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• Americanus (from the American Daily Advertiser .)
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• Hamilton to Washington (cabinet Paper.)
• Hamilton to Washington (cabinet Paper.)
• Points to Be Considered In the Instructions to Mr. Jay, Envoy Extraordinary to Great Britain
• Hamilton to Jay (cabinet Paper.)
• Treaty Project
• Hamilton to Washington (cabinet Paper.)
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• Remarks On Lord Grenville’s Project of a Commercial Treaty, Made At the Request of E. Randolph, Esq., Secretary of State
• Hamilton to Washington (cabinet Paper.)
• Remarks On the Treaty of Amity, Commerce, and Navigation, Made Between the United States and Great Britain
• Supplementary Remarks
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• No . I
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• No . Xviii
• No . Xix
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• No . Xxi
• No . Xxii
• No . Xxiii 1

no. VIII

1795.

One of the particulars in which our envoy is alleged to have fallen short of what might or ought to have been done, respects the time for the surrender of the Western posts. It is alleged, that there ought either to have been an immediate surrender, or some guaranty or surety for the performance of the new promise. Both parts of the alternative presuppose that Great Britain was to have no will upon the subject; that no circumstances of security or convenience to her were to be consulted; that our envoy was not to negotiate, but to command. How unsubstantial the foundation on which this course of proceeding is recommended, has been already developed.

The fact was, that our envoy pressed an early evacuation of the posts; but there was an inflexible adherence on the other side to the term limited in the treaty. The reasons understood to have been assigned for it were to this effect, viz.: That according to the course of the Indian trade, it was customary to spread through the nations goods to a large amount, the returns for which could not be drawn into Canada in a shorter period than was proposed to be fixed for the evacuation; that the impression which the surrender of all the posts to American garrisons might make on the minds of the Indians could not be foreseen; that there was the greatest reason for caution, as, on a former occasion, it had been intimated to them by public agents of the United States, that they had been forsaken and given up by the British Government; that the protection promised on our part, however sincere, and however competent in other respects, might not be sufficient in the first instance to prevent the embarrassment which might ensue; that for these reasons the traders ought to have time to conclude their adventures, which were predicated upon the existing state of things; that they would in future calculate upon the new state of things; but that, in the meantime, the care of government ought not to be withdrawn from them.

There is ground to believe, that there were representations on behalf of the Canada traders, alleging a longer term than that which was adopted in the treaty, to be necessary to wind up and adapt their arrangements to the new state of things; and that the term suggested by them was abridged several months. And it may not be useless to observe, as explanatory to the reasons given, that in fact it is the course of the trade to give long credits to the Indians, and that the returns for goods furnished in one year, only come in the next year.

What was to be done in this case? Was the negotiation to break off, or was the delay to be admitted? The last was preferred by our envoy; and the preference was rightly judged.

The consequence of breaking off the negotiation has been stated. No reasonable man will doubt that delay was preferable to war, if there be good ground of reliance that the stipulation will be fulfilled at the appointed time. Let us calmly examine this point.

The argument against it is drawn from the breach of the former promise. To be authorized to press this argument, we ought to be sure that all was right on our part. After what has been offered on this subject, are we still convinced that this was the case? Are we able to say that there was nothing in our conduct which furnished a ground for that of Great Britain? Has it not been shown to be a fact, that, from the arrival of the provisional articles in this country, till after the ratification thereof, by the definitive treaty, acts of States interdicting the recovery of British debts, and other acts militating against the treaty, continued in operation? Can we doubt, that subjects of Great Britain, affected by these acts, carried complaints to the ears of their government? Can we wonder, if they made serious impressions there, if they produced dissatisfaction and distrust? Is it very extraordinary, if they excited the idea of detaining the posts as a pledge till there were better indications on our part? Is it surprising, if the continuance of these acts, and the addition of others, which were new and positive breaches of the treaty, prolonged the detention of the posts?

In fine, was the delay in surrendering so entirely destitute of cause, so unequivocal a proof of a perfidious character, as to justify the conclusion, that no future dependence can be made on the promises of the British Government? Discerning men will not hastily subscribe to this conclusion.

Mutual charges of breach of faith are not uncommon between nations; yet this does not prevent their making new stipulations with each other, and relying upon their performance. The argument from the breach of one promise, if real, to the breach of every other, is not supported by experience; and if adopted as a general rule, would multiply, infinitely, the impediments to accord and agreement among nations.

The truth is, that though nations will too often evade their promises on colorable pretexts, yet few are so profligate as to do it without such pretexts. In clear cases, self-interest dictates a regard to the obligations of good faith; nor is there any thing in the history of Great Britain which warrants the opinion, that she is more unmindful than other nations of her character for good faith.

Yet she must be so, and in an extreme degree, if she be capable of breaking, without real cause, a second promise on the same point, after the termination, by a new treaty, of an old dispute concerning it, and this too on the basis of mutual reparation. It would indicate a destitution of principle, a contempt of character, much beyond the usual measure, and to an extent which it may be affirmed is entirely improbable.

It is a circumstance of some moment in the question, that the second promise is free from the vagueness of the first, as to the time of execution. It is not to be performed with all convenient speed, but by a day certain, which cannot be exceeded. This would give point to violation, and render it unequivocal.

Another argument against the probability of performance has been deduced from the supposed deficiency of good reasons for the delay, which is represented as evidence of want of sincerity in the promise.

Besides the reasons which were assigned for that delay, there are others that may be conjectured to have operated, which it would not have been equally convenient to avow, but which serve to explain the delay, different from the supposition of its having been calculated for ultimate evasion. If, as we have with too much cause suspected, Great Britain, or her representatives in Canada, whether with or without orders, had really countenanced the hostilities of the Western Indians, it was to be expected that she should think it incumbent upon her to give them sufficient time to make peace, before an evacuation of the posts should put them entirely in our power. She might, otherwise, have provoked them to hostilities against her own settlements, and have kindled in their minds inextinguishable resentments. It was not certain how soon a peace should be brought about; and it might be supposed, that the disposition to it on our part might be weakened or strengthened by the proximity or remoteness of the period of the surrender. Moreover, some considerable time might be requisite to prepare those establishments for the security of Canada which the relinquishment of the posts on our side would be deemed to render necessary.

The latter motive is one not justly objectionable; the former implies an embarrassment, resulting from a culpable policy, which was entitled to no indulgence from us, but which, nevertheless, must have had a pretty imperious influence on the conduct of the other party, and must have created an obstacle to a speedy surrender not easy to be surmounted. Taken together, we find in the reasons assigned, and in those which may be presumed to have operated, a solution of the pertinacity of Great Britain on the subject of time, without impeaching, on that account, the sincerity of the promise to surrender.

But we have very strong holds, for the performance of this promise, upon the interest of Great Britain: 1st. The interest which every nation has in not entirely forfeiting its reputation for honor and fidelity. 2d. The interest which results from the correlative stipulation with regard to the indemnification for the British debts, a point upon which there will be no inconsiderable mercantile sensibility. 3d. The interest of preserving peace with this country, the interruption of which, after all that has passed, could not fail to attend the non-surrender of the posts at the stipulated time.

It is morally certain that circumstances will every day add strength to this last motive. Time has already done much for us, and will do more. Every hour’s continuance of the war in Europe must necessarily add to the inconveniences of a rupture with this country, and to the motives which Great Britain must feel, to avoid an increase of the number of her enemies, to desire peace, and, if obtained, to preserve it.

The enemies of the treaty, upon their own calculations, can hardly dispute that if the war continues another year after the present, the probable situation of Great Britain will be a complete security for her compliance with her promise to surrender the posts. But let us suppose that a general peace takes place in Europe this winter, what may then be the disposition of Great Britain in June next, as to war or peace with this country?

I answer that the situation will be, of all others, that which is most likely to indispose her to a war with us. There is no juncture at which war is more unwelcome to a nation than immediately after the experience of another war, which has required great exertions, and has been expensive, bloody, and calamitous. The minds of all men then dread the renewal of so great an evil, and are disposed rather to make sacrifices to peace than to plunge afresh into hostilities. The situation of Great Britain, at the end of the war in which she is now engaged, is likely to be the most discouraging that can be imagined to the provocation of new wars. Here we may discover a powerful security for the performance of her stipulations.

As to the idea of a guaranty or surety for the fulfilment of the promise, it cannot be seriously believed that it was obtainable. It would have been an admission of the party that there was a well-founded distrust of its faith. To consent to it, therefore, would have been to subscribe to its own humiliation and disgrace, the expectation of which has been shown to be ridiculous.

But why was there not equally good reason that we should have given a guaranty or surety for the performance of our new promise, with regard to the debts? And if there was to have been reciprocity, where should we have conveniently found that guaranty or surety? Should we have thought it very reputable to ourselves to have been obliged to furnish it?

The arguments of the opposers of the treaty are extremely at variance with each other. On the one hand, they represent it as fraught with advantages to Great Britain, without equivalents to the United States—as a premeditated scheme to sacrifice our trade and navigation to hers—as a plan dictated by her for drawing the two countries into close connection and alliance, and for making our interests subservient to hers; on the other hand, they tell us that there is no security for the surrender of the posts according to stipulation. How is the one thing to be reconciled with the other? If the treaty is such an immense boon to Great Britain, if it be such a masterpiece of political craft on her side, can there be any danger that she will destroy her favorite work by not performing the conditions on which its efficacy and duration must depend? There is no position better settled than that the breach of any article of a treaty by one party, gives the other an option to consider the whole treaty as annulled. Would Great Britain give us this option, in a case in which she had so much to lose by doing it?

This glaring collision of arguments proves how superficially the adversaries of the treaty have considered the subject, and how little reliance can be placed on the views they give of it.

In estimating the plan which the treaty adopts for the settlement of the old controversy, it is an important reflection that, from the course of things, there will be nothing to be performed by us before the period for the restitution of the posts will have elapsed; and that, if this restitution should be evaded, we shall be free to put an end to the whole treaty, about which there could not be a moment’s hesitation. We should then be where we were before the treaty, with the advantage of having strengthened the justice of our cause, by removing every occasion of reproach which the infractions of the treaty of peace may have furnished against us.

Two other particulars, in which this part of the treaty is supposed to be defective, regard the want of indemnification for the detention of the posts, and for the expenses of Indian wars.

Those who make the objection may be safely challenged to produce precedents of similar indemnifications, unless imposed by conquering powers on the vanquished, or by powers of overbearing strength upon those which were too weak to dispute the logic of superior force. If this were the real situation of the United States and Great Britain, then is the treaty inexcusably faulty; but if the parties were to treat and agree as equal powers, then is the pretension extravagant and impracticable. The restitution of the specific thing detained is all that was to be expected, and, it may be added, it is all that was ever really expected on the part of this country, so far as we may reason either from official acts or informal expressions in the public opinion.

In cases where clear injuries are done, affecting objects of known or easily ascertained values, pecuniary compensation may be expected to be obtained by negotiation; but it is believed that it will be impossible to cite an example of compensation so obtained, in a case in which territory has been withheld on a dispute of title, or as a hostage for some other claim (as, in the present instance, for securing the performance of the 4th article of the treaty of peace). The recovery of the territory withheld is the usual satisfaction.

The want of a rule to adjust consequential damages is, in such cases, a very great difficulty. In the instance under discussion, this difficulty would be peculiarly great. The posts are, for the most part, in a wilderness. There are but two of them which have any adjacent settlements: Point-au-Fer, or Dutchman’s Point, to which a part of a tract of land, called Caldwell’s Manor, with a few inhabitants, has been claimed as appurtenant; and Detroit, which has a settlement in the town and neighborhood of between two and three thousand souls. In the vicinity of the other posts, on our side there is scarcely an inhabitant. It follows that very little damage could be predicated either upon the loss of revenue from, or of the profits of trade with, the settlements in the vicinity of the posts. The trade of the Indians within our limits would consequently be the basis of the claim of compensation. But here the ignorance or spirit of exaggeration of the opponents of the treaty has been particularly exemplified. The annual loss from this source has been stated by a very zealous writer against the treaty, who signs himself Cato, at 800,000 dollars.

Now it is a fact well ascertained, that the mean value of the whole exports from Canada in peltries (which constitute the returns of Indian trade) in the years 1786 and 1787, was something short of 800,000 dollars. It is also a fact, in which all men informed on the subject agree, that the trade with the Indians within our limits1 is not more than about one eighth of that which furnishes the peltry exported from Canada. Hence the total product of our Indian trade could not be computed at more than 100,000 dollars. What proportion of this may be profit is not easy to be determined; but it is certain that the profits of that trade, from the decrease of wild animals, and the inferiority of their kinds, are not considerable. Many assert that it is scarcely any longer worth following. Twenty per cent., therefore, would probably be a large allowance, which would bring the loss on our Indian trade, by the detention of the posts, to about 20,000, instead of 800,000, dollars per annum, as has been asserted.

But might not a claim, even of this sum, by way of indemnification, be encountered with some force, by the observation, that there is the highest probability that the capital and labor which would have been employed to produce 20,000 dollars profit on the trade with the Indians. have been quite as productively employed in other channels, and consequently, that there may have been no loss at all?

Thus we see how erroneous are the data which serve to magnify claims, in themselves insignificant, and which, from the great uncertainty of their quantum, are exposed to serious objections. Are claims like these, proper subjects on which to stake the peace of the United States?

The reasonableness of indemnification for the expenses of Indian wars, independent of the unusual nature of the claim, might have been matter of endless debate. We might have been told, that the Indians ascribe those wars to pretensions upon their lands, by virtue of treaties with the former Government of the United States, imposed by violence, or contracted with partial and inadequate representations of their nation; that our own public records witness, that the proceedings of our agents, at some of those treaties, were far from unexceptionable; that the wars complained of are to be attributed to errors in our former policy, or mismanagement of our public agents, not to the detention of the posts; that it must be problematical how much of the duration or expenses of those wars are chargeable upon that detention; and, that the posts having been detained by way of security for the performance of the article respecting debts, there was no responsibility for collateral and casual damages. Had we resorted to the charge of their having instigated or prompted those wars, they would have denied the charge, as they have repeatedly done before; and, though we might have been able to adduce circumstances of suspicion against them, they would have contested their validity and force; and, whether guilty or not, would have thought their honor concerned in avoiding the most distant concession of having participated in so improper a business.

In every view, therefore, the claim for indemnification was a hopeless one; and to have insisted upon it would have answered no other purpose than to render an amicable adjustment impossible. No British Minister would have dared to go to a British Parliament to ask provision for such an expenditure. What, then, was to be done? Were we now or hereafter to go to war to enforce the claim? Suppose this done, and fifty or a hundred millions of dollars expended in the contest, what certainty is there that we should at last accomplish the object?

Moreover, the principle of such a war would require that we should seek indemnification for the expenses of the war itself, in addition to our former claim. What prospect is there, that this also would be effected? Yet if not effected, it is evident that we should have made a most wretched bargain.

Why did we not insist on indemnification for the expenses of our Revolution war? Surely, not because it was less reasonable, but because it was evident that it could not have been obtained, and because peace was necessary to us as well as to our enemy.

This likewise would be the end of a war undertaken to enforce the claim of indemnification for the detention of the posts. We should at length be glad to make peace, either without the indemnification sought, or at best at an expense to carry on the war, without a chance of reimbursement, with which the thing gained would bear no comparison.

The idea which has been thrown out, of leaving the posts in the hands of the British, till we might be better able than at present to go to war for indemnification, is a notable political expedient. This would be to postpone, of choice, the possession of an object which has been shown to be demanded by very urgent and important general considerations; to submit to certain and great inconveniences from that privation, including probably the continuance or renewal of Indian hostilities; and to run the risk, from the growth of the British settlements in the neighborhood of the posts, and various unforeseen casualties, of their ultimate acquisition becoming difficult and precarious. For what? why, to take at last the chances of war, the issue of which is ever doubtful, to obtain an object which, if obtained, will certainly cost more than it is worth. The expenses of war apart, pecuniary indemnification upon any possible scale will ill compensate for the evils of the future detention, till the more convenient time for going to war should arrive. What should we think of this policy, if it should turn out that the posts and the indemnification too were to be finally abandoned?

Camillus.

[1]An account of peltries exported from Canada in 1786 and 1787: