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no jacobin 1 - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 5 
The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 5.
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It is publicly rumored in this city that the minister of the French republic has threatened to appeal from the President of the United States to the people.
Various publications which have recently appeared in the papers, particularly that under the signature of “Juba,” in the National Gazette of the 10th instant, and that under the signature of “A Jacobin,” in the General Advertiser of Friday last, seem to have begun the appeal.
Several traits in the latter carry conjectures of the writer to the source of the threatened appeal. The idiom of it is evidently foreign, and it abounds in terms and phrases which are said by those who have access to him to be frequently in the mouth of the supposed author. That the idiom is foreign, will appear to a competent judge of the English language, from the structure of every sentence; but there are particular expressions which will prove it even to those who have no very accurate knowledge of it. Witness these extracts: “I cannot be convinced that a plan of this kind should be approved by Congress or the people of the United States,”—“through a desire of giving a proof of the loyalty and confidence which ought to exist between the agents of free nations.” The word “loyalty” in the English language is only used to denote fidelity to a prince, to a lover, or to a mistress. In the French it is a familiar expression of good faith, candor, sincere dealing, etc.
That it probably proceeds from the source of the threatened appeal, is to be inferred from the positive assertion of things which, if true, can only be known to the principal officers of the general government, and to the public agents of France. It is said that orders were given to the military to take possession of a French vessel without previous complaint, explanation, or communication with the agents of the French republic. Again, it is said, the minister of France caused the Grange1 to be returned upon a simple request of the American government. Declarations like these could only with propriety be made with so much peremptoriness by parties to the transaction.
Indeed, they seem intended to dismiss even the appearance of concealment. Let us now see in what manner the heavy charges of breach of treaty, which are brought against the executive of the general government, are supported.
The first is the detention of French vessels armed in the ports of the United States; which is said to be contrary to the 22d Article of the Treaty of Commerce between the United States and France.
The words of the French original upon which this construction is put, are as follows: “Il ne sera permis a aucun corsaire étranger non appartenant a quelque sujet de sa majesté tres chretienne ou a aucun citoyen des dits Etats Unis, lequel aura un commission de la part d’un prince ou d’une puissance en guerre avec l’une des deux nations, d’armer leurs vaissaux dans les ports de l’une des deux parties, ni d’y vendre les prizes qu’il aura faites, etc.”
The true translation of these words is: It shall not be permitted to any foreign privateer not belonging to subjects of His Most Christian Majesty or to citizens of the United States, which shall have commissions from a prince or power at war with one of the two nations, to arm their vessels in the ports of the one or the other of the two parties, nor there to sell the prizes which they shall have made, etc.
The plain and evident meaning of this translation is, that neither of the contracting parties shall be at liberty to permit the privateers of a power at war with the other, to fit or arm in its ports, or sell their prizes there, etc.
But this stipulation not to permit the privateers of powers at war with either of the parties, to fit or arm in the ports of the other, can by no rule of construction be turned into an agreement to permit the privateers of one party, when engaged in war with a third power with whom the other party is at peace, to fit or arm in the ports of the party at peace. This would be to convert a prohibition against doing one thing into a contract to do another.
Nor is there a syllable in the whole sentence that even implies such a contract. The attempt seems to be to deduce it from the words “not belonging to subjects of His Most Christian Majesty or to citizens of the United States,” as if these words were introduced by way of exception to the generality of the terms “foreign privateers,” to imply that the privateers of the subjects or citizens of the parties might be permitted to fit or arm in the ports of each other.
But these words “not belonging,” etc., must be taken merely as words of additional description, more clearly to express what is intended by the terms “foreign privateers.” Nor are they useless to this end. The sense of the terms “foreign privateers,” is not sufficiently precise or clear without them, for the privateers of either party would be foreign with respect to the other, but the intention being to designate privateers foreign to both parties. To render this intention unequivocal, the words “not belonging to the subjects of His Most Christian Majesty, or to the citizens of the United States,” are added, which fixes the true meaning. It is equivalent to having said, it shall not be permitted to foreign privateers, that is to say, privateers “not belonging,” etc. Unless, too, these words are understood in this manner, they make nonsense of the whole clause. To perceive this, it is only necessary to remark, that the foreign privateers intended to be prohibited from the privilege of arming, etc., are expressly those which have commissions from a power at war with one of the parties.
Then, if the words “not belonging,” etc., are to be used as words of exception, the natural reading of the clause would be as follows. “It shall not be permitted to foreign privateers which have commissions from a prince or state at war with one of the two nations, to fit or arm in the ports of the other, unless those privateers so commissioned belong to the subjects or citizens of the one or the other of the contracting parties.”
This exception would then operate to produce one of these two effects, both equally absurd. Either to authorize one of the contracting parties to permit privateers belonging to their own citizens, under commission from a power at war with the other, to fit or arm in its ports; thus allowing its subjects or citizens with impunity, and even countenance, to partake in the war against the other of the contracting parties; or to authorize one of the parties to permit privateers belonging to the subjects or citizens of the other, under commission from a power at war with such other party, to fit or arm in the ports of the first-mentioned party; thus enabling one party to give aid and countenance to the subjects of the other, when carrying on war against their own nation or sovereign, and consequently in the situation of rebels or pirates.
No sense more rational can be given to the words in question, when understood as words of exception, having regard to the due and natural connection and import of the terms which immediately precede and succeed. It follows that they cannot be understood as words of exception, but merely as words of description, and that the inference attempted to be drawn from them is forced and unwarrantable. Indeed, neither as words of exception, nor as words of description, do they give the least color to that inference.
If the printed copies of the treaty are accurate, the punctuation is a further illustration that the words “not belonging,” etc., are merely words of additional description. In the French original, they are not divided even by a comma from the words “corsaire étranger”—“foreign privateer,”—which they immediately follow, forming with them the first member of the sentence and connected with the next member of it by the pronoun “lequel,” or “which”: il ne sera permis a aucun corsaire étranger non appartenant a quelque sujet de sa majesté tres chretienne ou a un citoyen des dits Etats Unis, lequel etc.
The words in question cannot, without making the clause nonsense, be understood as words of exception in another view. The words “foreign privateers,” are naturally to be understood as privateers foreign to both parties. If the words “not belonging,” etc., are not taken as words of additional description, but of exception—that is to say, if they are to be understood as equivalent to saying “except privateers belonging to the subjects of and commissioned by one of the parties,” it leads to a contradiction of terms; it would be equivalent to saying, “it shall not be permitted to foreign privateers, not foreign,” etc., for privateers belonging to the subjects of and commissioned by one of the parties, would not be foreign to both the parties.
But if it were possible, consistently with the context, to give the words “non appartenant,” or “not belonging,” the effect of an exception favoring the construction which is contended for, it could not at any rate go further than to authorize vessels previously fitted out and commissioned in the ports of France, and coming into our ports in the capacity of privateers, there to fit or arm; it could not possibly extend to the original fitting out, arming, and commissioning of privateers by one party in the ports of another; the expressions of every part of the clause presuppose that the vessels intended are already privateers, having commissions, etc., when they come into the ports of the respective parties.
And it is well known that the detention complained of applies entirely to vessels which have been made privateers in our own port.
If any confirmation were requisite, in so plain a case, of the construction which appears to have been adopted by the Executive of the general government, it might be found in the regulations of France herself at the time our treaty with her was made. Those regulations show that it was the policy of France to restrict to her own ports the fitting out of privateers, with a variety of precautions to secure their good behavior, their accountability, and the rights and interests of all concerned; from which it is to be inferred that the clause in question was not intended to establish a right on either side to fit out privateers in the ports of the other, such a right being incompatible with the then existing policy of France.
Indeed, such a right would be incompatible with the preservation of peace by either party, when the other was engaged at war, for as it would make one auxiliary to the other in this vexatious and irritating mode of hostility to an indefinite extent, it would be stronger than the case of a definite succor stipulated on a defensive alliance, and could not fail to involve the party permitting it in the war.
It is not presumable that a mere incidental regulation in a treaty of commerce could have been intended to include a consequence so important; and it could only have been admitted upon the strength of terms explicit and unequivocal.
All advantages relating to war, which are stipulated in favor of one nation, so as to be incommunicable to another, include more or less of hazard. They are apt to produce irritations, which produce war. In every case of doubt, therefore, upon the construction of treaties, the rule is against the concession of such advantages. The principles of interpretation favor no thing that tends to put the peace of a nation in jeopardy. It is incumbent on a power at war, claiming of a neutral nation, on the ground of treaty, particular privileges of a military nature, to rest his pretensions upon clear and definite, not upon doubtful or obscure, expressions. When founded upon expressions of the latter kind, this claim is always to be rejected.
Hence, consequently, the pretension to fit or arm in our ports privateers antecedently commissioned in the ports of France, beyond the mere point of reparation, is inadmissible. It is not necessary to admit it for the sake of finding a useful object for the clause in question. That clause will have a very natural and a very useful application, when it is understood as merely a prohibition to prevent a power at war with the other to fit or arm privateers in the ports of the party at peace. For without it each party would have been at liberty to grant by treaty such a right to other powers, which is now prevented.
An argument against every construction of this kind, may be drawn from the seventeenth article of the treaty of commerce. This article grants affirmatively to the armed vessels of each party, certain privileges in the ports of the other. ’t is there we should naturally look for a privilege so important as the one claimed; not in an article, the general object of which plainly is to exclude other powers from privileges in the ports of the contracting parties. The omission of the privilege claimed in the clause where it would naturally be included, is a reason against admitting it upon a forced construction of a clause where it would not naturally be expected.
Upon the whole, there is no plausible ground for the pretension set up. The natural construction of the clause of the treaty which has been quoted, obviously excludes it, and the United States cannot, ex gratiâ, accede to it without departing from neutrality, and encountering the mischiefs of a war with which they have nothing to do.
The result is, that a pretension to fit out privateers in our ports against our will, is an insult to our understandings, and a glaring infraction of our rights.
The residue of the Jacobin’s charges will be hereafter examined.
The next charge of breach of treaty exhibited by the Jacobin against the Executive of the United States is, to use his own language, “the seizure of prizes made known to the agents of the French republic at the moment those prizes were held up for sale.” The orders given to the military to take possession of a French vessel, without previous complaint, explanation, or communication with the agents of the French republic, said to be contraventions of the 17th Article of the Treaty of Commerce, by which it is provided “that it shall be lawful for the ships of war and privateers of either party, freely to carry whithersoever they please, the ships and goods taken from their enemies, without being obliged to pay any duty to the officers of the admiralty or any other judges, and without those prizes entering into the ports of the one party or the other, being liable to be arrested or seized, nor can the officers of the places take cognizance of the validity of the said prizes, which may go out and be conducted freely and in all liberty to the places expressed in their commissions, which the commanders of the said vessels shall be obliged to show,” etc.
It is presumed, that the facts complained of are more particularly applicable to the case of the ship William, arrested in this port; though it is understood that the same proceedings, with some small difference of circumstances, took place in the case of another vessel in New York.
To judge of the propriety of the complaint in each case, it is necessary to attend to the following particulars. According to the general laws and usage of nations, the jurisdiction of every country extends a certain distance into the sea along the whole extent of its coast. What this distance is remains a matter of some uncertainty, though it is an agreed principle that it at least extends to the utmost range of cannon shot, that is, not less than four miles. But most nations claim and exercise jurisdiction to a greater extent. Three leagues, or nine miles, seem to accord with the most approved rule, and would appear from Martin, a French author, to be that adopted by France, though Valin, another French author, states it at only two leagues, or six miles.
Within this distance of the coast of a neutral country, all captures made by a power at war upon its enemy are illegal and null, on the principle of its being a violation of the jurisdiction and protection of the neutral country. This principle, founded on the most evident reason, is asserted by all writers, and practised upon by all nations.
Every nation has a right to prevent a violation of its jurisdiction, and consequently to prevent the making of captures within that jurisdiction. A right to redress if such captures be made is a necessary consequence. A neutral nation is bound to prevent injuries within its jurisdiction to a power with which it is at peace, by any other power. In other words, it owes fair guard and protection to the citizens and subjects of every power with which it is at peace. It is therefore bound to exert itself to prevent captures within the limits of its protection of the subjects or property of one power by another power, and if such capture happens to avail itself of its own right of redress, against the power making it, for the purpose of effecting a restitution of the person or thing captured.
This is too plain to be denied; but it is pretended that the redress of the injury is to be sought through the channel of negotiation only, and not by the immediate exertion of the authority of the neutral nation, to cause restitution to be made in the first instance, either by means of courts of justice, or by the use of the public force.
It may boldly be affirmed that this position is founded neither on principle nor the opinion of writers, nor on the practice of nations; not on principle, because it is unreasonable to suppose that a nation ought to postpone the opportunity of redressing itself and of doing justice to another, upon the uncertain issue of a negotiation of which it cannot foresee the success. When the object is out of its reach, the way of negotiation ought to be pursued; for the alternative then is to negotiate or go to war, and a due moderation requires that a preference should be given to the milder course; but if the object to which the injury relates is within its power, the most prudent as well as the most dignified and efficacious course is to embrace the opportunity of rectifying what has been done amiss, for this seems to terminate the affair, and avoid the controversies and heats too often incident to negotiation.
The position in question is not founded on the opinion of writers, for these establish a contrary doctrine—as may be seen in Bynkershoek’s Quœstiones Publici Furis, Book I., Chap. 8; Vatel, Book II., Sec. 84, 101, 102, and 289; 2 R. Inst., 587-589; Leoline Jenkins’s Life and Papers, vol. 1, xcv.; vol. 2, pages 727, 733, 751, 752, 754, 755, 780; Woodeson’s Lectures, page 443; Douglass’ Rep., 595; Lee on Captures, Cap. 9,—nor on the practice of nations, for this is in favor of summary prevention and redress, as may be seen by one example which those writers quote, and is within experience of individuals among ourselves. A neutral fortress never scruples to fire upon the vessels of any power which attempts to commit a hostility against another power within reach of its cannon, nor a neutral sovereign or magistrate to prevent or restore captures made within his jurisdiction.1
The foregoing observations will lead to a right judgment of the merits of the complaint which is made.
Each of the vessels in question is understood to have been taken within a distance short of the least of the two distances which has been mentioned as forming the rule observed by France, one of them seems less than three miles, the other within less than five miles.
It may, therefore, be affirmed that both these captures were made within the limits of the protection of the United States, and in violation of their jurisdiction. And it will follow, from the principles which have been maintained, that the United States have a right and are bound to cause restitution of those prizes.
To this conclusion is opposed that provision of the article which declares that the local officers cannot take cognizance of the validity of the prizes which are carried by one party into the harbors or ports of the other.
But there is no established rule of interpretation with regard either to laws or treaties than that general expressions shall never be so understood as to involve unreasonableness or absurdity. According to this rule the general expression “the local officers” (les officiers des lieux) “cannot take cognizance of the validity of the prizes,” must naturally be understood with reference to prizes made on the high seas without the jurisdiction of the party into whose harbors or ports they are brought, not with reference to prizes taken within the protection and jurisdiction of such party. The following qualification is from the nature of things implied in the general terms, to wit: provided the prizes have not been taken within the jurisdiction of the party in whose ports they shall be. An interpretation so extensive as to embrace prizes made within the jurisdiction of such party would lead to a consequence not less absurd than this. A vessel of the United States might be taken by a French privateer in the port of Philadelphia, and there would be no power to question the validity of the prize or enforce restitution. Such a consequence is too violent to be admissible, and a position which includes it refutes itself. It can never be imagined that any nation could mean to tie up her hands to such an extent.
If, then, prizes of vessels belonging to the United States or their citizens shall be excepted, it will follow that the clause cannot in this respect be taken in a literal sense; and if it is to be taken in a rational, not a literal, sense, it will admit the exceptions of all prizes taken within the jurisdiction or protection of the party within whose territories they are found, being at peace with the nation of whom or of whose citizens it is made, for a state owes protection not only to its own citizens but to the citizens of every other nation with which it is at peace, coming within its jurisdiction for commerce or any other lawful cause. Nor can it even be supposed, upon the strength of mere general expressions, that it has meant to exchange the right of affording protection and security by its own power and authority, for that of negotiating with another nation the reparation which may be due to a violation of its jurisdiction. So essential an alienation of jurisdiction could only be deduced from precise and specific as well as express terms.
Besides, such an inference is broader even than the letter of the clause. ’t is only to the “officiers des lieux,” the local officers, or officers of the harbors, ports, or places to which the prizes are brought, that the cognizance of their validity is forbidden; ’t is not to the general judiciary tribunals or general executive authority of the country that such cognizance is denied. The expressions, “officiers des lieux,” are not of a nature to comprehend them. They are, therefore, under no prohibition by the treaty, and consequently, as far as consists with the jus gentium, or law of nations, are at liberty to interpose.
And the rule of the law of nations is this, that a neutral nation shall not interpose to examine the validity of prizes made by a power at war, from its enemies, at any place except one which is within the jurisdiction of such neutral nation. It is of the essence of jurisdiction to redress all wrongs which happen within its sphere. Powers at war have no right in derogation from the peculiar jurisdiction of a neutral nation. That jurisdiction, therefore, is in the same force against them as against powers at peace. What would be a marine trespass in the one case, is so in the other. A capture within the protection or jurisdiction of a neutral state is not a lawful act of war, but a mere trespass, of course within the competency of the neutral state to redress it.1
It may be asked why, if this was the rule of the law of nations, there should have been a particular article of treaty concerning it? The answer is, 1st. That it is a common practice to introduce into treaties stipulations recognizing the rules of the law of nations, in order to avoid controversy about them, of which there are several examples in our treaties. 2d. That the article secures to France something more than the usage of several nations admits, namely, a right to continue in our ports an indefinite time, and the benefit of an exclusion of the privateers of her enemies, having made prizes of the subjects, people, or property of France, from the degree of asylum to which they would otherwise be entitled. These are sufficient objects for the article without giving to it an extension subversive of the just and necessary jurisdiction of the country.
It is clearly demonstrated by what has been said that the government of the United States has an undoubted right to interpose authority, not by mere negotiation, to effect the restoration of the ships in question to their original owners, and that the doing so, either by a direct exertion of the public force, or by means of judicial process, is consistent both with the laws of nations, and with the true meaning of our treaty with France. It therefore gives no handle to the complaint of breach of treaty. To what department of the government it most regularly belongs to effect the requisite redress—whether to the Executive or to the Judiciary, or to both indiscriminately, is not yet settled in this country, nor is it material to any foreign nation. It is a mere question between the departments of our own government. So long as nothing is done which is contrary to the laws of nations or to treaty, a foreign power can have no ground of complaint.
As to the point of previous application to the agents of the foreign nation concerned, this belongs to a mere question of civility, not of right; there being in every such case a direct responsibility on the part of the neutral nation to the power whose citizens or property may have been captured. The power making the capture cannot justly be dissatisfied if the surest method of performing its duty is adopted by the neutral nation. This is to take the prize in the first instance into custody, till a fair and full examination can be had into the fact with regard to the place of capture, as was done in the instances in question.
This course, too, would naturally obtain till some arrangement should have been concerted between the government and the agents of the powers at war, and is the only one which can be observed in places where there are no such agents. And it would seem, from what took place in the case of the William, immediately after her seizure, that such an arrangement had been subsequently agreed upon; which is a proof that the course pursued was not the effect of unkindly disposition. But if there had been a disposition to proceed with strictness and rigor, it will be shown in the sequel that it was fully warranted by the very disrespectful treatment we have experienced from the agents of France, who have acted towards us from the beginning more like a dependent colony than an independent nation,—a state of degradation, to which I trust that the freedom of the American mind will never deign to submit.
Another accusation against the Executive of the United States preferred by the Jacobin, is derived from this circumstance: that while by the treaty between the United States and France the goods of her enemies on board our ships are exempt from capture, the goods of France on board our ships are subject to the depredations of her enemies, without any steps being taken by the Executive to cause French property to be returned, and to prevent similar hardships being in future imposed.
This has, if possible, still less color than any of the others.
By the general law of nations as laid down by writers, and practised upon by nations, previous to the late war between the United States and Great Britain, this rule was clearly and fully established.
That the goods of an enemy in the ships of a friend (that is, of a neutral power) are lawful prizes, and that the goods of a friend in the ships of an enemy (those called contraband excepted) are not lawful prizes. This rule is founded upon the principle that one enemy may lawfully take the goods of another wheresoever he finds them, except within the jurisdiction or dominion of a neutral state. Of course he may take them upon the high seas, where no nation can have jurisdiction or dominion. Vatel, Book III., S. 115, 116; Bynkershoek, Quœs. Fur. Pub., Lib. I., Cap. 13, 14.
It necessarily follows that French property taken by the enemies of France in American vessels is by the law of nations lawful prize, and that American property (not of the contraband kind) taken by Frenchmen in the ships of their enemies is not according to the same law lawful prize. To the forming a right judgment, then, on this part of the Jacobin’s charges, and to determine whether France is not benefited rather than injured by the alterations which have taken place, the following observations may perhaps be useful.
During the war between the United States and Great Britain, certain powers who associated under the denomination of the armed neutrality, asserted a rule the reverse of that which had before prevailed and which has been stated. But this association, made with a view to the then existing war, terminated with it. The United States never acceded to that association. They contented themselves with introducing its principle into their treaties with such powers with whom they formed treaties. Accordingly, it is to be found in our treaties with France, Holland, Sweden, and Prussia.
Great Britain, on her part, has never acceded to the new principle as a general rule; and there are other powers of Europe who did not originally unite in the attempt to introduce it, and who are not known to have since done any act amounting to an adoption of it.
An established rule of the law of nations can only be altered by agreements between all the civilized powers, or a new usage generally adopted and sanctioned by time.
Neither having happened in the present case, the old principle must be considered as still forming the basis of the general law of nations, liable only to the exceptions resulting from particular treaties.
With France, Holland, Sweden, and Prussia, four of the belligerent parties, we have treaties containing the new principle; but with Russia, England, Spain, Portugal, Austria, Savoy, we have no such treaties. Against the former powers, therefore, we have a right to claim the new principle, as they would against us, were we in a state of war and they at peace. Between us and the latter powers the old rule must govern until a departure from it can be regulated by mutual consent.
As we cannot of right assert the new principle against those powers with whom we have not established it by treaty, so neither can we even in prudence or good policy insist upon it, unless we are prepared to support it by arms.
There is not a doubt that all the powers who are at liberty to pursue the old rule will do it. In a war of opinion and passion like the present, concessions to ill-founded or doubtful pretensions are not to be expected. Nor are the United States in a condition to attempt to enforce such claims.
But it seems that the not having hitherto manifested a disposition toward this species of knighterrantry, is an injury and offence to France. The Jacobin deems it a breach of our treaty with her, that we do not quarrel with other nations for an object which we can claim of them neither by the law of nations nor by treaty.
It appears that the Jacobin is ready enough to insist upon and even to enlarge constructively all the peculiar advantages which our treaty with France gives to her; but any circumstance of supposed inconvenience to her is, in his eyes, a sore grievance, while he seems insensible to those which operate against us. This very reasonable gentleman ought to remember that if the property of the enemies of France in our ships is protected by our treaty with her, the property of our citizens in the ships of these enemies loses by that treaty the immunity or security to which it would otherwise be entitled, and that this important sacrifice on our part was agreed to, that we might have the advantage of being the carriers during European wars.
His silence on this head can only be accounted for on the supposition that if he really belongs to this country, he is blinded to her interests by foreign influence. He ought to remember that the citizens of France have already enjoyed the sweets of this departure by treaty from the law of nations at the expense of our citizens. This happened in the case of the brig Little Sarah, on board of which was a quantity of flour belonging to citizens of Philadelphia. This flour was considered and treated as a lawful prize.
He ought also to remember that it is at best problematical whether the citizens of the United States have not more property afloat in the bottoms of the powers at war with France than the citizens of France have afloat in bottoms of the United States, and consequently whether the balance is not in favor of France.
What is there in our history that can authorize our being degraded with the supposition that we are ignorant both of our duties and our rights?
The result of what has been shown evidently is that the Jacobin’s charge has no better foundation than that the Executive of the United States has not quarrelled with the enemies of France, for doing what by the law of nations they have a right to do.
I have, I believe, sufficiently answered charges which the Jacobin has brought against the Executive of the United States.
In doing this, it has been shown that the claim of a right on the part of France to fit out privateers in the ports of the United States, as derived from treaty, is without foundation. As this is the basis on which it has been rested, and indeed it is the only one upon which it could rest if at all to be supported, it is not necessary, by way of answer to the Jacobin, to discuss how the claim of such a right would stand independent of treaty. But a few remarks on this point, for the information of those who may not be familiar with subjects of the kind, may not be without use.
It is a plain dictate of reason and an established principle of the law of nations that a neutral state in any matter relating to war (not specially promised by some treaty made prior to the commencement of the war and without reference to it) cannot lawfully succor, aid, countenance, or support either of the parties at war with each other; cannot make itself, or suffer itself to be made, with its own consent, permission, or connivance, an instrument of the hostility of one party against the other, and as a consequence of these general principles cannot allow one party to prepare within its territories the means of annoying the other, or to carry on from thence against the other, with means prepared there, military expeditions of any sort by land or water.
To allow such practices is manifestly to associate with one party against the other. The state which does it, ceases thereby to be a neutral state, becomes an enemy, and may be justly treated as such. In common life it is readily understood that whoever knowingly assists my enemy to injure me becomes himself, by doing so, my enemy also; and the reason being the same, the case cannot be different between nations.
Could it be necessary to enforce principles so clearly founded on common sense by authorities and precedents, it might be done by an appeal to writers and to the general practice of nations. The following are a few of these that might be adduced: Vatel, Book III., Sec. 104; Bynkershoek, Quœs. Fur. Pub., Lib. I. Cap. 4, particularly pages 69-70 of Latin edition; Idem, Cap. 8, particularly page 65 of the same edition; Leoline Jenkins, 2d vol., 728, 756; Valin, Lib. III., Tit. IX., Art. XIV., p. 272.
Some of these establish only the general principles, others of them go directly to the point of carrying on military expeditions from the territories of the neutral state, and even to that of fitting out privateers in the ports of such state; pronouncing the neutral state to be answerable for the consequences, and giving the party injured a right to reparation. This reparation may either be in damages, to be paid by the neutral state, or by reprisals, at the option of the party injured.
It appears from them, moreover, that on the ground of the laws of neutrality, some nations (if it be not a general usage) go so far as to exclude from remaining in their ports more than twenty-four hours (if not detained by tempest), armed vessels of one belligerent party coming within its ports with prizes made of another. It was an article of the marine ordinances of France under the former government (and it is not known to have been changed), that “no vessel taken by a captain having a foreign commission, can remain more than twenty-four hours in the ports or harbors of France, if not detained there by tempest, or if the prize has not been made of the enemies of France.”
And Valin, advocate and procurator for the king at the seat of the admiralty of Rochelle, has this comment upon that article: “Plenary asylum is due only to those with whom we are not at war. To enemies we owe no more than the safety of their lives; to others we owe hospitality and good treatment, with liberty to go away when they judge proper.
“Nevertheless, as neutrality with two powers at war permits not to succor one to the prejudice of the other, to conciliate this consideration with the right of asylum, nations have tacitly agreed, and usage has made it a common law, that asylum shall be granted to foreign armed vessels with their prizes; that is to say, if entered into a port through tempest, as long as the bad weather shall not permit them to put to sea, and for four-and-twenty hours only, if they shall have put in from any other cause.
“Thus, except the case of tempest, vessels being in a condition to make sail, there is an obligation to make them depart and return to sea after twenty-four hours, whatever danger there may be of recapture by their enemies; otherwise it would be to violate the laws of neutrality.”
(See the authorities before referred to.)
The same idea which is to be found in this author appears in the writings of Leoline Jenkins, also above referred to, who was judge of the High Court of Admiralty of England, in the reign of James II. This serves to show the extreme nicety of nations on the point of neutrality. But how much stronger the case of fitting out armed vessels in a neutral port to make prizes, than that of simply coming into and staying in it with prizes that have been made!
Another reflection occurs in relation to this point, which is this: that the government of the United States, in a matter at least of doubtful propriety, has given to France a doubtful privilege to which she was not entitled by treaty, that of selling the prizes made by her armed vessels in their ports; the treaty stipulated nothing more than a free access and egress. Let it be judged from this how far a disposition to deny France the privileges which she may claim by treaty has governed. It is true, and in that the United States must seek their justification with other powers, that writers are not agreed as to this rule with regard to prizes; some considering it as lawful to sell them in neutral ports, as may be seen, Vatel, Book III., Cap. 7, Sec. 232. But still it appears that the government, in a doubtful case, has followed the course which favors France. And it is questionable whether the examples of national regulations, and the opinion of a judge and a lawyer versed in the practice of courts of admiralty and more drawn to attend critically to the point of usage, ought not to have more weight than those of writers who were in a situation to have been guided more by general theory. It appears likewise that the Regent of Sweden, who, like us, has pursued the path of neutrality in the present war, has made the point of fitting out privateers a particular article of prohibition; an example in practice which has great weight in the question. The governments of Europe know by long experience the usages of war, and without consulting the authorities or precedents, are able to pronounce with facility on what is lawful, what unlawful.
The example, then, of Sweden, is a respectable confirmation of what is the usage of nations on the point in question.
It is easy too to discern that the United States would become one of the most mischievous enemies which the maritime powers opposed to France could have, if from their territories armed vessels could be fitted out to an indefinite extent, with the full use of the means to cruise against the trade of those powers; if the prizes made by such armed vessels could be brought into their ports and sold; and if their professed neutrality could give asylum and security to these vessels and the fruits of their depredations. The inference is, that such a state of things could not possibly be long tolerated by those powers, but would lead inevitably to involving the United States in the war.
A consequence, no doubt, well understood, and unquestionably intended by the agents of France, who, with delusive professions of not desiring to embark this country in the war, are industriously employing every expedient that can tend to produce the event.
August 16, 1793.
The observations hitherto made have been designed to vindicate the Executive of the United States from the aspersions cast upon it by the Jacobin. Let us now examine what has been the conduct of the agents of France.
Mr. Genet, charged with the commission of Minister Plenipotentiary from the French Republic to the United States, arrived first at Charleston, South Carolina. Instead of coming immediately on to the seat of government, as in propriety he ought to have done, he continued at that place and on the road so long as to excite no small degree of observation and surprise. Here, at once, the system of electrifying the people (to use a favorite phrase of the agents of France) began to be put in execution. Discerning men saw, from this first opening of the scene, what was to be the progress of the drama. They perceived that negotiation with the constitutional organs of the nation was not the only means to be relied upon for carrying the points with which the representative of France was charged—that popular intrigue was at least to second, if not to enforce, the efforts of negotiation.
During the stay of Mr. Genet at Charleston, without a possibility of sounding or knowing the disposition of our government on the point, he causes to be fitted out two privateers, under French colors, and commissions to cruise from our ports against the enemies of France. Citizens of the United States are engaged to serve on board these privateers, contrary to the natural duties of humanity between nations at peace, and contrary to the positive stipulations of our treaties with some of the powers at war with France. One of these privateers makes a prize of an English vessel, brings her into the port of Charleston, where a Consul of France proceeds to try, condemn, and sell her; unwarranted by usage, by treaty, by precedent, by permission. It is impossible for a conduct less friendly or less respectful than this to have been observed. To direct violations of our sovereignty, amounting to a serious aggression, was added a dangerous commitment of our peace, without even the ceremony of previously feeling the pulse of our government. The incidents that attended Mr. Genet’s arrival here, previous to his reception, though justly subject to criticism, shall be passed over in silence. Breaches of decorum lose their importance when mingled with injuries and outrages.
This offensive commencement of his career was not made an objection to his reception; though it would probably have been so in any other country in the world. It has not been alleged either, that there was any want of cordiality in that reception. We shall see what return was made for this manifestation of moderation and friendship. Knowing, as we do, the opposition of the government to the practice of fitting out privateers in our ports, it cannot be doubted that an early opportunity was taken to make known its disapprobation to the French Minister; nor is it possible that the Executive of the United States can have neglected to remonstrate against so improper an exercise of consular jurisdiction as that which has been mentioned; yet we have seen that the practice of fitting out privateers has been openly persisted in. Their number has so increased, and their depredations have been so multiplied, as to give just cause of alarm for the consequences to the peace of this country. It is also matter of notoriety that the consuls of France have gone on with the condemnation of prizes; that one of them has had the audacity, by a formal protest to the District Court of New York, not only to deny its jurisdiction, but to arrogate to himself a complete and exclusive jurisdiction over the case.
The aggravating circumstances which attended the fitting out the Little Democrat at this port, under the very nose of the government; the means which were used to obtain a suspension of her progress until the return of the President to the seat of government; the refusal which those overtures met with; the intemperate and menacing declarations which they produced on the part of the French Minister—have been the subject of general conversation.
How much more there is in the case; what further contempt of the government may have succeeded the return of the President, can only be matter of conjecture. We know, however, that the Little Democrat proceeded to sea, and we conclude, from the known consistency of our Chief Magistrate, that this could not have been with his consent.
Prosecutions have been instituted and carried on, against some of our citizens for entering into the service of France. It is known that Mr. Genet has publicly espoused and patronized the practice, even, as it is asserted without contradiction, to the feeing of counsel for carrying on the defence of the guilty; and we see, but a few days since, an advertisement from the consul of France at Philadelphia, inviting to enter into her service, not only her own citizens, but all friends to liberty, including of course the citizens of the United States.
We read of cases in which one nation has raised men for military service in the dominions of another, with the consent of the nation in whose territories they were raised; but the raising of men, not only without the consent but against the will of the government of the country in which they are raised, is a novelty reserved for the present day, to display the height of arrogance on one side and the depth of humiliation on the other. This is but a part of the picture.1
Genet, going from bad to worse, finally undertook to appeal to the people against the government. It was at this juncture that Hamilton again took up his pen and addressed the public in the “No Jacobin” papers. The government handled Genet with great dignity and ability, and when he made his last false step they demanded his recall. The course of the government and the arguments of Hamilton slowly but surely brought public opinion round to the administration, and when the demand for Genet’s recall came (August 23, 1793) the administration were masters of the situation. The “No Jacobin” papers appeared in the Daily Advertiser, and the first number was reprinted in Fenno’s Gazette of the United States, August 31, 1793. The succeeding numbers followed at short intervals.
An English vessel captured by one of Genet’s privateers within the capes of the Delaware.
Indeed our treaties with several powers oblige us to this conduct. In the 5th article of that with Holland, the 2d of that with Sweden, the 7th of that with Prussia, the United States in affirmance of the general doctrine of the laws of nations “bind themselves by all means in their power to endeavor to protect all vessels and other effects belonging to the subjects and inhabitants of those powers respectively, in their ports, roads, havens, internal seas, passes, rivers, and as far as their jurisdiction extends at sea, and to recover and cause to be restored to the true proprietors, all such vessels and effects which shall be taken under their [protection] jurisdiction,” which is a plain indication that our then negotiators and government never dreamt of the newly invented construction of that treaty.
The rights of war only take place in the countries of the powers at war, or on the high seas which are common to both. If acts of hostility are committed within a neutral territory, they do not partake of the rights of war, they cannot be judged of by the laws of war, nor have any of the rules of war the smallest relation to them. As trespasses they are liable to be redressed in the ordinary course of justice, as infringements of territorial rights they claim redress and punishment from the executive authority of the injured country.
Hamilton being ill with the yellow fever, these essays were not continued.—J. C. H.