Front Page Titles (by Subject) I. - The Works of Alexander Hamilton, (Federal Edition), vol. 5
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I. - 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.
An English vessel captured by one of Genet’s privateers within the capes of the Delaware.