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no . X - 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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The object of the third article is connected with that of the second. The surrender of the posts naturally drew with it an arrangement with regard to inland trade and navigation. Such an arrangement, convenient in several respects, appears to be in some respects necessary. To restrain the Indians on either side of the line from trading with the one party or the other, at discretion, besides the questionableness of the right, could not be attempted without rendering them disgusted and hostile. The truth of this seems to have influenced the conduct of Great Britain and France, while the latter was in possession of Canada. The 15th article of the treaty of peace of Utrecht, in the year 1713, allows free liberty to the Indians on each side to resort for trade to the British and French colonies. It is to be observed, too, that the Indians not only insist on a right of going to trade with whom they please, but of permitting whom they please to come to trade with them, and also to reside among them for that purpose. Thus, the Southern and Southwestern Indians within our limits maintain a constant intercourse with Spain, established on the basis of treaty,—nor has their right to do it been hitherto contested by the United States. Indeed, on what clear principle of justice could this natural right of trade, of a people not subject to our ordinary jurisdiction, be disputed? This claim, on their part, gives a corresponding claim to neighboring nations to trade with them. Spain would think the pretension to exclude her inadmissible; and Great Britain would have thought the same, if she had found it her interest to assert the right of intercourse;—views which would always be seconded by the Indians from regard to their own interest and independence. It was a point, therefore, which it much concerned the preservation of good understanding between the parties and with the Indians, to regulate on some equitable plan; and the more liberal the plan, the more agreeable to a natural course of things, and to the free participation of mutual advantages, the more likely was it to promote and prolong that important benefit.
In the second place, the expediency of some arrangement was indicated by the circumstance of the boundary line between the parties, running for an extent of sixteen hundred miles through the middle of the same rivers, lakes, and waters. It may be deemed impossible, from the varying course of winds and currents, for the ships of one party to keep themselves constantly within their own limits, without passing or transgressing those of the other. How, indeed, was the precise middle line of those great lakes to be always known?
It appears evident, that to render the navigation of these waters useful to, and safe for, both parties, it was requisite that they should become common. Without this, frequent forfeitures to enforce interdictions of intercourse might be incurred, and there would be constant danger of interference and controversy. It is probable, too, that when those waters are better explored in their whole extent, it will be found that the best navigation of those lakes is sometimes on the one side, sometimes on the other, and that common convenience will, in this respect, also be promoted by community of right.
Again, it is almost always mutually beneficial for bordering territories to have free and friendly intercourse with each other. This relates not only to the advantages of an interchange of commodities for the supply of mutual wants, and to those of the reciprocal creation of industry connected with that interchange, but also to those of avoiding jealousy, collision, and contest, of preserving friendship and harmony. Proximity of territory invites to trade; the bordering inhabitants, in spite of every prohibition, will endeavor to carry it on; if not allowed, illicit adventures take the place of the regular operations of legalized commerce—individual interest leads to collusions to evade restraining regulations—habits of infracting the laws are produced—morals are perverted—securities, necessarily great in proportion as they counteract the natural course of things, lay the foundation of discontents and quarrels. Perhaps it may be safely affirmed, that freedom of intercourse, or violent hatred and enmity, is the alternative in every case of contiguity of territory.
The maxims of the United States have hitherto favored a free intercourse with all the world. They have conceived that they had nothing to fear from the unrestrained competition of commercial enterprise, and have only desired to be admitted to it on equal terms. Hence, not only the communication by sea has been open with the adjacent territories on our continent as well as with more distant quarters of the globe: but two ports have been erected on Lake Champlain for the convenience of interior commerce with Canada; and there is no restriction upon any nation, to come by the Mississippi to the only port which has been established for that side of the Union. These arrangements have excited neither blame nor criticism.
Our envoy, therefore, in agreeing to a liberal plan of intercourse with the British territories in our neighborhood, has conformed to the general spirit of our country, and to the general policy of our laws. Great Britain, in acceding to such a plan, departed from her system of colonial monopoly, a departure which ought to be one recommendation of the plan to us; for every relaxation of that system paves the way for other and further relaxations. It might have been expected, also, that a spirit of jealousy might have proved an obstacle on the part of Great Britain; since, especially if we consider the composition of those who inhabit and are likely to inhabit Canada, it is morally certain that there must be, as the result of a free intercourse, a far greater momentum of influence of the United States upon Canada, than of Canada upon the United States. It would not have been surprising, if this jealousy had sought to keep us at a distance, and had counteracted the wiser policy of limiting our desires by giving us possession of what is alone to us truly desirable, the advantages of commerce, rather than of suffering our wishes to be stimulated and extended by privation and restraint.
New ideas seem of late to have made their way among us. The extremes of commercial jealousy are inculcated. Regulation, restriction, exclusion, are now with many the favorite topics; instead of feeling pleasure that new avenues of trade are opened, a thousand dangers and mischiefs are portrayed when the occasion occurs. Free trade with all the world seems to have dwindled into trade with France and her dominions. The love-sick partisans of that country appear to regard her as the epitome of the universe; to have adopted for their motto, “All for love, and the world well lost.”
These new propensities towards commercial jealousy have been remarkably exemplified with respect to the article immediately under consideration. Truly estimated, it is a valuable ingredient in the treaty; and yet there is, perhaps, no part of it which has been more severely reprobated. It will be easy to show that it has been extremely misrepresented, and that what have been deemed very exceptionable features do not exist at all.
We will first examine what the article really does contain, and afterwards what are the comparative advantages likely to result to the two countries.
The main stipulation is, that “it shall at all times be free to his Majesty’s subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the boundary line, freely to pass and repass, by land and inland navigation, into the respective territories and countries of the two parties on the continent of America (the country within the limits of the Hudson’s Bay Company only excepted), and to navigate all the lakes, rivers, and waters thereof, and freely to carry on trade and commerce with each other.”
The subject-matter of this stipulation is plainly inland trade and commerce, to be carried on by land passage and inland navigation. This appears, first, from the terms of the article. The subjects and citizens of the two parties, and also the Indians dwelling on each side of the boundary line, are freely to pass and repass. In what manner? by land and inland navigation: to what places? into the respective territories and countries of the two parties, on the continent of America (the country of the Hudson’s Bay Company only excepted). They are also to navigate all the lakes, rivers, and waters thereof, and freely to carry on trade and commerce with each other. This right to navigate lakes, rivers, and waters, must be understood with reference to inland navigation: because this gives it a sense conformable with the antecedent clause, with which it is immediately connected, as part of a sentence; because the right to pass and repass, being expressly restricted to land and inland navigation, it would not be natural to extend it by implication, on the strength of an ambiguous term, to passage by sea, or by any thing more than inland navigation; because the lakes and rivers have direct reference to inland navigation, showing that to be the object in view; and the word “waters,” from the order in which it stands, will, most consistently with propriety of composition, be understood as something less than lakes and rivers, as ponds, canals, and those amphibious waters, to which it is scarcely possible to give a name; and because the waters mentioned are “waters thereof,” that is, waters of the territories and countries of the two parties on the continent of America,—a description which cannot very aptly be applied to the sea, or be supposed to include navigation by sea to the United States, or from them to the British territories. It is true, that nations, for various purposes, claim and exercise jurisdiction over the seas immediately adjacent to their coasts; yet this is subject to the common right of nations to the innocent use of those seas for navigation; and it is not, prima facie, presumable, that two nations, speaking of the waters of each other, would mean to give this appropriate denomination to waters in which both claimed some common right. The usual description of such waters in treaties is, “the seas near the countries,” etc. But were it otherwise, still the navigating from the open sea into these waters could not be within the permission to navigate those waters, and might be prohibited.
The above construction is confirmed by the general complexion of the treaty. It is the manifest province of the eighteen articles, which succeed the first ten, to regulate external commerce and navigation. The regulations they contain are introduced thus, by the eleventh article: “It is agreed between his Majesty and the United States of America, that there shall be a reciprocal and entirely perfect liberty of navigation and commerce between their respective people, in the manner, under the limitations, and on the conditions specified in the following articles.” Then follow articles which provide fully and distinctly for trade and navigation between the United States and the British West Indies, between the Asiatic dominions of Great Britain and the United States, and lastly, between the European dominions of Great Britain and the United States. These eighteen articles properly constitute the treaty of commerce and navigation between the two countries. Their general scope, and some special provisions which they contain, prove that the object of the third article is local and partial; that it contemplates, exclusively, an interior commerce by land and inland navigation (except as to the Mississippi), and particularly that it does not reach at all our Atlantic ports. An instance of one of the special provisions alluded to will be cited in the further examination of this article.
In opposition to this construction, much stress is laid upon the provisions which immediately succeed the clauses that have been quoted. They are in these words: “But it is understood, that this article does not extend to the admission of vessels of the United States into the seaports, harbors, bays, or creeks of his Majesty’s said territories, nor into such parts of the rivers in his said territories as are between the mouth thereof and the highest port of entry from the sea, except in small vessels trading bona fide between Montreal and Quebec; nor to the admission of British vessels from the sea into the rivers of the United States, beyond the highest ports of entry for foreign vessels from the sea!” The last, it is said, contains an implication, that under this article, British vessels have a right to come to our highest ports of entry for foreign vessels from the sea, while we are excluded from the seaports of the British territories on this continent.
But this is altogether an erroneous inference. The clauses last cited are inserted for greater caution, to guard expressly against any construction of the article by implications more or less remote; contrary to the actual regulations of the parties, with regard to external commerce and navigation. Great Britain does not now permit a trade by sea to Nova Scotia and Canada. She therefore declares that the article shall not be deemed to contravene this regulation. The United States now permit foreign vessels to come to certain ports of entry from the sea, but exclude them from other more interior ports of entry, to which our own vessels may come.1 It is therefore declared on their part, that the article shall not be construed to contravene this regulation. This was the more proper as the right of inland navigation might have given some color to the claim of going from an outer to an inner port of entry. But this negative of an implication, which might have found some color in the principal provision, can never be construed into an affirmative grant of a very important privilege, foreign to that principal provision. The main object of the article, it has been seen, is trade by land and inland navigation. Trade and navigation by sea, with our seaports, is an entirely different thing. To infer a positive grant of this privilege, from a clause which says, that the right of inland navigation shall not be construed to permit vessels coming from the sea, to go from the ports of entry, to which our laws now restrict them, to more interior ports, would be contrary to reason, and to every rule of sound construction. Such a privilege could never be permitted to be founded upon any thing less than a positive and explicit grant. It could never be supported by an implication drawn from an article relative to a local and partial object, much less by an implication drawn from the negative of another implication. The pretension, that all our ports were laid open to Great Britain by a covert and side-wind provision, and this without reciprocity, without a right of access to a single seaport of the other party in any part of the world, would be too monstrous to be tolerated for an instant. The principles of equity between nations, and the established rules of interpretation, would unite to condemn so great an inequality, if another sense could possibly be found for the terms from which it might be pretended to be deduced. It would be in the present case the more inadmissible, because the object is embraced and regulated by other parts of the treaty on terms of reciprocity.
The different mode of expression, in the clause last cited, when speaking of the British territories, and when speaking of the United States, has furnished an argument for the inference which has been stated. But this difference is accounted for by the difference in the actual regulations of the parties, as described above. The object was on each side to oust an implication interfering with those regulations. The expressions to effect it were commensurate with the state of the fact on each side; and consequently do not warrant any collateral or special inference.
The only positive effect of these clauses is to establish, that the navigation from Montreal to Quebec shall be carried on in what are called “small vessels, trading bona fide between Montreal and Quebec.” In determining their sense, it merits some observation, that they do not profess to except from the operation of the general provisions of the article the seaports, etc., of the British territories; but declare, that it is understood that those provisions do not extend to them. This is more a declaration that the antecedent provisions were not so broad as to comprehend the cases, than an exception of the cases from the operation of those provisions.
Those who are not familiar with laws and treaties, may feel some difficulty about the position, that particular clauses are introduced only for greater caution, without producing any new effect; but those who are familiar with such subjects, know, that there is scarcely a law or a treaty which does not offer examples of the use of similar clauses; and it not unfrequently happens, that a clear meaning of the principal provision is rendered obscure by the excess of explanatory precaution.
The next clause of this article is an exception to the general design of it, confirming the construction I have given. “The river Mississippi shall, however, according to the treaty of peace, be entirely open to both parties; and it is further agreed that all the ports and places on its eastern side, to whichsoever of the parties belonging, may freely be resorted to and used by both parties, in as ample a manner as any of the Atlantic ports or places of the United States, or any of the ports or places of his majesty in Great Britain.”
If the general provision gives access to all our ports, which must be the doctrine if it gives access to our Atlantic ports, then it would equally have this effect with regard to the Mississippi. But this clause clearly implies the contrary, not only by introducing a special provision for the ports of the Mississippi, but by introducing it expressly, as a further or additional agreement; the words are: “it is further agreed, etc., and these ports are to be enjoyed by each party, in as ample a manner as any of the Atlantic ports or places of the United States, or any of the ports or places of his majesty in Great Britain. This reference to our Atlantic ports, coupling them with the ports of Great Britain, shows that the Mississippi ports are to be regulated by a rule or standard different from the ports for that inland navigation, which is the general object of the article; else, why that special reference? why not have stopped at the words “used by both parties“? If it be said, that the reference to our Atlantic ports implies, that they are within the purview of the article, let it be observed, that the same argument would prove that the ports of Great Britain are also within its purview, which is plainly erroneous; for the main provisions are expressly confined to the territories of the parties on this continent. The conclusion is that the reference is to a standard, out of the article, and depending on other parts of the treaty.
It may be useful to observe here, that the Mississippi ports being to be used only in as ample, and not in a more ample manner, than our Atlantic ports, and the ports of Great Britain, will be liable at all times to all the regulations, privileges, and restrictions of the ports with which they are assorted.
The next clause is a still further refutation of the construction which I oppose.
“All goods and merchandise, whose importation into his majesty’s said territories in America shall not be entirely prohibited, may freely, for the purposes of commerce, be carried into the same, in the manner aforesaid, by the citizens of the United States; and such goods and merchandise shall be subject to no higher or other duties than would be payable by his majesty’s subjects on the importation of the same from Europe, into the said territories: and in like manner, all goods and merchandise, whose importation into the United States shall not be wholly prohibited, may freely, for the purposes of commerce, be carried into the same, in the manner aforesaid, subject to no higher or other duties than would be payable by the citizens of the United States, on the importation of the same in American vessels into the Atlantic ports of the said States: and all goods not prohibited to be exported from the said territories respectively, may, in like manner, be carried out of the same by the two parties respectively, paying duty as aforesaid.”
The words, “in the manner aforesaid,“ occur twice in these clauses, and their equivalent, “in like manner,“ once. What is the meaning of this so often repeated phrase? it cannot be presumed, that it would have been inserted so frequently without having to perform some office of consequence. I answer, that it is evidently the substitute for these other words of the main provision, “by land and inland navigation.“ This is “the manner aforesaid.“ This is the channel, through which goods and merchandises passing would be subject to no other or higher duties than would be payable in the British territories by British subjects, if imported from Europe; or in the territories of the United States, by citizens of the United States, if brought by American vessels into our Atlantic ports. No other reasonable use can be found for the terms. If they are denied this sense, they had much better been omitted, as being not only useless but as giving cause to suppose a restriction of what, it is pretended, was designed to be general—a right of importing in every way, and into all parts of the United States, goods and merchandise, if not entirely prohibited, on the same duties as are payable by our own citizens when brought in our own vessels.
These words, “whose importation into the United States shall not be entirely prohibited,” is a further key to the true sense of the article. They are equivalent to these other words: “whose importation into all parts of the United States shall not be prohibited.” The design of this clause is to prevent importation, through the particular channels contemplated by the article, being obstructed by a partial or by any other than a general prohibition. As long as certain goods may be introduced into the United States through the Atlantic ports, they may also be brought into them through the channels designated by this article—that is, by land and inland navigation. The making a prohibition in the given case to depend on a general prohibition, is conclusive to prove, that the article contemplates only particular channels. On any other supposition, the clause is nonsense. The true reading, then, of this part of the article, must be as follows: “Goods and merchandise, whose importation into all parts of the United States shall not be prohibited, may freely, for the purposes of commerce, be carried into the same, in manner aforesaid—that is, by land and inland navigation, from the territories of his majesty on the continent of America.”
There are still other expressions in the article, which are likewise an index to its meaning. They are these: “would be payable by the citizens of the United States, on the importation of the same in American vessels into the Atlantic ports of the said States.“ This reference to a rate of duties, which would be payable on importation into the Atlantic ports, as a rule or guide for the rate of duties, which is to prevail in the case meant to be comprehended in the article, is full evidence that importation in the Atlantic ports is not included in that case. The mention of importation in American vessels, confirms this conclusion, as it shows that the article itself contemplates, that the discrimination made by our existing laws may continue.
But the matter is put out of all doubt by those parts of the fifteenth article which reserve to the British Government the right of imposing such duty as may be adequate to countervail the difference of duty, now payable on the importation of European and Asiatic goods, when imported into the United States in British and American vessels; and which stipulate, that “the United States will not increasethe now subsisting difference between the duties payable on the importation of any articles in British or American vessels.”
This is a demonstration that the treaty contemplates, as consistent with it, a continuance of the present difference of duties on importations in American and British vessels; and consequently, that the third article, which stipulates equal duties, as to the cases within it, does not extend to importations into our Atlantic ports, but is confined to importations by land and inland navigation. Though this article be of temporary duration, yet as an evidence of the sense of the parties, it will always serve as a rule of construction for every part of the instrument.
These different views of the article establish, beyond the possibility of doubt, that except with regard to the Mississippi, inland trade and navigation are its sole objects—that it grants no right or privilege whatever in our Atlantic ports,—and that with regard to the ports of the Mississippi, it only establishes this principle: that Great Britain shall always enjoy there the same privileges which by treaty or law she is allowed to have in our Atlantic ports.
I remark incidentally, for a purpose which will appear hereafter, that as far as this article is concerned, we are free to prohibit the importation into the United States at large, of any British article whatever, though we cannot prohibit its importation partially—that is, merely from her territories in our neighborhood, by land or inland navigation; but we may prohibit the importation by sea from those territories; nor is there any other part of the treaty by which this is prevented.
The remaining clauses of this article establish the following points: “That no duty of entry shall be levied by either party on peltries brought by land or inland navigation, into the respective territories”; that Indians, passing and repassing with their own goods, shall pay no impost or duty upon them, but goods in bales, or other large packages, unusual among Indians, shall not be considered as their goods; that tolls and rates of ferriage shall be the same on both sides as are paid by natives; that no duties shall be paid by either party on the mere transit of goods across portages and carrying-places from one part to another of the territory of the same party; that the respective governments will promote friendship, good neighborhood, and amicable intercourse, by causing speedy and impartial justice to be done, and necessary protection to be extended to all who may be concerned therein.
I shall conclude this paper with an observation or two on the meaning of the terms, inland navigation. These terms have no technical meaning defined in the laws of either country, nor have they any precise meaning assigned by the law of nations. They, however, ex vi termini, exclude navigation from the sea; and as a general rule, I should say, that inland navigation begins there where sea navigation ends. Where is this? I answer, at the ports of entry from the sea. By the laws of Great Britain and of the United States, all rivers are arms of the sea as far as the tides flow. It would be a consequence of this principle, that sea navigation would reach to the head of tide-water. But some more obvious and notorious rule ought to govern the interpretation of national compacts. The ports of entry from the sea are conceived to be the proper rule.
In the case under consideration, the general spirit of the article may require, that all the waters which divide the territories of the parties should be in their whole extent common to both. As to other communicating waters, accessible under the article, the reciprocal limit of the right will be the ports of entry from the sea. This is to be understood with the exception of the Mississippi, to the ports of which, access from the sea is granted under the qualification which has been pointed out.
An example of this is found in the State of New York. Foreign vessels can only enter and unlade at the city of New York; vessels of the United States may enter at the city of Hudson, and unlade there and at Albany.