characterize it in the most exceptionable light, was at most an act of officiousness. Relating to a thing not at the time in agitation, it could only be considered as a caution to avoid a measure which might beget misunderstanding.
The conduct of France shows that she did not at the time consider this step as an injury, for she continued a minister at the court of London, and continued to negotiate.
The next step of Great Britain in order of time, which is complained of by France, and the first of a really hostile complexion, is the restriction on the exportation of corn to France, by way of exception to a general permission to export that article.
This was an unfriendly measure. It happened, as far as I am able to trace it, in the latter part of December, 1792.
But prior to these causes of dissatisfaction, an alarm had been given by France to Great Britain
The Convention, on the 19th of November, passed a decree in these words:
“The National Convention declare, in the name of the French nation, that they will grant fraternity and assistance to every people who wish to recover their liberty; and they charge the executive power to send the necessary orders to the generals to give assistance to such people, and to defend those citizens who may have been or who may be vexed for the cause of liberty.” Which decree was ordered to be printed in all languages.
This decree ought justly to be regarded in an exceptionable light by the government of every country. For though it be lawful and meritorious to assist a people in a virtuous and rational struggle for liberty, when the particular case happens, yet it is not justifiable in any government or nation to hold out to the world a general invitation and encouragement to revolution and insurrection, under a promise of fraternity and assistance.
Such a step is of a nature to disturb the repose of mankind, to excite fermentation in every country, to endanger government everywhere. Nor can there be a doubt that wheresoever a spirit of this kind appears, it is lawful to repress and repel it.
But this generally exceptionable proceeding might be looked upon by Great Britain as having a more particular reference to her, from some collateral circumstances.
It is known that various societies were instituted in Great Britain with the avowed object of reforms in the government. These societies presented addresses to the Convention of France, and received answers, containing an interchange of sentiments justly alarming to the British Government.
It will suffice, by way of illustration, to cite passages from two of these answers, each given by the President of the Convention, at a sitting on the 28th of November: one, to a deputation from the Society for Constitutional Information in London; the other, to a deputation of English and Irish citizens at Paris.
“The shades of Penn, of Hampden, and of Sydney 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. Again 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 feodalty; and the declaration of rights placed by the side of thrones is a devouring fire which will consume them. Worthy Republicans,” etc.
Such declarations to such societies are a comment upon the decree, are in every sense inconsistent with what was due to a just respect for a neutral nation, and amounted to so direct a patronage of a revolution, in the essential principles of its government, as authorized even a declaration of war.
It is true that Mr. Chauvelin, in a note to Lord Grenville, of the 27th of December, 1792, declares that the “National Convention never meant that the French Republic should favor insurrections, should espouse the quarrels of a few seditious persons, or should endeavor to excite disturbances in any neutral or friendly country; the decree being only applicable to a people who, after having acquired their liberty, should call for the fraternity, the assistance of the Republic, by the solemn and unequivocal expression of the general will.”
But this explanation could not change the real nature and tendency of the decree, which, holding out a general promise of fraternity and assistance to every people who wished to recover their liberty, did favor insurrections, and was calculated to excite disturbances in neutral and friendly countries.
Still less could it efface the exceptionable and offensive nature of the reception which was given, and the declarations which were made, to the revolutionary or reforming societies of Great Britain.
The answer of Lord Grenville very justly observes, that “Neither satisfaction nor security is found in the terms of an explanation which still declares to the promoters of sedition in every country, what are the cases in which they may count beforehand on the support and succor of France, and which reserves to that country the right of mixing herself in the internal affairs of another, whenever she shall judge it proper, and on principles incompatible with the political institutions of all the countries of Europe.”
Besides the declarations which have been mentioned to the different English societies, and which apply particularly to Great Britain, there are other acts of France which were just causes of umbrage and alarm to all the governments of Europe.
Her decree of the 15th of December is one of them. This decree, extraordinary in every respect, which contemplates the total subversion of all the ancient establishments of every country into which the arms of France should be carried, has the following article:
“The French nation declare—That it will treat as enemies the people who, refusing or renouncing liberty and equality, are desirous of preserving their prince and privileged casts, or of entering into an accommodation with them. The nation promises and engages not to lay down its arms until the sovereignty and liberty of the people, on whose territories the French armies shall have entered, shall be established, and not to consent to any arrangement or treaty with the prince and privileged persons so dispossessed, with whom the republic is at war.”
This decree cannot but be regarded as an outrage little short of a declaration of war against every government of Europe, and as a violent attack upon the freedom of opinion of all mankind.
The incorporation of the territories conquered by the arms of France with France herself, is another of the acts alluded to, as giving just cause of umbrage and alarm to neutral nations in general. It is a principle well established by the laws of nations, that the property and dominion of conquered places do not become absolute in the conquerors, until they have been ceded or relinquished by a treaty of peace or some equivalent termination of the war.
Till then it is understood to be in a state of suspense (the conqueror having only a possessory and qualified title), liable to such a disposition as may be made by the compact which terminates the war. Hence the citizen of the neutral nation can acquire no final or irrevocable title to land by purchase of the conqueror during the continuance of the war. This principle, it is evident, is of the greatest importance to the peace and security of nations—greatly facilitating an adjustment of the quarrels in which they happen at any time to be involved.
But the incorporation which has been mentioned, and which actually took place with respect to the territories of different Powers, Savoy, Antwerp, etc., was a direct violation of that very important and fundamental principle; and of those rights which the laws of war reserve to every Power at war; a violation tending to throw insuperable difficulties in the way of peace. After once having adopted those territories as part of herself, she became bound to maintain them to the last extremity by all those peremptory rules which forbid a nation to consent to its own dismemberment.
That incorporation, therefore, changed entirely the principle of the war on the part of France. It ceased to be a war for the defence of her rights, for the preservation of her liberty. It became a war of acquisition, of extension of territory and dominion, and in a manner altogether subversive of the laws and usages of nations, and tending to the aggrandizement of France, to a degree dangerous to the independence and safety of every country in the world.
There is no principle better supported by the doctrines of writers, the practice of nations, and the dictates of right reason, than this—that whenever a nation adopts maxims of conduct tending to the disturbance of the tranquillity and established order of its neighbors, or manifesting a spirit of self-aggrandizement, it is lawful for other nations to combine against it, and by force to control the effects of those maxims and that spirit. The conduct of France in the instances which have been stated, calmly and impartially viewed, was an offence against nations, which naturally made it a common cause among them to check her career.
The pretext of propagating liberty can make no difference. Every nation has a right to carve out its own happiness in its own way, and it is the height of presumption in another to attempt to fashion its political creed.
These acts and proceedings are all prior in time to the last aggressive step of Great Britain, the ordering out of the kingdom the person who was charged with a diplomatic mission to that court from the government of France.
The style and manner of that proceeding rendered it undoubtedly an insult, and if the conduct of France before that time had been unexceptionable, the war declared by France, though offensive in its nature, would have been justifiable in its motive.
With regard to Spain, the war was likewise declared by France, and is consequently offensive on her part. The conduct of the former towards the latter, previous to this event, appears not only to have been moderate, but even timid.
The war on the part of Portugal appears to have been offensive.
The result from what has been said is, that the war in which France is engaged is in fact an offensive war on her part against all the Powers with which she is engaged, except one; and in principle, to speak in the most favorable terms for her, is at least a mixed case—a case of mutual aggression.
The inference from this state of things is as plain as it is important. The casus fœderis of the guaranty in the treaty of alliance between the United States and France cannot take place, though her West India Islands should be attacked.
The express denomination of this treaty is “Traité d’ Alliance eventuelle et defensive”—Treaty of Alliance eventual and defensive.
The second article of the treaty also calls it a “defensive alliance.” This, then, constitutes the leading feature, the characteristic quality of the treaty. By this principle every stipulation in it is to be judged.
hamilton to washington
May 15. 1793.
State of facts as supposed
Mr. Genet, Minister Plenipotentiary from the Republic of France, arrives in Charleston. There he causes two privateers to be fitted out, to which he issues commissions to cruise against the enemies of France. There also the privateers are manned, and partly with citizens of the United States, who are enlisted or engaged for the purpose without the privity or permission of the government of this country, before even Mr. Genet has delivered his credentials, or been recognized as a public minister. One or both of these privateers make captures of British vessels in the neighborhood of our coast, and bring or send their prizes into our ports. The British Minister Plenipotentiary, among other things, demands a restitution of these prizes. Ought the demand to be complied with?
I am of opinion that it ought to be complied with, and for the following reasons.
The proceedings in question are highly exceptionable, both as they respect our rights and as they make us an instrument of hostilities against Great Britain.
The jurisdiction of every independent nation within its own territories naturally excludes all exercise of authority by any other government within those territories, unless by its own consent, or in consequence of stipulations in treaties. Every such exercise of authority, therefore, not warranted by consent or treaty, is an intrusion on the jurisdiction of the country within which it is exercised, and amounts to an injury and affront, more or less great, according to the nature of the case.
The equipping, manning, and commissioning of vessels of war—the enlisting, levying, or raising of men for military service, whether by land or sea, all which are essentially of the same nature, are among the highest and most important exercises of sovereignty.
It is, therefore, an injury and an affront of a very serious kind, for one nation to do acts of the above description within the territories of another, without its consent or permission.
This is a principle so obvious in itself, that it does not stand in need of confirmation from authorities; yet the following passage from Vatel, as to one of the points included in the case, is so pertinent and forcible, that it cannot be improper to quote it. It is found Book Ⅲ., Chap. Ⅱ., sec. 15, in these words; “As the right of levying soldiers belongs solely to the nation, so no person is to enlist soldiers in a foreign country without the permission of the sovereign. They who undertake to enlist soldiers in a foreign country, without the sovereign’s permission, and in general, whoever alienates the subjects of another, violates one of the most sacred rights both of the prince and of the state. Foreign recruiters are hanged immediately, and very justly; as it is not to be presumed that their sovereign ordered them to commit the crime; and if they did receive such an order, they ought not to obey it, their sovereign having no right to command what is contrary to the law of nature. It is not, I say, apprehended that these recruiters act by order of their sovereign, and usually they who have practised seduction only are, if taken, severely punished. If they have used violence, and made their escape, they are claimed, and the men they have carried off demanded. Butif it appears that they acted by order, such a proceeding in a foreign sovereign is justly considered as an injury, and as a sufficient cause for declaring war against him, unless he condescends to make suitable reparation.”
The word soldier, here made use of, is to be understood to mean all persons engaged or enlisted for military service, seamen as well as landsmen. The principle applies equally to the former as to the latter. This, it is imagined, will not be questioned.
In the case under consideration, there was neither treaty nor consent to warrant what was done; and the case is much stronger than a mere levying of men.
The injury and insult to our government, then, under the facts stated, cannot be doubted. The right to reparation follows of course. It remains to inquire whether we are under an obligation to redress any injury which may have accrued to Great Britain from the irregularity committed towards us. The existence of such an obligation is affirmed upon the following grounds:
It is manifestly contrary to the duty of a neutral nation to suffer itself to be made the instrument of hostility by one Power at war against another. In doing it, such nation becomes an associate, a party.
The United States would become effectually an instrument of hostility to France against the other Powers at war, if France could, ad libitum, build, equip, and commission, in their ports, vessels of war—man those vessels with their seamen—send them out of their ports to cruise against the enemies of France—bring or send the vessels and property taken from those enemies into their ports—dispose of them there; with a right to repeat these expeditions as often as she should find expedient.
By the same rule, that France could do these things, she could issue commissions among us at pleasure for raising any number of troops—could march those troops toward our frontiers—attack from thence the territories of Spain or England—return with the plunder which had been taken within our territories—go again on new expeditions, and repeat them as often as was found advantageous.
There can be no material difference between the two cases—between preparing the means in, and carrying on from our ports naval expeditions, and preparing the means in, and carrying on from our territories land expeditions against the enemies of France. The principle in each case would be the same.
And from both or either would result a state of war between us and those enemies, of the worst kind for them, as long as it was tolerated. I say a state of war of the worst kind, because while the resources of our country would be employed in annoying them, the instruments of this annoyance would be occasionally protected from pursuit by the privileges of our ostensible neutrality.
It is easy to see that such a state of things would not be tolerated longer than till it was perceived, and that we should quickly and with good reason be treated as an associate of the power whose instrument we had been made.
If it is inconsistent with the duties of neutrality to permit the practices described to an indefinite extent, it must be alike inconsistent with those duties to permit them to any extent. The quality of the fact, not the degree, must be the criterion.
It has indeed been agreed that we are bound to prevent the practices in question in future, and that an assurance shall be given to the British minister, that effectual measures will be taken for that purpose.
But it is denied that we are bound to interpose, to remedy the effects which have hitherto ensued.
The obligation to prevent an injury, usually, if not universally, includes that of repairing or redressing it when it has happened.
If it be contrary to the duty of the United States as a neutral nation, to suffer cruisers to be fitted out of their ports to annoy the British trade, it comports with their duty to remedy the injury which may have been sustained, when it is in their power so to do.
If it be said that what was done took place before the government could be prepared to prescribe a preventive, and that this creates a dispensation from the obligation to redress, the answer is:
That a government is responsible for the conduct of all parts of a community over which it presides; that it is to be supposed to have at all times a competent police everywhere to prevent infractions of its duty toward foreign nations; that in the case in question, the magistracy of the place ought not to have permitted what was done, and that the government is answerable for the consequences of its omissions.
It is true that in a number of cases a government may excuse itself for the non-performance of its duty, on account of the want of time to take due precautions, from the consideration of the thing having been unexpected and unforeseen, etc.; and justice often requires that excuses of this kind, bona fide offered, should be admitted as satisfactory.
But such things are only excuses, not justifications, and they are only then to be received when a remedy is not within the reach of the party.
If the privateers expedited from Charleston had been sent to the French dominions, there to operate out of our reach, the excuse of want of time to take due precautions ought to have been satisfactory to Great Britain. But now that they have sent their prizes into our ports, that excuse cannot avail us. We have it in our power to administer a specific remedy, by causing restitution of the property taken, and it is conceived to be our duty to do so. It is objected to this, that the commissions which were issued are valid between the parties at war, though irregular with respect to us; that the captures made under them are therefore valid captures, vesting the property in the captors, of which they cannot be deprived without a violation of their rights, and an aggression on our part.
It is believed to be true that the commissions are in a legal sense valid as between the parties at war. But the inference drawn from this position does not seem to follow.
It has been seen that what has been done on the part of the French is a violation of our rights, for which we have a claim to reparation, and a right to make war, if it be refused. We may reasonably demand, then, as the reparation to which we are entitled, restitution of the property taken, with or without an apology for the infringement of our sovereignty. This we have a right to demand, as a species of reparation consonant with the nature of the injury, and enabling us to do justice to the party, in injuring whom we have been made instrumental. It can therefore be no just cause of complaint on the part of the captors, that they are required to surrender a property, the means of acquiring which took their origin in a violation of our rights.
On the other hand, there is a claim upon us to arrest the effects of the injury or annoyance to which we have been made accessory. To insist, therefore, upon the restitution of the property taken will be to enforce a right, in order to the performance of a duty.
The effects of captures under the commissions, however valid between the parties at war, have no validity against us. Originating in a violation of our rights, we are nowise bound to respect them.
Why, then, (it may be asked) not send them to the animadversion and decision of the courts of justice? Because it is believed they are not competent to the decision; the whole is an affair between the governments of the parties concerned, to be settled by reasons of state, not rules of law.
’T is the case of an infringement of our sovereignty, to the prejudice of a third party; in which the government is to demand a reparation, with the double view of vindicating its own rights, and doing justice to the suffering party.
A comparison of this case with that of contraband articles can only mislead—a neutral nation has a general right to trade with a Power at war. The exception of contraband articles is an exception of necessity; it is a qualification of the general right of the neutral nation in favor of the safety of the belligerent party. And it is from this cause, and the difficulty of tracing it in the course of commercial dealings, that for the peace of nations, the external penalty of confiscation is alone established. The neutral nation is only bound to abandon its subjects to that penalty, not to take internal measures to prevent and punish the practice. The state of peace between two nations, on the other hand, makes it intrinsically criminal in either nation, or in the subjects of either, to engage in actual hostilities against the other. The sovereign of each nation is bound to prevent this by internal regulations and measures; and of course to give redress where the offence has been committed.
What has been agreed to be done in the present case acknowledges the distinction and establishes the consequences. While it was refused to interfere to prevent the shipment of arms, it has been agreed that measures should be taken towards punishing our citizens who engaged on board the privateers; and to assure the British minister that effectual measures would be taken to prevent a repetition of the thing complained of. Hence a recognized distinction of principle, and a virtual recognition of the consequences contended for.
As little to the purpose is the example of cases in which particular nations permit the levying of troops among them by the parties at war. The almost continually warlike posture of Europe, can alone have produced the toleration of a practice so inconsistent with morality and humanity; but allowing these examples their full force, they are at an infinite distance from the case of raising, equipping, and organizing, within the neutral territory an armed force—sending it on expeditions against a party at war, and bringing back their spoils into the neutral country.
If the view which has been taken of the subject be a just one, Great Britain will have a right to consider our refusal to cause restitution to be made, as equivalent to our becoming an accomplice in the hostility—as a departure from neutrality—as an aggression upon her. Hence we shall furnish the cause of war, and endanger the existence of it.
I infer, then, that we equally owe it to ourselves, and to Great Britain, to cause restitution to be made of the property taken. In the case of so palpable and serious a violation of our rights, aggravated by several collateral circumstances, the mention of which is purposely waived, a decided conduct appears most consistent with our honor and with our future safety.
hamilton to jefferson
June 3, 1793.
Sir:—It was not till within an hour that I received your letter of the 1st, with the papers accompanying it. I approve all the drafts of letters as they stand, except that I have some doubts about the concluding sentence of that on the subject of Henfield. If the facts are (as I presume they are) established, may it not be construed into a wish that there may be found no law to punish a conduct in our citizens which is of a tendency dangerous to the peace of the nation, and injurious to Powers with whom we are on terms of peace and neutrality?
I should also like to substitute, for the words, “have the favorable issue you desire,” these words, “issue accordingly.”
I retain till to-morrow the paper relating to an agent to the Choctaws. My judgment is not entirely made up on the point—the state of my family and my own health having prevented due reflection upon it.
With great respect, I have the honor to be, etc.
hamilton to washington
June 5, 1793.
The Secretary of the Treasury, to whom were referred, by the President of the United States, sundry documents communicated by the Minister Plenipotentiary of the Republic of France, respectfully makes the following report thereupon:
The object of the communication appears to be to engage the United States to enter into arrangements for discharging the residue of the debt which they owe to France by an anticipated payment of the instalments not yet due, either in specie, bank bills of equal currency with specie, or in government bonds, bearing interest, and payable at certain specified periods, upon condition that the sum advanced shall be invested in productions of the United States for the supply of the French dominions.
This object is the same which came under consideration on certain propositions lately made by Col. W. S. Smith, who appears to have been charged by the Provisional Executive Council of France with a negotiation concerning it; in reference to which it was determined by the President, with the concurring opinions of the Heads of Departments, and the Attorney-General, that the measure was ineligible, and that the proposer would be informed that it did not consist with the arrangements of the government to adopt it.
The grounds of the determination were purely political—nothing has hitherto happened to weaken them. The decision on the application of the Minister Plenipotentiary of France will therefore naturally correspond with that on the propositions of Col. Smith. This, indeed, is signified to be the intention of the President.
It consequently only remains to make known the determination to the minister, in answer to his application, with or without reasons.
The following considerations seems to recommend a simple communication of the determination without reasons, viz.:
- I. The United States not being bound by the terms of their contract to make the anticipated payment desired, there is no necessity for a specification of the motives for not doing it.
- II. No adequate reasons but the true ones can be assigned for the non-compliance, and the assignment of these would not be wholly without inconvenience. The mention of them might create difficulties in some future stage of affairs, when they may have lost a considerable portion of their force.
The following answer, in substance, is presumed, then, to be the most proper which can be given:
“That a proposition to the same effect was not long since brought forward by Col. Smith, as having been charged with a negotiation on the subject by the Provisional Executive Council of France. That it was then, upon full consideration, concluded not to accede to the measure, for reasons which continue to operate, and consequently lead at this time to the same conclusion; that an explanation of these reasons would with pleasure be entered into, were it not for the considerations that it could have no object of present utility, and might rather serve to occasion embarrassments in future.”
Which is humbly submitted.
The above having been communicated by the President to me, I wrote the following letter.
jefferson to washington
June 6, 1793.
Sir:—I cannot but think that to decline the propositions of Mr. Genet, on the subject of our debt, without assigning any reason at all, would have a very dry and unpleasant aspect indeed. We are, then, to examine what are good reasons for the refusal, which of them may be spoken out, and which not.
- 1. Want of confidence in the continuance of the present form of government, and consequently the advance to them might commit us with their successors. This cannot be spoken out.
- 2. They propose to take the debt in produce. It would be better for us that it should be done in moderate masses, yearly, than in one year. This cannot be professed.
- 3. When Mr. de Calonne was Minister of Finance, a Dutch company proposed to buy up the whole of our debt, by dividing it into actions or shares. I think Mr. Claviere, now Minister of Finance, was their agent. It was observed to Mr. de Calonne, that to create such a mass of American paper, divide it into shares, and let them deluge the market, would depreciate them, the rest of our paper, and our credit in finance; that the credit of a nation was a delicate and important thing, and should not be risked in such an operation. Mr. de Calonne, sensible of the injury of the operation to us, declined it. In May, 1791, there came through Mr. Otto a similar proposition from S. J. & Co. We had received letters on the subject from Mr. Short, urging this same reason strongly. It was referred to the Secretary of the Treasury, who, in a letter to yourself, assigned the reasons against it, and these were communicated to Mr. Otto, who acquiesced in them. This objection, then, having been sufficient to decline the proposition twice before, and having been urged to the two preceding forms of government (the ancient, and that of 1791), will it not be considered by them as founded in objections to the present form?
- 4. The law allows the whole debt to be paid only on condition it can be done on terms advantageous to the United States. The minister foresees this objection, and thinks he answers it by observing the advantage which the payment in produce will occasion. It would be easy to show that this was not the sort of advantage the Legislature meant, but a lower rate of interest.
- 5. I cannot but suppose that the Secretary of the Treasury, who is much more familiar than I am with the money operations of the Treasury, would, on examination, be able to derive practical objections from them. We pay to France but five per cent. The people of this country would never subscribe their money but for six. If to remedy this obligation at less than five per cent. were offered and accepted by Mr. Genet, he must part with them immediately at a considerable discount to indemnify the loss of the one per cent., and at a still greater discount to bring them down to par with our present six per cents., so that the operation would be equally disgraceful to us and losing to them, etc., etc.
I think it very material myself to keep alive the friendly sentiments of that country, as far as can be done without risking war or double payments. If the instalments falling due in this year can be advanced without incurring more dangers, I should be for doing it. We now see by the declaration of the Prince of Saxe Coburg, on the part of Austria and Prussia, that the ultimate point they desire is to restore the Constitution of 1791. Were this even to be done before the pay days of this year, there is no doubt in my mind but that that government (as republican as the present except in the form of its Executive) would confirm an advance so moderate in sum and time.
I am sure the nation of France would never suffer their government to go to war with us for such a bagatelle, and the more surely if that bagatelle shall have been granted by us so as to please and not to displease the nation, so as to keep their affections engaged on our side; so that I should have no fear in advancing the instalments of this year at epochs convenient to the Treasury, but at any rate I should be for assigning reasons for not changing the form of the debt.
These thoughts are very hastily thrown on paper, as will be but too evident. I have the honor to be, with sentiments of sincere attachment and respect, sir,
Your most obedient and most humble servant,
jefferson to washington
The President concurring with the preceding letter, and so signifying to Col. Hamilton, he erased the words, “which is humbly submitted,” in the former report, and added in the same paper as follows:
“If, nevertheless, the President should be of opinion that reasons ought to be assigned, the following seem to be the best which the nature of the case will admit, viz.:
“Two modes of reimbursing or discharging by anticipation the residue of the debt which the United States owes to France are proposed.
“The first, by a payment in specie, or bank bills having a currency equal with specie, which amounts to the same thing.
“The second, by government bonds, bearing interest, and payable at certain specified periods.
“With regard to the first expedient, the resources of the Treasury of the United States do not admit of its being adopted. The government has relied for the means of reimbursing the foreign debt of the country on loans to be made abroad; the late events in Europe have thrown a temporary obstacle in the way of these loans, producing an inability to make anticipated payments of sums hereafter to grow due.
“With regard to the second expedient, it has repeatedly come under consideration, and has uniformly been declined as ineligible. The government has perceived and continues to perceive great inconvenience to its credit, tending to the derangement of its general operations of finance, in every plan which is calculated to throw suddenly upon the market a large additional sum of its bonds. The present state of things, for obvious reasons, would serve to augment the evil of such a circumstance; while the existing and possible exigencies of the United States admonish them to be particularly cautious, at the present juncture, of any measure which may in any degree serve to impair or hazard their credit.
“These considerations are the more readily yielded to, from a belief that the utility of the measure to France might not, on experiment, prove adequate to the sacrifices which she would have to make on the sale of the bonds.
“All which is humbly submitted.”
This being put into my hands by the President, I wrote the following note.
jefferson to washington
June 17, 1793.
Th. Jefferson has the honor of returning to the President the Report of the Secretary of the Treasury on the proposition of Mr. Genet. He is of the opinion that all may be omitted which precedes the words, “Two modes of reimbursing,” etc., which follows “of the reasons that are proper and not offensive.” The following passage should perhaps be altered: “It has repeatedly come under consideration, and has uniformly been declined as ineligible.” The present proposition varies from that repeatedly offered in the circumstances which are of some importance, and is accordingly made by the minister, viz., the offer to take the payment in the produce of the United States. A very slight alteration will qualify this expression—thus agreeing to the fact without abating the force of the argument.
hamilton To Washington
8th June, 1793.
Sir:—I have the honor to send you a report on the communication from the Minister Plenipotentiary of France, respecting the reimbursement of the residue of the debt of the United States to that country, altered in conformity to your desire; and to be, with perfect respect, etc.
June 8, 1793.
The Secretary of the Treasury, to whom was referred a communication from the Minister Plenipotentiary of the Republic of France, on the subject of the debt of the United States to France, respectfully makes thereupon the following report:
The object of this communication is to engage the United States to enter into an arrangement for discharging the residue of the debt which they owe to France by an anticipated payment of the instalments not yet due, either in specie or bank bills of equal currency with specie, or in government bonds bearing interest and payable at certain specified periods, upon condition that the sum advanced shall be invested in productions of the United States for the supply of the French dominions.
With regard to the first expedient, namely, a payment in specie or bank bills, the resources of the Treasury of the United States do not admit of its being adopted. The government has relied for the means of reimbursing its foreign debt on new loans to be made abroad. The late events in Europe have thrown a temporary obstacle in the way of these loans—producing, consequently, an inability to make payment, by anticipation of the residue of the debt hereafter to grow due.
With regard to the second expedient, that of government bonds payable at certain specified periods, this in substance, though in other forms, has repeatedly come under consideration, and has as often been declined as ineligible. Great inconveniences to the credit of the government, tending to derange its general operations of finance, have been and must continue to be perceived, in every plan which is calculated to throw suddenly upon the market a large additional sum of its bonds. The present state of things, for obvious reasons, would serve to augment the evil of such a circumstance; while the existing and possible exigencies of the United States admonish them to be particularly cautious, at this juncture, of any measure which may tend to hazard or impair their credit.
These considerations greatly outweigh the advantage, which is suggested as an inducement to the measure (the condition respecting which, is the principal circumstance of difference between the present and former propositions), to arise from an investment of the sum to be advanced in the products of the country; an advantage on which perhaps little stress can be laid, in the present and probable state of foreign demand for those products.
The motives which dissuade from the adoption of the proposed measure may, it is conceived, be the more readily yielded to from the probability that the utility of it to France might not, on experiment, prove an equivalent for the sacrifices which she might have to make in the disposition of the bonds.
hamilton to jefferson
June 10, 1793.
Sir:—The Comptroller of the Treasury has reported to me, that on examining the subsisting contracts between the United States and the government of France and the Farmers General, and a comparison thereof with the foreign accounts and documents transmitted to the Treasury, the following facts appear:
That previous to the treaty of February, 1778, the sum of three millions of livres had been advanced by the government of France to the agents of the United States, under the title of gratuities, for which no reimbursement was to be made.
That the payments, which composed the before-mentioned sum of three millions of livres, are stated, in a letter of Mr. Durival to Mr. Grand, dated in 1786, to have been made at the following periods:
One million delivered by the Royal Treasury the 10th of June, 1776, and two other millions advanced also by the Royal Treasury in 1777, on four receipts of the deputies of Congress, of the 17th of January, 3d of April, 10th of June, and 15th of October of the same year.
In the accounts of Mr. Ferdinand Grand, banker of the United States, the following sums are credited, viz.:
|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.)