Front Page Titles (by Subject) IV - The Works of Alexander Hamilton, (Federal Edition), vol. 5
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IV - 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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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.