Front Page Titles (by Subject) no . IX - The Works of Alexander Hamilton, (Federal Edition), vol. 5
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no . IX - 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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It was my intention to have comprised in two numbers the examination of the second article; but, on experiment, it was found expedient to add a third. I resume, for a moment, the subject of indemnification for the detention of the posts.
As an inducement to persist in this claim, we are assured that the magnanimity of France would have procured for us its establishment. In the first place, this supposes that we were to have become a party in the war; for, otherwise, it would be silly to imagine that France would, on our account, embarrass herself with a difficulty of this sort. In this case, and supposing the object accomplished, still the injuries, losses, and expenses of war would have greatly overbalanced the advantage gained. But what certainty have we that France will be able to dictate terms even for herself? Could we expect or rely, after the terrible and wasting war in which she has been engaged, that she would be willing to encumber the making of peace with additional obstacles, to secure so trifling a point with us? Would it be even humane or friendly in us to ask her to risk the prolonging of her calamities for so trivial an object? A conduct like this, with reference either to France or to ourselves, would resemble that of the gamester who should play millions against farthings. It is so preposterous in every sense, that the recommendation of it, if sincere, admits of but one construction—namely, that those who recommend it wish our envoy to have acted not as if he had been sent to make peace, but as if he had been sent to make war, to blow and spread the desolating flames of discord and contention.
There is a marked disingenuousness running through the observations which are made to the prejudice of the treaty; they endeavor constantly to have it understood that our envoy abandoned, without effort, the claims which have not been established. Whence is this inferred? Is it from the silence of the treaty? Surely we can only expect to find there what was agreed upon, not what was discussed and rejected. The truth is, that as well on this point of indemnification for the detention of the posts, as on that of compensation for the negroes carried away, our envoy urged our pretensions as far and as long as he could do it, without making them final obstacles to the progress of the negotiation.
I shall now enumerate and answer the remaining objections which have appeared against this article. They are these: 1. That the posts to be surrendered, instead of being described in general terms, should, for greater certainty, have been specially enumerated; that now the uncertainty of a part of the boundary line may furnish a pretext for detaining some of them. 2. That the expressions “precincts and jurisdictions,” which are excepted from our right of settlement, previous to the surrender, are so vague and indeterminate, as to be capable of being made to countenance encroachments. 3. That it was improper to have stipulated, for the inhabitants, the option of residing and continuing British subjects, or of becoming American citizens: that the first was to establish, by treaty, a British colony within our limits; the last, to admit, without the power of exception, bitter enemies of the country to the privileges of citizens. 4. That the securing to those inhabitants the enjoyment of their property is exceptionable, as being a “cession without equivalent of an indefinite extent of territory.“ This is the character given to it by the meeting at Philadelphia.
The answer to the first objection is, that the enumeration proposed might have included the very danger which is objected to the provision as it stands, and which is completely avoided by it. The principal posts occupied by the British are known, and might easily have been enumerated; but there is a possibility of there being others not known, which might have escaped. Last year there started up a post, which had not been before heard of, on the pretence of an old trading establishment. Who knows with absolute certainty how many similar cases may exist in the vast extent of wilderness, as far as the Lake of the Woods, which, for several years past, has been inaccessible to us? If our envoy’s information could have been perfect at the time of his last advices from America, between that period and the signing of the treaty changes might have taken place—that is, trading houses might have grown into military posts, as they did in the case referred to; a case which, in fact, happened after the departure of our envoy from the United States. Was it not far better than to hazard an imperfect specification, to use terms so general and comprehensive, as could not fail, in any circumstances, to embrace every case? Certainly it was; and the terms “all ports and places,“ which are those used in the treaty, are thus comprehensive. Nothing can escape them.
Neither is there the least danger that the uncertainty1 of a part of the boundary line can be made a pretext for detaining the posts which it was impossible to enumerate. This will appear from an inspection of the map. The only uncertain part of the boundary line (except that depending on the river St. Croix, which is on a side unconnected with the position of the posts) is that which is run from the Lake of the Woods to the Mississippi. The most western of our known posts is at Michilimackinac, at or near the junction of the lakes Huron and Michigan, eastward near eleven degrees of longitude of the Lake of the Woods, and about ten degrees of longitude of that point on the Mississippi, below the Falls of St. Anthony, where a survey, in order to a settlement of the line, is to begin. Moreover, our line, by the treaty of peace, is to pass through the Lake Huron, and the water communication between that lake and Lake Superior, and through the middle of Lake Superior, and thence westward through other waters, to the Lake of the Woods—that is, about half a degree of latitude more northward, and about eight degrees of longitude more westward, than any part of the Lake Michigan. Whence it is manifest, that any closing line, to be drawn from the Lake of the Woods to the Mississippi, must pass at a distance of several hundred miles from Michilimackinac. If the British, therefore, should be disposed to evade the surrender, they will seek for it some pretext more plausible than one which involves a palpable geographical absurdity. Nor can we desire a better proof of the ignorance or disingenuousness of the objectors to the treaty, than their having contrived one of this nature.
The general terms used were to be preferred, for the very reason that there was a doubt about the course of a part of the boundary line; for, if there should chance to exist any post now unknown, so near the line as to render it questionable, in the first instance, on which side it may fall, the moment the line is settled, the obligation to surrender will be settled with it.
The second objection loses all force, when it is considered that the exception can only operate till the first of June next, the period for the surrender of the posts; and that, in the meantime, there is ample space for settlement, without coming to disputable ground. There was, besides, real difficulty in an accurate definition. What the precincts and jurisdictions of the posts are, is a question of fact. In some instances, where, from there being no settlements over which an actual jurisdiction had been exercised, a good rule might have been, the distance of gunshot from the fortifications, which might have been settled at a certain extent in miles, say three or four. But in some cases an actual jurisdiction has been exercised, under circumstances which created obstacles to a precise definition. The case of Caldwell’s Manor, in the vicinity of Dutchman’s Point, is an example. There, a mixed jurisdiction has been sometimes exercised by the British, and by the State of Vermont, connected with a disputed title to that manor; one party claiming under an ancient French grant, and the other under the State of Vermont. Detroit and its vicinity would also have occasioned embarrassment. From the situation of the settlements, and of a number of dispersed trading establishments, a latitude was likely to have been required, to which it might have been expedient to give a sanction. In such situations, where a thing is to last but a short time, it is commonly the most eligible course, to avoid definition. It is obvious that no ill can result from the want of one, if the posts are surrendered at the time agreed; if not, it is equally plain that it can be of no consequence, because the whole article will be void.
The third objection becomes insignificant, the moment the real state of things is adverted to. This has been described in a former number for another purpose, but will now be recapitulated, with one or two additional facts. The first posts, beginning eastward, are Point-au-Fer and Dutchman’s Point, on Lake Champlain. The whole number of persons in this vicinity, over whom jurisdiction has been claimed by the British, may amount to a hundred families. But the claim of jurisdiction here has been only occasionally and feebly urged. And it is asserted, in addition, by well-informed persons, that the above-mentioned families have been, for some time, regularly represented in the Legislature of Vermont; the ordinary civil jurisdiction of which State has, with little interruption, been extended over them. At neither of the other posts, to wit, Oswego, Niagara, the Miami, Detroit, Michilimackinac, is there any settlement, except at Detroit, where, and in the vicinity of which, there may be between two and three thousand persons, chiefly French Canadians and their descendants. It will be understood, that I do not consider as a settlement two or three log houses for traders.
It follows, that the number of persons who can be embraced by the privileges stipulated is too insiderable to admit of attaching any political consequences whatever to the stipulation. Of what importance can it possibly be to the United States, whether two or three thousand persons, men, women, and children, are permitted to reside within their limits, either as British or American subjects, at their option? If the thing was an object of desire to Great Britain, for the accommodation of the individuals concerned, could it have merited a moment’s hesitation on our part? As to residence, it is at the courtesy of nations at peace to permit the residence of the citizens of each other within their respective territories. British subjects are now free, by our laws, to reside in all parts of the United States. As to the permission to become citizens, it has been the general policy and practice of our country to facilitate the naturalization of foreigners. And we may safely count on the interest of individuals, and on that desire to enjoy equal rights which is so deeply planted in the human breast, that all who resolve to make their permanent residence with us will become citizens.
It is true, that there may be a few obnoxious characters (though I do not recollect to have heard of more than two or three) among the number of those who have acquired by the stipulation a right to become citizens of the United States. But would it ever have been worthy of the dignity of the national wrath, to have launched its thunders against the heads of two, or three, or half a dozen despicable individuals? Can we suppose that, without a stipulation, it would have been thought worth the while to make a special exception of their cases out of the operation of our general laws of naturalization? And if this had not been done, would they not have found means, if they desired it, after the lapse of a short period, to acquire the rights of citizens? It is to be observed, that citizens of our own, who may have committed crimes against our laws, not remitted by the treaty of peace, would find no protection under this article.
Suppose the stipulation had not been made, what would have been the probable policy of the United States? Would it not have been to leave the handful of settlers undisturbed, in quiet enjoyment of their property, and at liberty, if British subjects, to continue such, or become American citizens, on the usual conditions? A system of depopulation, or of coercion to one allegiance or another, would have been little congenial with our modes of thinking, and would not, I am persuaded, have been attempted.
If, then, the treaty only stipulates in this respect what would have been the course of things without it, what cause for serious objection can there be on this account?
The matter of the fourth objection can only derive a moment’s importance from misapprehension. It seems to have been imagined, that there are large tracts of land, held under British grants, made since the peace, which are confirmed by the part of the article that gives the inhabitants the right of removing with, selling, or retaining their property.
In the first place it is to be observed, that if such grants had been made, the stipulation could not be deemed to confirm them, because our laws must determine the question, what is the property of the inhabitants; and they would rightfully decide, that the British Government, since the treaty of peace, could make no valid grants of land within our limits. Upon the ground even of its own pretensions, it could not have made such grants. Nothing more was claimed, than the right to detain the posts as a hostage. The right to grant lands presupposes much more, a full right to sovereignty and territory.
But, in the second place, it has always been understood, and upon recent and careful inquiry is confirmed, that the British Government has never, since the peace, made a grant of lands within our limits. It appears, indeed, to have been its policy to prevent settlements in the vicinity of the posts.
Hence the stipulation, as it affects lands, does nothing more than confirm the property of those which were holden at the treaty of peace; neither is the quantity considerable; and it chiefly, if not altogether, depends on titles acquired under the French Government, while Canada was a province of France.
In giving this confirmation, the treaty only pursues what is a constant rule among civilized nations. When territory is ceded or yielded up by one nation to another, it is a common practice, if not a special condition, to leave the inhabitants in the enjoyment of their property. A contrary conduct would be disgraceful to a nation; nor is it very reputable to the objectors to the treaty, that they have levelled their battery against this part of it. It is a reflection upon them, too, that they employ for the purpose terms which import more than is true, even on their own supposition, and are, therefore, calculated to deceive; for the confirmation of property to individuals could be at most a cession only of the right of soil, and not of territory, which term has a technical sense, including jurisdiction.
Let it be added, that the treaty of peace, in the article which provides “that there should be no future confiscations nor prosecutions against any person or persons by reason of the part which he or they might have taken in the war, and that no person should, on that account, suffer any future loss or damage, either in his person, liberty, or property,” did substantially what is made an objection to the treaty under consideration. It will not, I believe, be disputed, that it gave protection to all property antecedently owned, and not confiscated. Indeed, it is a question whether the stipulations cited would not have affected, with regard to other rights than those of property, a great part of what is regulated by the last treaty. Its provisions in this particular were, perhaps, in the main, unnecessary, further than to obviate a doubt which might have arisen from the suspension of the treaty, by the withholding of the posts.
Thus have I gone through every objection to the second article, which is in any degree colorable; and I flatter myself have shown, not only that the acquisition made by it is of great and real value, but that it stands as well as circumstances permitted, and is defensible in its details. I have been the more particular in the examination, because the assailants of the treaty have exerted all their ingenuity to discredit this article, from a consciousness, no doubt, that it is a very valuable item of the treaty, and that it was important to their cause to envelop it in as thick a cloud of objection as they were able to contrive. As an expedient of party, there is some merit in the artifice; but a sensible people will see that it is merely artifice. It is a false calculation, that the people of this country can ever be ultimately deceived.
This uncertainty, it is to be observed, results not from the late treaty, but from the treaty of peace. It is occasioned by its being unknown whether any part of the Mississippi extends far enough north to be intersected by a due west line from the Lake of the Woods.