Front Page Titles (by Subject) III - The Works of Alexander Hamilton, (Federal Edition), vol. 5
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
III - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
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.