Front Page Titles (by Subject) Remarks on the treaty of amity, commerce, and navigation, made between the United States and Great Britain - The Works of Alexander Hamilton, (Federal Edition), vol. 5
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Remarks on the treaty of amity, commerce, and navigation, made between the United States and Great Britain - 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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Remarks on the treaty of amity, commerce, and navigation, made between the United States and Great Britain
July 9, 1795.
Article I.—This being simply a declaration of peace and friendship, is liable to no observation.
Article II.—This article, by fixing a precise period for the evacuation of the posts, namely, the first of June, 1796, secures that important event as far as a stipulation can do it.
It is objected that the period is too remote, and that reasoning from the past there can be no reliance upon a fulfilment at the time.
It were desirable that a shorter period could have been limited, not only because it is interesting to repossess the posts as early as possible, but because the chances of interfering events which may create impediments are multiplied in proportion to the delay.
But the reasons assigned for it, as contained in one of Mr. Jay’s letters, though not satisfactory with regard to us, are not without force with regard to the other party, and it may be added to them, that the British would naturally wish time to establish counter posts within their territories, and that some time would really be requisite to prepare, without prejudice to their traders, for the future course of their business.
Yet whatever may be the degree of force which may be conceded to the reasons assigned for the delay, this circumstance does not appear to me a good ground of suspicion, that the postponement is with a secret intent to evade the surrender. I rather resolve its principal motive into the desire of preserving the friendship and confidence of the Indians within our territory by the gradual preparation of their minds for the event, and also by giving them sufficient time to close their quarrel with us, leaving things on a footing which it was imagined would incline us to better terms of peace than if we were previously in actual possession of the posts.
The extreme profligacy and contempt of appearances, which are implied in the supposition of an intention to evade the surrender of the posts, after a second and precise stipulation, in a treaty which adjusts all the points of difference in a former treaty, are so palpable, that the supposition cannot be indulged without such a distrust of the faith of the party as would forbid an attempt to treat with him. For after all, some future period must have been fixed—and that as well as a more remote one might have been evaded.
Besides that, it appears to be extremely probable that the course of events will fortify the disposition to observe good faith in this particular.
I therefore venture to count with confidence on the surrender of the posts, according to the stipulation. if the treaty is mutually ratified. And this is in my view a matter of signal importance. Besides opening to us the Indian trade, which is of some value, relieving us effectually from the expenses and mischiefs of Indian wars in that quarter, and giving a secure course to our Western settlements, it breaks up the great and dangerous project of Great Britain to confine us to the Ohio and to possess the intermediate country, and it tends most powerfully to establish the influence and authority of the general government over the Western country. The different ways in which it will have this effect will readily occur. The firm possession by the general government of the Western posts may be considered as a very strong link of connection between the Atlantic and Western country, to maintain which, with the necessary controls, is the knotty point of our affairs, as well as a primary object of our policy.
Moreover, it is to be remarked that the conditional ratification of the treaty, as advised by the Senate, will occasion delays which would render it scarcely possible to effect the surrender sooner than is stipulated, in consequence of the treaty; and at any rate the event could only be retarded, not accelerated, by not closing with the treaty as it stands.
The reservations of this article, with respect to the “precincts and jurisdictions“ of the posts, are criticised on account of the vagueness of the terms. But this criticism does not appear very well founded. It would have been difficult to have hit upon a definition which would have suited all the circumstances of the present occupation; and as any construction which is not entirely absurd will leave full latitude for the progress of settlement during the short period of the further detention of the posts, a definition was not a matter of moment. In my opinion the true construction will be, that those places where there are settlements and establishments in the vicinity of the posts over which a jurisdiction in fact has been exercised since the peace, are to be understood to be comprehended within the terms “precincts and jurisdictions of the posts,” and that where there have been no settlements, gunshot must be the rule.
Article III.—This article appears on the whole to be advantageous to the United States. Our Indian trade, to which it gives the British access, is unimportant. Theirs, to which we acquire access, is important, and it is believed by persons conversant in the business, that our local situation will enable us to maintain the competition within the British territories on favorable terms. As to other trade, the advantage will be still more clearly with us. The superior facilities of transportation on our side will enable us to supply their possessions with European and East India goods, as well as domestic articles, far more extensively than they can us.
It is objected to this article that the clauses which regard “the admission of British vessels from the sea into the rivers of the United States,” etc., and the mutual navigation of the Mississippi, will interfere with the regulations which the United States may hereafter think fit to establish, in order to bring Great Britain to better terms of commerce, etc.
But the ground of this objection appears to be erroneous. The main and affirmative object of the first clause of the article is to secure an intercourse between the territories situated on each side of the boundary line, by land passage and inland navigation, with a right to each, for the purpose of this inland navigation, “to navigate all the lakes, rivers, and waters thereof.” But lest on the one hand this should be construed to admit by implication a communication from the sea with Canada or Nova Scotia, or through those countries with the sea (a thing not now permitted), it is declared negatively that this shall not be understood to be implied; and lest on the other hand the same provision should be construed to admit by implication that British vessels coming from the sea might go beyond the highest ports of entry to which our laws now subject foreign vessels, it is in like manner declared negatively, that this shall not be understood to be implied. But this negative of an implication which might have arisen from the principal provision, can by no just rules of reasoning or construction be turned into a grant of a positive privilege, especially being foreign to the object of that principal provision—that is to say, to the grant of a right to navigate by sea to and from our seaports; the subject of the main provision being land passage and inland navigation.1
The absurdity of such a provision becomes the more manifest by considering that the trade to be regulated by the main provision concerns only that portion of the British territories which is on the continent of America; while the right pretended to be grafted upon it would extend to all the other British territories in whatever part of the world. With as much reason, and on the same principle, might we contend under the article for an access by sea to any possessions which Great Britain might have or acquire on the opposite coast of our continent.
The clause with regard to the Mississippi merely admits, as far as depends upon us, a positive right to navigate that river to any port or place which the British may have bordering upon it, and a revocable right to navigate it to any port or place which we may have bordering upon it. They may use it to come to any such port or place, in as ample a manner as they may go to an Atlantic port; but not in a more ample manner; consequently a prohibition to come to an Atlantic port will annihilate the conditional permission to go to a port on the Mississippi.
We may, therefore, freely, as to any thing in this article, prohibit British vessels from coming by sea from any part of the world to the United States.
The latter part of the clause gives permission to bring and carry into the respective territories mentioned in the article in manner aforesaid, that is to say, by land passage and inland navigation, all such goods and merchandise whose importation shall not be entirely prohibited, paying such duties only as the respective subjects and citizens are liable to pay. But we may entirely prohibit any articles we please of the produce or manufacture of Great Britain. And we may prohibit the exportation to Great Britain of any articles whatsoever. Thus will there be ample room to make regulations of the kind alluded to, notwithstanding any thing in this article.
Article IV.—This article, as far as it is operative, is right. A survey is a necessary previous step to determine whether the former treaty can be literally executed; and if not, the adjustment of the matter is referred to future negotiation, which leaves it in the power of both parties to come to such an agreement as they deem reasonable and conformable to the true intent of the former treaty.
Article V.—This article also provides a good mode of settling the controverted point.
Article VI.—It was ever my opinion that no adjustment of the controversy on the inexecution of the former treaty was ever likely to be made, which would not embrace an indemnification for losses sustained, in consequence of legal impediments to the recovery of debts; and indeed it always appeared to me just that an indemnification should be embraced.
The article of the former treaty on this head was, as I conceive, nothing more than the formal sanction of a doctrine which makes part of the modern law or usage of nations. The confiscation of private debts in time of war is reprobated by the most approved writers on the laws of nations, and by the negative practice of civilized nations, during the present century. The free recovery of them, therefore, on the return of peace, was a matter of course, and ought not to have been impeded, had there been no article.
Admitting that the first breaches of the treaty were committed, as we alleged, by Great Britain, still it would not follow that the impediments which the laws of certain States opposed to the recovery of debts were justifiable.
First, Because it manifestly lay with the general government, to which belonged the powers of treaty, war, and peace, to decide whether, in consequence of the breaches of treaty on the other part, it would elect to consider as void the whole, or any article of the treaty. The general government never did so decide, but, on the contrary, repeatedly and wisely manifested a different disposition; wisely, because it was inexpedient to set afloat so important a treaty, which terminated the question of the revolution with the government with which we had contended, and to widen a breach which might at an early stage involve us anew in war. Consequently the only competent authority having declined to pronounce, it was a usurpation in any State to take upon itself the business of retaliation.
Secondly,Because the interruption of the recovery of debts is contrary (as before observed) to the modern usage of nations, immoral in itself, against the opinions of the generality of enlightened men, and disreputable to the nation which has recourse to it. The practice of most of the States is in conformity with, and a comment upon, this doctrine.
But the question, Who committed the first breach of the treaty? if candidly examined, does not admit of as clear a solution in our favor as many imagine or assert.
Two breaches of treaty are imputed to Great Britain; one respecting the carrying away of the negroes, and the other respecting the retention of the posts.
As to the first, Great Britain has much to say with truth and justice.
Her proceedings in seducing away our negroes during the war were to the last degree infamous, and form an indelible stain on her annals.
But having done it, it would have been still more infamous to have surrendered them to their masters.
The reply to this may be, that they ought not then to have stipulated it. This is just; but still the inquiry is, whether they have stipulated it; and the odiousness of the thing, as applied to them, is an argument of weight against such a construction of general expressions in the treaty as would imply the obligation to restitution. Odious things are not favored in the interpretation of treaties; and though the restoration of property is a favored thing, yet the surrender of persons to slavery is an odious thing, speaking in the language of the laws of nations.
The words of the article are, that his Britannic Majesty shall, with all convenient speed, and without causing any destruction or carrying away any negroes or other property of the American inhabitants, withdraw all his armies, etc.
There are two constructions of this article: one that the evacuation should be made without depredation—that is, without causing any destruction or carrying away any property, which continued to be such (having undergone no change by the laws of war) at the time of the evacuation; the other, that there was to be, besides a forbearance to destroy or carry away, a positive restitution of all property taken in the war, and, at the time of the evacuation, which then existed in kind.
In favor of the last construction is the most obvious sense of the words; and as it applies to the negroes, merely as an article of property, the justice of restoring what had been taken away in many instances by unwarrantable means.
Against it, and in favor of the first construction, are these considerations.
Let it be observed that I do not mean to advocate this sense in preference to the other. I have at different times viewed the matter in different lights, and our ablest lawyers differ concerning it. I even entertain a clear opinion that the article was intended to operate in our sense of it. But, still, this does not obviate the doubt as to its true legal signification.
All I mean to say is, that there is really a well-founded doubt as to the true legal construction; and, in such case, the acting of the other party, on a construction different from ours, could not be deemed such a clear manifest breach of treaty as to justify retaliation. The point was merely a matter of amicable discussion and negotiation.
If this was a breach of the treaty, it is necessary to note that it was committed in 1783.
The affair of the posts is more embarrassing.
It is necessary, in the first place, to settle when it became the duty of the British to surrender them. The stipulation is, that it shall be done “with all convenient speed.” But from which of the treaties are we to date, the provisional or the definitive? The principle of this question is a point of great difficulty, not settled either by the opinions of writers or by the practice of nations.
I remember that I contended in Congress, shortly after the arrival of the provisional treaty, and when it was known that preliminaries had been signed between France and England, that the execution of the treaty was to date from this epoch, and on this position I grounded a motion to recommend to the States a compliance with the article.
But on the vote upon this motion, I was left alone, and Congress did not act upon the subject till after the arrival of the definitive treaty—that is, 1784.
This amounts to a construction by our government, that the execution was to date from the definitive treaty.
Lord Grenville contends with Mr. Jay for the same position, and urges, consequently, that it was not till after the notice of the ratification by us in England, or, in other words, the exchange of ratifications there, that it could be deemed incumbent upon them to give orders for the evacuation of the posts; which orders could not well have been given before May, nor have arrived in Canada till July.
After the course pursued by us, as already stated, it is difficult to see what can be objected to this construction. It is true the Atlantic posts were evacuated shortly after the provisional treaty; but it may be justly observed, upon this, that it was done for mutual convenience, and in the spirit of conciliation—not on the score of strict obligation; that, however inconsistent with the spirit of an act for restoring peace it might have been to have detained places in the heart of our settled country, being, besides, the capitals of the States in which they were, there was entire liberty to pursue a stricter rule as to the Western posts, some delay concerning which could not have been of material inconvenience to us; and that it was reasonable to pursue the strict rule here, to see what course the execution of the treaty was likely to take on our part.
But our dilemma is this: that if the delay of orders for evacuating the posts till after the exchange of ratifications of the definitive treaty was a breach of the treaty, as contended for by Mr. Jefferson, the delay of acting upon the fifth article till after the ratification of the definitive treaty in this country was equally a breach of the treaty on our part, and a prior, at least a contemporary, breach.
Let us now see how, in point of time, the breaches will stand on our part. In this I shall not aim at an accurate enumeration, but shall select particular instances.
An act of New York for granting a more effectual relief in cases of certain trespasses, passed the 17th of March, 1783.
This act takes away from any person within the British lines who had occupied, injured, or destroyed the property, real or personal, of an inhabitant without the lines, the plea of a military order for so doing; consequently, the justification which he might derive from the laws and usages of war, in contravention of the treaty of peace.
It is true, it preceded for a short time the arrival of the provisional treaty in this country; but it is notorious that it was in expectation and contemplation of the event.
This circumstance of priority of time leads Mr. Jefferson to put this act out of the question; but in fair reasoning this is hardly admissible.
It continued to have, in fact, an extensive operation, from the time of the evacuation of the city of New York till the repeal of the exceptionable clause, by an act of the 4th of April, 1787.
It hardly appears a satisfactory answer to this to say, as Mr. Jefferson has done, that the courts did not sanction the principle of the act; that in one instance, the case of Rutgers and Waddington, the mayor’s court overruled it.
The fact is, that from the very express terms of the act, a general opinion was entertained, embracing almost our whole bar, as well as the public, that it was useless to attempt a defence; and, accordingly, many suits were brought, and many judgments given, without the point being regularly raised, and many compromises were made, and large sums paid, under the despair of a successful defence. I was for a long time the only practiser who pursued a different course, and opposed the treaty to the act; and though I was never overruled in the Supreme Court, I never got my point established there. I effected many easy compromises to my clients, afraid myself of the event in the Supreme Court, and produced delays till the exceptionable part of the act was repealed. The Supreme Court frequently, in a studied manner, evaded the main question, and turned their decision upon the forms of pleading.
’t is perhaps enough for the other party to say that here was a positive law of a State, unrepealed, and acted upon so as in fact to defeat, in a material degree, the operation of the treaty. The injury was suffered, and there ought never to have existed so critical a conflict between the treaty and the statute law of a State.
If the operation of this law was a breach of the treaty, it was a breach from the first moment of the ratification of the provisional articles till the 4th of April, 1787. Nothing could be anterior to it.
Another act, of the 4th of May, 1784, provided a mode by which the foregoing act should have effect upon the estates of absentees, which in several instances produced judgments without opportunity of defence. It is to be observed that the British commander-in-chief early remonstrated against this act as inconsistent with the treaty, and yet it continued unrepealed.
Another act of New York, of the 12th of May, 1784, in the strongest and most express terms, confirms all confiscations before made, notwithstanding any errors in the proceedings, and takes away the writ of error upon any judgment before rendered.
This is substantially a new confiscation. If the judgments before rendered were from error invalid, the confiscations were nullities; to take away the writ of error, which was the mode of annulling them, was equivalent to making new confiscations. This act was an undoubted breach of the treaty, and is prior to the time when the breach by the non-surrender of the posts can be dated.
An act of South Carolina, March 26, 1784, suspends the recovery of British debts for nine months, and then allows them to be recovered in four yearly instalments.
This also was a plain contravention of the treaty, and dates before the breach by non-surrender of the posts.
Virginia, in June, 1784, resolved that her courts should be opened to British suits as soon as reparation should be made with regard to the negroes and posts, or otherwise, as Congress should judge it indispensably necessary.
If her courts were before closed, which this resolution admits, it was in consequence of acts passed prior to the treaty, which her courts had deemed obligatory upon them after the treaty—and it follows that there was a continual violation of the treaty from its ratification till 1787, when Virginia repealed all acts repugnant to the treaty.
Taking, therefore, the carrying away of the negroes to be a breach of treaty, ’t is a very moot point whether some of the laws of the States did not produce antecedent breaches.
Putting that out of the question and taking the definitive treaty, according to the construction just put upon it by our own conduct, as the act from which the execution was to date, and allowing reasonable time for the ratification to be notified and exchanged—it is certain that the first breaches were committed by us.
The use of these remarks is to show that a candid and unprejudiced view of the subject tends to moderate the sanguine pretensions which have been built on the suggestion of the first breach having been committed by Great Britain, and to manifest the reasonableness of having stipulated compensation in the cases of the breaches made by us.
Indeed, admitting the first breaches by Great Britain, I do not see that it would affect the conclusion that compensation was to be made.
The following seems to be the fair view of the subject.
Mutual infractions of the treaty had taken place. Either our infractions were to be considered as the equivalents for those of Great Britain, and then having enjoyed the equivalents we had no right to ask reparation in addition—or, if we preferred reparation for the infractions by Great Britain, we were to renounce the equivalents for them.
Then it will follow, that the surrender of the posts on their side would draw with it a right of compensation for the losses suffered by impediments to the recovery of the debts on our side.
In other words, the treaty was to remain mutually broken and unexecuted in certain points, or it was to be reinstated by mutual performance. Performance as to the article of the debts is compensation for the losses sustained by impediments to the recovery, and the removal of those impediments.
In fine, it would, in my judgment, independent of the treaty, have been dishonorable and unjust in us to have interfered with the recovery of private debts; it was dishonorable and unjust to have interfered with them on the grounds which were the pretexts, and it is honorable and just to make compensation. The reputation of the country as well as its peace required the stipulation.
It is not perceived that there is any thing exceptionable in the mode of determining and adjusting the compensations to be made in the cases in which this may be deemed proper—or that any better mode could be substituted. The article appears in general sufficiently well guarded.
—This article appears to me as well arranged as could have been expected.
It is objected to as too dilatory, but no reasonable substitute has occurred.
The United States could not have demanded a gross sum, because they had no adequate standard by which to ascertain what was proper. They might have asked too much or too little.
Great Britain, for the same reasons, could not have been expected to agree to the demand of a gross sum. This is not the way that nations deal with each other, unless where one is in a situation to dictate to the other. This was not our situation.
Indemnification on equitable principles was all that could be expected. This necessarily supposes a mode of ascertaining with due investigation the real losses.
But one of three modes can well be thought of: to refer the adjustment to the tribunals of the United States, to refer it to the tribunals of Great Britain, or to submit it to referees mutually appointed.
Either of the first two modes was inadmissible, because liable to partiality. The tribunals of the United States could never get hold of these cases without inverting entirely the course of similar transactions. Those of Great Britain will now in many cases decide in the first instance, but no American would choose to leave the ultimate decision there. Referees have therefore a comprehensive power to do justice in all cases in which it could not be obtained in the ordinary course.
But, it is said, ’t were better commissioners should have decided in the first instance without reference to the courts for the greater despatch.
This might have had a contrary tendency to that of promoting despatch. Appeals, in a great number of cases, will have gone forward; and it was better they should have had their course, than to be arrested to be turned over to the referees. ’t is probable, from the expedition of admiralty proceedings, that the courts will have done their part by the time the referees are ready to begin.
It is to be observed, too, that this article follows closely the provision with regard to the debts; and it was material this should be the case.
We certainly must prefer that our courts of justice should have a free course in the affair of the debts, in all the cases in which it is now practicable.
The latter clause of this article respects the prizes made within our territorial jurisdiction, or by privateers originally fitted out in our ports, is confined to the cases in which the prizes having been brought within our ports, we forbore to make restitution, and is purely in execution of the opinion of the President conveyed in the letter from Mr. Jefferson, which is annexed to the treaty, and which, by being annexed and referred to, becomes a part of this article.
Agreeing, then, with the laws of nations, with the obligations which our treaties with other nations impose upon us in respect to them, and carrying into effect the expectation previously given by the President, it is liable to no just objection.
VIII.—This article seems in all respects unexceptionable.
IX.—This article, from having been misunderstood, caused at first much uneasiness. It was considered as giving a permanent reciprocal right to the citizens of the two countries indefinitely to acquire and hold lands in either. But this is manifestly an error, which having been pointed out, the uneasiness has subsided.
It is expressly confined to those holding lands prior to the treaty, (the words are “those who nowhold lands,”)1 and makes no alteration in the antecedent state of things which can be at all material in a national light.
It is not certain that it makes any other alternation than that those who now lawfully hold lands may convey those lands to aliens.
It may, however, give rise to this question, whether aliens who now hold lands by a defeasible title acquired since the treaty of peace, in States whose laws do not authorize it, are not protected in their acquisitions? But however this question may be decided, it is of little importance; for in fact the alien laws are never enforced, nor likely to be so; and the quantity of lands so holden, which are daily changing owners, is not considered enough to have any consequence in a national scale.
An objection seems to have been raised in the Senate against the constitutionality of this article, as though it entrenched upon the authorities of the States.
But this objection is inadmissible. It would totally subvert the power of making treaties. There can hardly be made a treaty which does not make some alteration in the existing laws, which does not, as its object, control the legislative authority; and from the nature of our Constitution, this must apply to the State laws and Legislatures as well as to those of the Union.
A treaty cannot be made which alters the constitutions of the country, or which infringes any express exceptions to the power of the Constitution of the United States. But it is difficult to assign any other bounds to the power. It may certainly alter the provisions of the statute and municipal laws, and modify the rules of property.
There are stipulations in our treaty of peace with Great Britain, analogous to the one under consideration, the validity of which has never been disputed.
Of this kind is that which stipulates that all persons who have any interest in confiscated lands either by debts, marriage settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights; and that which stipulates that there shall be no future confiscations.
But a much stronger case is found in the XI article of our treaty of amity and commerce with France, which is generally understood and practised upon, as removing, in toto, the disability of alienism from all Frenchmen, so far as respects acquiring and holding lands; and certainly gives them important rights with regard to lands which they would not have but for this treaty on account of their alienism.
Indeed, the protection of aliens in the enjoyment of the landed property they hold is a familiar article in treaties of peace; so also stipulations as to rights in lands, more or less qualified, are common in treaties of commerce. And the power of making treaties is plenary under our present Constitution; more so than it was under the Confederation, where it has been deemed adequate to do much more in this respect than has been done by the treaty in question.
In fine, the objection to the constitutionality of this article, is manifestly futile.
X.—In my opinion this article is nothing more than an affirmance of the modern law and usage of civilized nations, and is valuable as a check upon a measure which, if it could ever take place, would disgrace the government of the country, and injure its true interests.
The general proposition of writers on the laws of nations is, that all enemy’s property, wherever found, is liable to seizure and confiscation; but reason pronounces that this is with the exception of all such property as exists in the faith of the laws of your own country; such are the several kinds of property which are protected by this article.
And though in remote periods the exception may not have been duly observed, yet the spirit of commerce, diffusing more just ideas, has been giving strength to it for a century past, and a negative usage among nations, according with the opinions of modern writers, authorizes the considering the exception as established.
If there have been deviations from that usage in the actual war of Europe, they form no just objection to this reasoning: for this war has violated, in different instances, most of the most sacred laws of nations.
It is said that the power which is given up by this article was the only effective check upon Great Britain. I answer:
What benefit did those States derive which had recourse to the expedient of sequestrations in our war? How much wiser and less embarrassing to themselves was the policy of those States who refrained from it. And why did they refrain from it, but because they thought it unwarrantable and impolitic?
I have not the State laws by me, and cannot speak with certainty from memory; but as far as I recollect, a majority of the States, including the most commercial, abstained from the sequestration or confiscation of private debts, except in the case of convicted or attainted criminals, which may be regarded as an indication of the general opinion. For if ever a war warranted such a measure, it was our Revolution war.
I conclude, from the whole, that no honest or truly politic objection lies against this article; and that a willingness to enter into the stipulation is reputable to the country, while an unwillingness would be disreputable to it.
These ten are all the permanent articles. They close the various matters of controversy with Great Britain, and, upon the whole, they close them reasonably. Compensation for the negroes, if not a point of doubtful right, is certainly a point of no great moment. It involves no principle of future operation. It involves no principle of future operation. It terminates in itself; and the actual pecuniary value of the object is in a national sense inconsiderable and insignificant.
The remaining articles are temporary. I proceed to review them in their order.
XI.—This article is a mere introduction to the succeeding articles.
XII.—This article is in my judgment an exceptionable one. The principle of a restriction upon any thing which is not the produce of the treaty itself, is unprecedented and wrong. Had it been confined to articles from the British Islands, it would have been justified; but extending to articles from other countries, and, according to the letter, to one which is the growth of our own country, it appeared to me from the beginning inadmissible. It might also have proved a source of dissatisfaction to France, by interrupting in the midst of the war a regular and just source of supply through us. And though I would not omit any measure which I thought for the national interest, because any foreign power might capriciously dislike it, yet I would do no act giving a reasonable cause of dissatisfaction. And for these reasons I am glad, though at the risk of the treaty, that the Senate has not accepted it.
I do justice to Mr. Jay’s reasoning on this subject. He thought rightly that the re-exportation of the articles in ordinary times was a matter of little consequence to this country, and that it was of importance by a formal treaty to establish the precedent of a breach in the navigation system of Great Britain, which might be successively widened. These reasons were not light ones, but they are in my judgment outweighed by the other considerations.
XIII.—This article is a valuable one. In considering it, it is necessary to reflect that the privileges we now enjoy in the British East Indies are by the mere sufferance of the local government, and revocable at pleasure. This article converts into a right by stipulation, not all that we before enjoyed by sufferance, but the most essential and extensive part of it—the direct trade between India and the United States. Heretofore by sufferance we have been occasionally let into the coasting trade, and have been permitted to go from India to other countries than the United States. The treaty, though it permits a circuitous trade to India, permits only a direct trade from India to the United States; but when the articles arrive within the United States, we may re-export them, or do whatever else we please.
But though the treaty does not secure to us an indirect trade from India, nor the coasting trade there, I do not see but that these matters will be left just where they were before—that is, depending on the sufferance or free permission of the British Government in India. When two parties agree that a certain thing shall not be done, it is always with this tacit exception, unless the party for whose benefit the restriction is imposed shall consent to waive it. If the British Government finds it expedient to continue to us the advantages not granted by treaty, its permission ad hoc will release the restriction in the treaty and confer the right. ’t is by the same permission we have hitherto enjoyed it, and by its continuance we may enjoy it still.
The interest of the other party was the only ground upon which we heretofore enjoyed any privilege in the British East Indies. That interest without the treaty would continue the privilege so long, and so long only, as the interest continued. It will still do the same as to what is not included in the treaty, and the result of the whole is this: that the treaty converts into matter of right the most extensive and most valuable part of a trade, which before was wholly matter of sufferance, leaving the residue now as it was before, matter of sufferance, to be continued or discontinued according to the interest of the party.
Some alarm has been attempted to be excited as if under this article the British merchants could enter into competition with us in the India trade, and by the superiority of their capitals supplant us. But there is not a syllable in this article which renders this at all more possible now than it was before.
There is a clause which says negatively that our vessels shall pay in India no other or higher duties than are payable on British vessels in the ports of the United States. But as it is at the option of the other party under this article not to make us pay as much tonnage in India as British vessels pay in the United States, so before the treaty it was in their power to make us pay not only as much but more; now by the treaty they are restrained from making us pay more, so that something is gained, nothing lost. There is a clause which immediately follows, very important in a contrary sense to the object. This clause secures us from paying higher duties in India on articles imported and exported in our vessels than are paid on the same articles in British vessels; whereas before they might have imposed at pleasure higher duties on our cargoes, and very reasonably could have gone so far as to countervail the higher duties which we lay on foreign vessels bringing goods from India.
In fine this article is all on one side, and favorable to us.
XIV.—This article is a general formula without any special or remarkable feature.
XV.—This article, with more precision than is usual, only establishes reciprocally the rule of the most favored nation. It stipulates that as to the points enumerated, Great Britain shall be on no worse footing than other nations, but it gives her no preferences. It was impossible to expect that a treaty could be formed of which this was not the basis.
The last clause but one assures to Great Britain the right of imposing on American vessels entering into her ports in Europe, and their cargoes, duties which shall countervail the differences made in our ports between British and American vessels and their cargoes. This right Great Britain enjoyed before the treaty, and it depended then upon her option, as it does still, to exercise or not to exercise it. And it is now in our option to defeat the reservation if we choose it by equalizing the duties.
The last clause stipulates on our side a continuance of the status quo as to the tonnage duty on British vessels, and as to the proportional difference of duties on articles imported in British and American vessels. This status quo is such as we have no interest to vary, unless on the plan of coercive regulations, an idea which is certainly incompatible with the being of the treaty while it continues in force.
XVI.—This article merely relates to consuls, and is on the common and a harmless footing.
XVII.—This article, recognizing the right of a belligerent nation to take its enemy’s goods out of a neutral vessel, establishes the usual grounds against abuse.
It is impossible to deny that the principle recognized is conformable with the laws of nations. It is the uniform doctrine of writers, and was the uniform and universally allowed practice of nations before the armed neutrality brought it into controversy. A combination like this, formed in the midst of a war of temporary duration, and on special motives of policy, not acceded to by all the powers of Europe, not having acquired the sanction of time, is clearly not sufficient to alter a rule in the law of nations. This might be done by common consent, or by long and general usage. Neither is the case here. On the contrary, some of the powers which combined to introduce the innovation, now support in arms a contrary principle; and all the neutral powers—the United States included—have expressly or virtually relinquished the ground in the whole course of the present war. None, that I know of, has seriously contended for it, even in argument.
Our government, at an early day, on full and mature examination and reflection, by an unanimous opinion of those consulted, gave up the ground as untenable. The President’s files of Mr. Jefferson’s letters are evidence of this. Indeed it is not very probable that the new principle will ever become an established one of the laws of nations. It is too contrary to the spirit of war.
Where, therefore, the rule exists, it must depend on treaty, and apply only to the powers who are parties to it.
This article, therefore, does no more than was done before, and rightly and wisely done.
For besides that one or a few nations cannot justly make and attempt to enforce a new principle, it is folly in a young and weak country like ours to take a ground which cannot clearly be maintained on precedent and principle.
The dilemma was to renounce the pretension, or to insist upon and maintain it. To have attempted the last would have been madness.
It were to have been wished that this article had stipulated, with regard to contraband goods, what has been stipulated with regard to enemy’s goods, to wit, that the contraband only should be detained—the rest of the cargo liberated; since it is contended, in certain cases, that the contraband articles will infect the ship and the residue of the cargo. But though such a stipulation would have been a point gained, the want of it relinquishes nothing. The point is left where it was before—to the decision of the laws of nations.
XVIII.—The first clause of this article specifies the articles to be deemed generally contraband. This specification agrees with the laws of nations, as laid down by writers, and sanctioned by long practice, in all cases in which there are not limitations or exceptions in particular treaties.
The enumeration, however, comprises articles as contraband which are excepted in our other treaties, and is so far less well than might be wished, though probably as well as circumstances would permit to be done at the present juncture.
In embracing generally articles for ship-building, it affects some of the staples of some of the States; but it is to be observed that it only leaves them, in this respect, where they are at present. It is, however, our interest to narrow upon all occasions as much as possible the list of contraband.
The second clause recites the difficulty of agreeing on the precise cases in which alone provisions and other articles not generally contraband may be regarded as such; to prevent inconvenience and misunderstandings, provides, that in the cases in which, by the existing laws of nations, they do become contraband, they shall not be confiscated; but, being taken, shall be paid for at their full value, with a reasonable mercantile profit, freight, and demurrage.
But one case in which such articles may be deemed contraband is, by the succeeding clause, subjected to a particular and different regulation. A vessel with her cargo, going to a port or place blockaded, besieged, or invested, if without notice, cannot be seized or detained, but must be turned back. If she contumaciously persists, and makes a second attempt, she may then be seized, and she and her cargo confiscated.
The last sentence guards our property found in places afterwards besieged, etc., from vexations and depredations to which they have been in some cases liable.
The second clause has been the subject of much censure, as though it sanctioned generally the seizing of provisions and other articles not generally contraband, on the condition of paying for them; for it is said that all the cases in which the acknowledged laws of nations authorize such seizure, are differently provided for in the third clause (those of blockades, sieges, and investments), and that consequently the provision in the second must be understood virtually to admit that there are other cases, and must be referred to the general position set up and acted upon by Great Britain in her order of June.
But this argument is erroneous in principle and in fact.
Various combinations of circumstances, which do not at first sight occur, may beget other cases in which the seizure may be justified.
The clause in question, then, speaks simply this language: that inasmuch as cases may exist, in which provisions and other articles not generally contraband become so; as it is difficult beforehand to define them, as even in the admitted cases of blockades, sieges, and investments, it may not always be easy to pronounce what is a blockade, siege, or investment; as the parties cannot at this time agree upon a definition of the doubtful cases, they agree at least (with one exception, which has been noticed) that in all cases of the seizure of such articles as contraband, full compensation shall be made, to the end that in doubtful cases, the inconvenience being thereby much lessened, the danger of rupture may be diminished by inclining the party which conceives itself injured to acquiesce in the pecuniary compensation.
But though I have no doubt that this is the true and genuine sense of the clause, and that it does by no means warrant the construction put upon it, yet as it may possibly become the pretext of abuses on the side of Great Britain, and of complaint on that of France, I should have liked the treaty better without it. On the whole, I think this article the worst in the treaty, except the 12th, though not defective enough to be an objection to its adoption.
Articles XIX. and XX.—These articles require no comment. They are usual and every way unexceptionable provisions.
Article XXI.—This article is liable to no just objection. The first part of it restrains generally the citizens of each party from participating in hostilities against the other. This is implied in the leading article of every treaty of peace, is conformable with every moral idea, and though more comprehensive in the extent of the inhibition, is agreeable to the principle of the law of Congress on this subject.
It is also agreeable to the true policy of the United States, which is, to keep its citizens as much as possible from being implicated in the quarrels and contests of other nations, in foreign feelings, interests, and prejudices. This is an idea of great importance to our security in various ways. The only case, if at all, in which it can be our interest that our citizens should engage in foreign service, is that of young men of education entering into foreign service to acquire military knowledge and experience.
But it is conceived that the doing of this in time of peace is not forbidden. The citizens of each party are not to accept commissions from, nor to be permitted to be enlisted by, the enemies of the other. This seems to suppose a state of war when the forbidden act is done. The punishment for infractions of this part of the article is referred to the laws of the party whose citizens commit them. No precise one is defined.
The latter part of the clause subjects to the penalties of piracy the citizens of one party accepting commissions from the enemy of the other for arming any vessel to act as a privateer.
A similar provision is to be found in all our commercial treaties heretofore made, and is familiar in the commercial treaties of other powers during the present century. It has wisely become the policy of nations to confine the mischievous practice of privateering to the belligerent parties. This is peculiarly our true policy; as from situation the contrary would never fail to compromise our peace.
It is to be observed that this crime of piracy does not extend to land service, nor to service on board of public ships of war, commonly called men-of-war.
Article XXII.—This is a reasonable and usual provision in affirmance of the laws of nations, and calculated to prevent war.
Article XXIII.—This article merely stipulates those rights of hospitality which the courtesy and humanity of nations owe to each other, and which it has been the endeavor of our government to observe. It does not extend to privateers, which are never denominated ships of war, and consequently does not interfere with our treaty with France as hitherto interpreted and acted upon.
Articles XXIV. and XXV.—These articles, which are compatible with the rules of neutrality and the rights of belligerent nations, are becoming formulas in most modern treaties. They are to be found essentially in our treaties with France, Sweden, and partly if not wholly in that with Prussia, and in the treaty of 1786 between France and Great Britain.
Hence, while on the one hand these articles make no unreasonable stipulations in favor of Great Britain, they can by no possibility interfere with prior stipulations to France or any other power. If, consequently, there is any repugnancy, the treaty with Great Britain must give way to those prior treaties. There is only one particular in the conduct hitherto observed towards France in which the treaty with Great Britain will produce an alteration—that is, the selling of prizes in our ports; because this indulgence has been granted not upon the ground of any obligation to do it to be found in our treaty with France, but upon that of there being no law of the United States against it. The XXIVth article of the present treaty will be a law against it, and will restrain it.
But nothing can be more proper; and I well remember, that when it was concluded to permit the selling of prizes, it was unanimously regretted that the Executive, for want of law, could not do otherwise: because the measure had an unneutral aspect, permitting to one party a military advantage which our treaty with that party did not leave us at liberty to extend to the other; and was of very questionable propriety. The permission was of a nature to give much dissatisfaction to the other powers. A revocation of it, therefore, by a treaty with one of those powers, is unexceptionably equitable. The clause which restrains the making of future treaties in the given case, has been grossly misunderstood. It is expressly confined to the two articles, and, for aught I see, is nugatory. For a treaty implies of itself, that while the contracting parties remain in amity, they shall make no subsequent treaty inconsistent with the prior one between those parties.
Articles XXVI. and XXVII.—These articles need no particular comment. They are liberal and equitable, and interfere with no interest or duty. The part which regards ambassadors and ministers, is calculated to avoid very delicate embarrassments, and to exclude intrigues and bad conduct in foreign ministers. It would be a valuable article in all our treaties.
Article XXVIII.—The effect of this article is to enable either party in two years after the termination of the existing European war, to put an end to all the articles of the treaty except the first ten.
This, upon the whole, is a desirable ingredient. It makes the commercial part of the treaty a mere experiment of short duration, and enables each party, if any part of it should be found to work amiss, or if it thinks that upon the whole the treaty is not sufficiently advantageous, to put an end to it unless the parts not satisfactory can be amended, or the additional provisions which are desired can be agreed upon.
Article XXIX.—This, which is the last article, provides merely for the ratification, and looks to future negotations for more benefical arrangements.
To these particular views of the different articles of the treaty, the following general views may be added.
The truly important side of this treaty is, that it closes, and upon the whole as reasonably as could have been expected, the controverted points between the two countries; and thereby gives us the prospect of repossessing our Western posts, an object of primary consequence in our affairs, of escaping finally from being implicated in the dreadful war which is ruining Europe, and of preserving ourselves in a state of peace for a considerable time to come.
Well considered, the greatest interest of this country in its external relations, is that of peace. The more or less of commercial advantages which we may acquire by particular treaties, are of far less moment. With peace, the force of circumstances will enable us to make our way sufficiently fast in trade. War, at this time, would give a serious would to our growth and prosperity. Can we escape it for ten or twelve years more, we may then meet it without much inquietude, and may advance and support with energy and effect any just pretensions to greater commercial advantages than we may enjoy.
It follows that the objects contained in the permanent articles are of real and great value to us. The price they will cost us in the article of compensation for the debts, is not likely to bear any proportion to the expenses of a single campaign to enforce our rights. The calculation is therefore a simple and a plain one. The terms are no way inconsistent with national honor. As to the commercial arrangements in the temporary articles, they can be of no great importance either way; if it were only for the circumstance that it is in the power of either party to terminate them within two years after the war. So short a duration renders them unimportant, however considered as to intrinsic merit.
Intrinsically considered, they have no very positive character of advantage or disadvantage. They will in all probability leave the trade between the two countries where it at present is.
These terms have no precise legal sense; but they are always used as contra-distinguished from sea navigation, or navigation to and from the sea. I should say, then, that inland navigation begins where navigation from the sea ends;—that navigation from the sea ends at our ports of entry from the sea, where inland navigation begins. This construction is strengthened by the reflection, that, according to the laws of Great Britain and the United States, rivers, as far as the tide flows, are arms of the sea.
Mr. King, who has critically examined these points, is of opinion that it does not apply to such cases.