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• Points to Be Considered In the Instructions to Mr. Jay, Envoy Extraordinary to Great Britain
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• Treaty Project
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• No . Xxii
• No . Xxiii 1

no. XVIII

1795.

It is provided by the tenth article of the treaty that “neither debts due from individuals of one nation to individuals of the other, nor shares, nor moneys, which they may have in the public funds, or in the public or private banks, shall ever in any event of war, or national difference, be sequestered or confiscated; it being unjust and impolitic, that debts and engagements contracted and made by individuals, having confidence in each other, and in their respective governments, should ever be destroyed or impaired by national authority on account of national differences and discontents.”

The virulence with which this article has been attacked cannot fail to excite very painful sensations in every mind duly impressed with the sanctity of public faith, and with the importance of national credit and character; at the same time that it furnishes the most cogent reasons to desire that the preservation of peace may obviate the pretext and the temptation to sully the honor and wound the interests of the country by a measure which the truly enlightened of every nation would condemn.

I acknowledge, without reserve, that in proportion to the vehemence of the opposition against this part of the treaty, is the satisfaction I derive from its existence, as an obstacle the more to the perpetration of a thing, which, in my opinion, besides deeply injuring our real and permanent interest, would cover us with ignominy. No powers of language at my command can express the abhorrence I feel at the idea of violating the property of individuals, which, in an authorized intercourse, in time of peace, has been confided to the faith of our Government and laws, on account of controversies between nation and nation. In my view, every moral and every political sentiment unite to consign it to execration.

Neither will I dissemble, that the dread of the effects of the spirit which patronizes that idea, has ever been with me one of the most persuasive arguments for a pacific policy on the part of the United States. Serious as the evil of war has appeared, at the present stage of our affairs, the manner in which it was to be apprehended it might be carried on, was still more formidable, in my eyes, than the thing itself. It was to be feared, that in the fermentation of certain wild opinions, those wise, just, and temperate maxims, which will for ever constitute the true security and felicity of a state, would be overruled; and that a war upon credit, eventually upon property, and upon the general principles of public order, might aggravate and embitter the ordinary calamities of foreign war. The confiscation of debts due to the enemy, might have been the first step of this destructive process. From one violation of justice to another, the passage is easy. Invasions of right, still more fatal to credit, might have followed; and this, by extinguishing the resources which that could have afforded, might have paved the way to more comprehensive and more enormous depredations for a substitute. Terrible examples were before us; and there were too many not sufficiently remote from a disposition to admire and imitate them.

The earnest and extensive clamors against the part of the treaty under consideration, confirm that anticipation; and while they enhance the merit of the provision, they also inspire a wish, that some more effectual barrier had been erected against the possibility of a contrary practice being ever, at any illfated moment, obtruded upon our public councils. It would have been an inestimable gem in our national Constitution, had it contained a positive prohibition against such a practice, except, perhaps, by way of reprisal for the identical injury on the part of another nation.

Analogous to this is that liberal and excellent provision, in the British Magna Charta, which declares, that “if the merchants of a country at war with England, are found there in the beginning of the war, they shall be attached without harm of body or effects, until it is known in what manner English merchants are treated in the enemy’s country; and if they are safe, that the foreign merchants shall also be safe.”1 The learned Lord Coke pronounces this to be jus belli or law of war. And the elegant and the enlightened Montesquieu, speaking of the same provision, breaks out into this exclamation: “It is noble that the English nation have made this one of the articles of its liberty.”2 How much it is to be regretted, that our magna charta is not unequivocally decorated with a like feature; and that, in this instance, we, who have given so many splendid examples to mankind, are excelled in constitutional precautions for the maintenance of justice!

There is, indeed, ground to assert, that the contrary principle would be repugnant to that article of our Constitution, which provides, that “no State shall pass any law impairing the obligation of contracts.” The spirit of this clause, though the letter of it be restricted to the States individually, must, on fair construction, be considered as a rule for the United States; and if so, could not easily be reconciled with the confiscation or sequestration of private debts in time of war. But it is a pity, that so important a principle should have been left to inference and implication, and should not have received an express and direct sanction.

This position must appear a frightful heresy in the eyes of those who represent the confiscation or sequestration of debts, as our best means of retaliation and coercion, as our most powerful, sometimes as our only, means of defence.

But so degrading an idea will be rejected with disdain, by every man who feels a true and well-informed national pride; by every man who recollects and glories, that in a state of still greater immaturity, we achieved independence without the aid of this dishonorable expedient1 that even in a revolutionary war, a war of liberty against usurpation, our national councils were too magnanimous to be provoked or tempted to depart so widely from the path of rectitude; by every man, in fine, who, though careful not to exaggerate, for rash and extravagant projects, can nevertheless fairly estimate the real resources of the country, for meeting dangers which prudence cannot avert.

Such a man will never endure the base doctrine, that our security is to depend on the tricks of a swindler. He will look for it in the courage and constancy of a free, brave, and virtuous people—in the riches of a fertile soil—an extended and progressive industry—in the wisdom and energy of a well-constituted and well-administered government—in the resources of a solid, if well-supported, national credit—in the armies, which, if requisite could be raised—in the means of maritime annoyance, which if necessary, could be organized, and with which we could inflict deep wounds on the commerce of a hostile nation. He will indulge an animating consciousness, that while our situation is not such as to justify our courting imprudent enterprises neither is it such as to oblige us, in any event, to stoop to dishonorable means of security, or to substitute a crooked and piratical policy, for the manly energies of fair and open war.

That is the consequence of the favorite doctrine that the confiscation or sequestration of private debts is our most powerful, if not our only, weapon of defence; Great Britain is the sole power against whom we could wield it, since it is to her citizens alone, that we are largely indebted. What are we to do, then, against any other nation which might think fit to menace us? Are we, for want of adequate means of defence, to crouch beneath the uplifted rod, and, with abject despondency, sue for mercy? Or has Providence guaranteed us especially against the malice or ambition of every power on earth, except Great Britain?

It is at once curious and instructive to mark the inconsistencies of the disorganizing sect. Is the question, to discard a spirit of accommodation, and rush into war with Great Britain? Columns are filled with the most absurd exaggerations, to prove that we are able to meet her, not only on equal, but superior terms. Is the question, whether a stipulation against the confiscation or sequestration of private debts ought to have been admitted into the treaty? Then are we a people destitute of the means of war, with neither arms, nor fleets, nor magazines—then is our best, if not our only, weapon of defence, the power of confiscating or sequestrating the debts which are due to the subjects of Great Britain; in other words, the power of committing fraud, of violating the public faith, of sacrificing the principles of commerce, of prostrating credit. Is the question, whether free ships shall make free goods, whether naval stores shall or shall not be deemed contraband? Then is the appeal to what is called the modern law of nations; then is the cry, that recent usage has changed and mitigated the rigor of ancient maxims. But is the question, whether private debts can be rightfully confiscated or sequestered? Then ought the utmost rigor of the ancient doctrine to govern, and modern usage and opinion to be discarded. The old rule or the new is to be adopted or rejected, just as may suit their convenience.

An inconsistency of another kind, but not less curious, is observable in positions, repeatedly heard from the same quarter, namely, that the sequestration of debts is the only peaceable means of doing ourselves justice and avoiding war. If we trace the origin of the pretended right to confiscate or sequester debts, we find it, in the very authority, principally relied on to prove it, to be this (Bynkershoeck, Quæstiones furis Publici, I. S. 2): “Since it is the condition of war, that enemies may be deprived of all their rights, it is reasonable, that everything of an enemy’s, found among his enemies, should change its owner, and go to the treasury.” Hence it is manifest, that the right itself, if it exist, presupposes, as the condition of its exercise, an actual state of war, the relation of enemy to enemy. Yet we are fastidiously and hypocritically told, that this high and explicit mode of war, is a peaceable means of doing ourselves justice and avoiding war. Why are we thus told? Why is this strange paradox attempted to be imposed upon us? Why, but that it is the policy of the conspirators against our peace, to endeavor to disguise the hostilities, into which they wish to plunge us, with a specious outside, and to precipitate us down the precipice of war, while we imagine we are quietly and securely walking along its summit.

Away with these absurd and incongruous sophisms! Blush, ye apostles of temerity, of meanness, and of deception! Cease to beckon us to war, and at the same time to freeze our courage by the cowardly declaration that we have no resource but in fraud! Cease to attempt to persuade us that peace may be obtained by means which are unequivocal acts of war. Cease to tell us that war is preferable to dishonor, and yet, as our first step, to urge us into irretrievable dishonor. A magnanimous, a sensible people cannot listen to your crude conceptions. Why will ye persevere in accumulating ridicule and contempt upon your own heads?

In the further observations which I shall offer on this article, I hope to satisfy, not the determined leaders or instruments of faction, but all discerning men, all good citizens, that, instead of being a blemish, it is an ornament to the instrument in which it is contained; that it is as consistent with true policy as with substantial justice; that it is, in substance, not without precedent in our other treaties, and that the objections to it are futile.

Camillus.

[1]Si Mercatores sint de terra contra nos guerrira, et tales inveniantur in terra nostra in principio guerræ, attachientur sine damno corporum suorum vel rerum, donec sciatur a nobis vel a capitali justiciario nostro quo modo mercatores terræ nostræ tractantur qui tunc inveniantur in terra illa contra nos guerrira; et si nostri salvi sint ibi, alii salvi sint in terra nostra. Magna Charta, cap. xxx.

[2]Spirit of Laws, Book XX., chap. xiii.

[1]The federal government never resorted to it; and a few only of the State Governments stained themselves with it. It may, perhaps, be said, that the Federal Government had no power on the subject; but the reverse of this is truly the case. The Federal Government alone had power. The State Governments had none, though some of them undertook to exercise it. This position is founded on the solid ground that the confiscation or sequestration of the debts of an enemy is a high act of reprisal and war, necessarily and exclusively incident to the power of making war, which was always in the Federal Government.