Front Page Titles (by Subject) no . VI - The Works of Alexander Hamilton, (Federal Edition), vol. 5
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no . VI - 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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There is one more objection to the treaty for what it does not do, which requires to be noticed. This is an omission to provide against the impressment of our seamen.
It is certain that our trade has suffered embarrassments in this respect, and that there have been abuses which have operated very oppressively upon our seamen; and all will join in the wish that they could have been guarded against in future by the treaty.
But it is easier to desire this, than to see how it could have been done. A general stipulation against the impressment of our seamen would have been nugatory, if not derogatory. Our right to an exemption is perfect by the laws of nations, and a contrary right is not even pretended by Great Britain. The difficulty has been, and is, to fix a rule of evidence, by which to discriminate our seamen from theirs, and by the discrimination to give ours protection, without covering theirs in our service. It happens that the two nations speak the same language, and in every exterior circumstance closely resemble each other; that many of the natives of Great Britain and Ireland are among our citizens, and that others, without being properly our citizens, are employed in our vessels.
Every body knows that the safety of Great Britain depends upon her marine. This was never more emphatically the case, than in the war in which she is now engaged. Her very existence as an independent power, seems to rest on a maritime superiority.
In this situation, can we be surprised that there are difficulties in bringing her to consent to any arrangement which would enable us, by receiving her seamen into our employment, to detain them from her service? Unfortunately, there can be devised no method of protecting our seamen which does not involve that danger to her. Language and appearance, instead of being a guide, as between other nations, are, between us and Great Britain, sources of mistake and deception. The most familiar experience in the ordinary affairs of society proves, that the oaths of parties interested cannot be fully relied upon. Certificates of citizenship, by officers of one party, would be too open to the possibility of collusion and imposition, to expect that the other would admit them to be conclusive. If inconclusive, there must be a discretion to the other party which would destroy their efficacy.
In whatever light they may be viewed, there will be found an intrinsic difficulty in devising a rule of evidence safe for both parties, and consequently, in establishing one by treaty. No nation would readily admit a rule which would make it depend on the good faith of another, and the integrity of its agents, whether her seamen, in time of war, might be drawn from her service, and transferred to that of a neutral power. Such a rule between Great Britain and us would be peculiarly dangerous, on account of circumstances, and would facilitate a transfer of seamen from one party to another. Great Britain has accordingly perseveringly declined any definite arrangement on the subject, notwithstanding earnest and reiterated efforts of our government.
When we consider candidly the peculiar difficulties which various circumstances of similitude between the people of the two countries oppose to a satisfactory arrangement, and that to the belligerent party it is a question of national safety, to the neutral party a question of commercial convenience and individual security, we shall be the less disposed to think the want of such a provision as our wishes would dictate a blemish in the treaty.
The truth seems to be, that, from the nature of the thing, it is matter of necessity to leave it to occasional and temporary expedients—to the effects of special interpositions from time to time, to procure the correction of abuses; and if the abuse becomes intolerable, to the ultima ratio; the good faith of the parties, and the motives which they have to respect the rights of each other and to avoid causes of offence, and vigilance in noting and remonstrating against the irregularities which are committed, are probably the only peaceable sureties of which the case is susceptible.
Our Minister Plenipotentiary, Mr. Pinckney, it is well known, has long had this matter in charge, and has strenuously exerted himself to have it placed upon some acceptable footing; but his endeavors have been unsuccessful, further than to mitigate the evil by some additional checks, and by drawing the attention of the British Government to the observance of more caution. A more sensible effect of our representations has been lately experienced; and with attention and vigilance that effect may be continued, and perhaps increased. But there is reason to fear that it would constantly be found impracticable to establish an efficacious conventional guard.
I proceed now to the examination of the several articles in the treaty, in the order in which they stand.
The first contains merely a general declaration that there shall be peace and friendship between the contracting parties, the countries and people of each, without exceptions of persons or places.
One would have imagined that this article, at least, would have escaped a formal objection, however it might have been secretly viewed as the most sinful of all, by those who pant after war and enmity between the two countries. Nothing but the fact could have led to a surmise that it was possible for it to have been deemed exceptionable; and nothing can better display the rage for objection which actuates the adversaries of the treaty, than their having invented one against so innocent a provision.
But the committee appointed by a meeting at Charleston (South Carolina) have sagaciously discovered, that this article permits “the unconditional return to our country of all persons who were proscribed during the late war.”
With all but men determined to be dissatisfied, it would be a sufficient answer to such an objection to say, that this article is a formula in almost every treaty on record, and that the consequence attributed to it was never before dreamt of, though other nations besides ourselves have had their proscriptions and their banishments.
But this is not all—our treaty of peace with Great Britain in 1783 has an equivalent stipulation in these words (article 6): “There shall be a firm and perpetual peace between his Britannic Majesty and the said States, and between the subjects of the one, and the citizens of the other.” In calling this an equivalent stipulation, I speak with reference to the objection which is made. The argument to support that objection would be to this effect: “Exiles and criminals are regarded as within the peace of a country; but the people of each are, by this article, placed within the peace of the other; therefore proscribed persons are restored to the peace of the United States, and so lose the character of exiles and criminals.” Hence the argument will turn upon the word “peace”—the word “friendship” will have no influence upon the question. In other respects there is no difference in substance between the two articles. For the terms “people,” “subjects,” “citizens,” as used in the two treaties, are synonymous. If, therefore, the last treaty stipulates that there shall be peace between the governments, countries, and people of the two nations, the first stipulates what is equivalent, that there shall be peace between the two governments, and the subjects and citizens of each. The additional words, “without exception of persons and places,” can make no difference, being merely surplusage. If A says to B: “I will give you all the money in this purse,” the gift is as complete as if he had said: “I give you all the money in this purse, without exception of a single dollar.”
But the object of the stipulation, and the subject of the objection, have no relation to each other. National stipulations are to be considered in the sense of the laws of nations. Peace, in the sense of those laws, defines a state which is opposite to war. Peace, in the sense of the municipal laws, defines a state which is opposite to that of criminality. They are, consequently, different things; and a subject of Great Britain, by committing a crime, may put himself out of the peace of our government, in the sense of our municipal laws, while there might be a perfect peace with him, in the sense of the laws of nations; and vice versa, there might be war with him, in the sense of the laws of nations, and peace in that of the municipal laws.
The punishment of a subject of Great Britain as a felon would certainly not constitute a state of war between the parties, nor interfere with the peace which is stipulated by this article; though it is declared that it shall be inviolable, and might as well be affirmed to prevent the punishment of future as of former criminals.
But who, in the contemplation of the laws of the respective states, are the proscribed persons? They must have been understood to have been subjects or citizens of the states which proscribed them—consequently cannot be presumed to be comprehended in an article which stipulates peace between the nations and their respective citizens.
This is not a stipulation of peace between a nation and its own citizens; nor can the idea of expatriation be admitted to go so far as to destroy the relation of citizen, as regards amenability for a crime. To this purpose, at least, the offender must remain a citizen.
There can hardly have been a time when a treaty was formed between two nations, when one or the other had not exiled criminals or fugitives from justice, which it would have been unwilling to reinstate. Yet this was never deemed an obstacle to the article, nor has an immunity from punishment ever been claimed under it, nor is there the least ground to assert that it might be claimed under it.
It follows that the objection which has been taken to this article is wholly without foundation. It is humiliating to the human understanding, or disreputable to the human heart, that similar objections should come from sensible men; it is disgustful to have to refute them. The regard I feel for some of those who have brought it forward makes it a painful task. How great is the triumph of passion over the judgment on this occasion!