Front Page Titles (by Subject) no . XXII - The Works of Alexander Hamilton, (Federal Edition), vol. 5
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no . XXII - 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 analogy of the stipulation in the 10th article, with stipulations in our other treaties, and in the treaties between other nations, is the remaining topic of discussion. After this, attention will be paid to such observations, by way of objection to the article, as may not have been before expressly or virtually answered.
The 20th article of our treaty of amity and commerce with France is in these words:
“For the better promoting of commerce, on both sides, it is agreed, that if a war shall break out between the said two nations, six months, after the proclamation of war, shall be allowed to the merchants in the cities and towns where they live, for selling and transporting their goods and merchandises; and if any thing be taken from them or any injury be done them within that term by either party, or the people or subjects of either, full satisfaction shall be made for the same.”
The 18th article of our treaty of amity and commerce with the United Netherlands is in these words:
“For the better promoting of commerce, on both sides, it is agreed, that if a war should break out between their high Mightinesses, the States General of the United Netherlands, and the United States of America, there shall always be granted to the subjects on each side, the term of nine months, after the date of the rupture or the proclamation of war, to the end that they may retire with their effects and transport them where they please, which it shall be lawful for them to do, as well as to sell and transport their effects and goods, with all freedom and without any hindrance, and without being able to proceed, during the said term of nine months, to any arrest of their effects, much less of their persons; on the contrary, there shall be given them, for their vessels and effects which they would carry away, passports and safe conducts for the nearest ports of their respective countries, and for the time necessary for the voyage.”
The 22d article of our treaty of amity and commerce with Sweden is in these words:
“In order to favor commerce on both sides as much as possible, it is agreed, that in case war should break out between the two nations, the term of nine months after the declaration of war shall be allowed to the merchants and subjects respectively, on one side and on the other, in order that they may withdraw with their effects and movables, which they shall be at liberty to carry off or to sell where they please, without the least obstacle, nor shall any seize their effects, and much less their persons, during the said nine months; but, on the contrary, passports, which shall be valid for a time necessary for their return, shall be given them for their vessels and the effects which they shall be willing to carry with them, and if anything is taken from them or any injury is done to them by one of the parties, their people and subjects, during the term above prescribed, full and entire satisfaction shall be made to them on that account.”
The 23d article of our treaty of amity and commerce with Prussia contains this provision:
“If war should arise between the two contracting parties, the merchants of either country, then residing in the other, shall be allowed to remain nine months, to collect their debts and settle their affairs, and may depart freely, carrying off all their effects without molestation or hindrance.”
These articles of four, and the only commercial, treaties we had with foreign powers, prior to the pending treaty with Great Britain, though differing in terms, agree in substance, except as to time, which varies from six to nine months. And they clearly amount to this: that upon the breaking out of a war between the contracting parties in each case, there shall be, for a term of six or nine months, full protection and security to the persons and property of the subjects of one which are then in the territories of the other, with liberty to collect their debts,1 to sell their goods and merchandises, and to remove, with their effects, wheresoever they please. For this term of six or nine months, there is a complete suspension of the pretended right to confiscate or sequester, giving, or being designed to give, an opportunity to withdraw the whole property which the subjects or citizens of one party have in the country of the other.
The differences between these stipulations and that in the article under examination are chiefly these: The latter is confined to debts, property in the public funds and in public and private banks, without any limitation of the duration of the protection. The former comprehends, in addition, goods and merchandises, with a limitation of the protection to a term of six or nine months; but with the intent and supposition that the term allowed may and will be adequate to entire security. The principle, therefore, of all the stipulations is the same; each aims at putting the persons and property of the subjects of one enemy, especially merchants, being within the country of the other enemy at the commencement of a war, out of the reach of confiscation or sequestration.
The persons whose names are to our other treaties, on the part of the United States, are Benjamin Franklin, Silas Deane, Arthur Lee, John Adams, and Thomas Jefferson. The three first are to the treaty with France; Mr. Adams is singly to that with the United Netherlands; Dr. Franklin singly to that with Sweden; and these two, with Mr. Jefferson, are jointly to that with Prussia. The treaty with Sweden was concluded in April, 1783; that with Prussia, in August, 1785. These dates repel the idea, that considerations of policy, relative to the war, might have operated in the case.
We have, consequently, the sanction of all these characters to the principle which governed the stipulation entered into by Mr. Jay; and not only from the ratification of the former treaties at different periods, distant from each other, by different descriptions of men in our public councils, but also from there never having been heard in the community a lisp of murmur against the stipulation, through a period of seventeen years, counting from the date of the treaty with France, there is just ground to infer a coincidence of the public opinion of the country.
I verily believe, that if, in the year 1783, a treaty had been made with England, containing an article similar to the 10th in the present treaty, it would have met with general acquiescence. The spirit of party had not then predisposed men’s minds to estimate the propriety of a measure according to the agent, rather than according to its real fitness and quality. What would then have been applauded as wise, liberal, equitable, and expedient, is now, in more instances than one, under the pestilential influence of that baneful spirit, condemned as improvident, impolitic, and dangerous.
Our treaty with Prussia, the 23d article of which has been cited, is indeed a model of liberality, which, for the principles it contains, does honor to the parties, and has been in this country a subject of deserved and unqualified admiration. It contradicts as if studiously, those principles of restriction and exclusion, which are the foundations of the mercantile and navigating system of Europe. It grants perfect freedom of conscience and worship to the respective subjects and citizens, with no other restraint than that they shall not insult the religion of others. Adopting the rule, that free ships shall make free goods, it extends the protection to the persons as well as to the goods of enemies. Enumerating, as contraband, only “arms, ammunition, and military stores,” it even provides that contraband articles shall not be confiscated, but may be taken on the condition of paying for them. It provides against embargoes of vessels and effects. It expressly exempts women, children, scholars of every faculty, cultivators of the earth, artisans, manufacturers, and fishermen, unarmed and inhabiting unfortified towns, villages, and places, and, in general, all others whose occupations are for the common subsistence and benefit of mankind, their houses, fields, and goods, from molestation in their persons and employments, and from burning, wasting, and destruction, in time of war; and stipulates payment at a reasonable price for what may be necessarily taken from them for military use. It likewise protects from seizure and confiscation, in time of war, vessels employed in trade, and inhibits the granting commissions to private armed vessels, empowering them to take or destroy such trading vessels, or to interrupt their commerce; and it makes a variety of excellent provisions to secure to prisoners of war a humane treatment.
These particulars are stated as evidence of the temper of the day, and of a policy, which then prevailed, to bottom our system with regard to foreign nations upon those grounds of moderation and equity, by which reason, religion, and philosophy had tempered the harsh maxims of more early times. It is painful to observe an effort to make the public opinion, in this respect, retrograde, and to infect our councils with a spirit contrary to these salutary advances toward improvement in true civilization and humanity.
If we pass from our own treaties to those between other nations, we find that the provisions which have been extracted from ours have very nearly become formulas in the conventions of Europe. As examples of this may be consulted the following articles of treaties between Great Britain and other powers (to wit), the XVIIIth article of a treaty of peace and commerce with Portugal, in 1642; the XXXVIth article of a treaty of peace, commerce, and alliance with Spain, in 1667; the XIXth article of a treaty of peace, and the IId of a treaty of commerce with France, both in 1713; and the XIIth article of a treaty of commerce and navigation with Russia, in 1766.
The article with Portugal provides, that if difficulties and doubts shall arise between the two nations, which give reason to apprehend the interruption of commerce, public notice of it shall be given to the subjects on both sides, and after that notice, two years shall be allowed to carry away the merchandises and goods, and in the meantime there shall be no injury or prejudice done to any person or goods on either side.
The articles with France, in addition to the provisions common in other cases, particularly stipulate, that during the term of the protection (six months) “the subjects on each side shall enjoy good and speedy justice, so that during the said space of six months they may be able to recover their goods and effects, intrusted as well to the public as to private persons.”
The article with Russia, besides stipulating an exemption from confiscation for one year, with the privilege to remove and carry away in safety, provides additionally, that the subjects of each party “shall be further permitted, either at or before their departure, to consign the effects which they shall not as yet have disposed of, as well as the debts that shall be due to them, to such persons as they shall think proper, in order to dispose of them according to their desire and for their benefit; which debts the debtors shall be obliged to pay in the same manner as if no such rupture had happened.”
All these articles are, with those of our treaties, analogous in principle, as heretofore particularly explained, to the 10th article of the treaty under discussion. That of the British treaty with France designates expressly debts due from the public as well as those due from private persons. That with Russia goes the full length of our 10th article; empowering the creditors on each side to assign the debts which they are not able to collect within the term of their residence, to whomsoever they think fit, for their own benefit, and declaring that these debts shall be paid to the assigns in the same manner as if no rupture had happened.
There is a document extant, which may fairly be supposed to express the sense of the Government of France, at the period to which it relates, of the foundation of these stipulations. It is a memorial of Mr. Bussy, minister from the court of France to that of London, for negotiating peace, dated in the year 1761, and contains these passages: “As it is impracticable for two princes who make war with each other to agree between them which is the aggressor with regard to the other,1 equity and humanity have dictated these precautions, that where an unforeseen rupture happens suddenly and without any previous declaration, foreign vessels, which, navigating under the security of peace and of treaties, happen, at the time of rupture, to be in either of the respective ports, shall have time and full liberty to withdraw themselves.
“This wise provision, so agreeable to the rules of good faith, constitutes a part of the law of nations, and the article of the treaty which sanctifies these precautions ought to be faithfully executed, notwithstanding the breach of the other articles of the treaty which is the natural consequence of the war.
“The courts of France and Great Britain used this salutary precaution in the treaties of Utrecht and Aix-la-Chapelle.”
These passages place the security stipulated in the treaties for the persons and property of the subjects of one party found in the country of another, at the beginning of a war, upon the footing of its constituting a part of the law of nations, which may be considered as a formal diplomatic recognition of the principle for which we contend. As this position was not itself in dispute between the two governments, but merely a collateral inference from it, applicable to vessels taken at sea, prior to a declaration of war, it may be regarded as a respectable testimony of the law of nations on the principal point.
If the law of nations confers this exemption from seizure upon vessels which, at the time of the rupture, happen to be in the respective parts of the belligerent parties, it is evident that it must equally extend its protection to debts contracted in a course of lawful trade. Vessels are particularly mentioned, because the discussion turned upon vessels seized at sea. But the reference to the treaties of Utrecht and Aix-la-Chapelle shows, that the minister, in his observation, had in view the whole subject-matter of the articles of those treaties which provide for the security of merchants and their effects in the event of war.
This conformity in principle, of the article under examination, with the provisions in so many treaties of our own and of other nations, taken in connection with the comment of Mr. Bussy, brings a very powerful support to the article. It is additional and full evidence that our envoy, in agreeing to it, did not go upon new and untrodden ground; that, on the contrary, he was in a beaten track; that, in pursuing the dictates of reason, and the better opinion of writers, as to the rule of the law of nations respecting the point, he was, at the same time, pursuing the examples of all the other treaties which we had ourselves made, and of many of those of other countries.
It is now incumbent upon me to perform my promise of replying to such objections to the article as may remain unanswered by the preceding remarks. It is with pleasure I note that the field is very narrow—that, indeed, there scarcely remains any thing which is not so frivolous and impotent as almost to forbid a serious replication. It will therefore be my aim to be brief.
It is said, there is only an apparent reciprocity in the article, millions being due on our side, and little or nothing on the other.
The answer to this is, that no right being relinquished on either side, no privilege granted, the stipulation amounting only to a recognition of a rule of the law of nations, to a promise to abstain from injustice and a breach of faith, there is no room for an argument about reciprocity further than to require that the promise should be mutual, as is the case. This is the only equivalent which the nature of the subject demands or permits. It would be dishonorable to accept a boon merely for an engagement to fulfil a moral obligation. Indeed, as heretofore intimated, the true rule of reciprocity in stipulations of treaties, is equal right, not equal advantage from each several stipulation.
But it has been shown, that the stipulation will be beneficial to us, by the confidence which it will give on the other side, obviating and avoiding the obstructions to trade, the injuries to and encumbrances upon credit, naturally incident to the distrust and apprehension which, after the question had been once moved, were to be expected. Here, if a compensation were required, there is one. Let me add as a truth—which, perhaps, has no exception, however uncongenial with the fashionable patriotic creed—that, in the wise order of Providence, nations, in a temporal sense, may safely trust the maxim, that the observance of justice carries with it its own and a full reward.
It is also said that, having bound ourselves by treaty, we shall hereafter lose the credit of moderation, which would attend a forbearance to exercise the right. But it having been demonstrated that no such right exists, we only renounce a claim to the negative merit of not committing injustice, and we acquire the positive praise of exhibiting a willingness to renounce explicitly a pretension which might be the instrument of oppression and fraud. It is always honorable to give proof of upright intention.
It is further said, that under the protection of this stipulation the king of Great Britain, who has already speculated in our funds (the assertors would be puzzled to bring proof of the fact), may engross the whole capital of the Bank of the United States, and thereby secure the uncontrolled direction of it; that he may hold the stock in the name of the ambassador, or of some citizen of the United States, perhaps a Senator, who, if of the virtuous twenty,1 might be proud of the honor; that thus our citizens, in time of peace, might experience the mortification of being beholden to British directors for the accommodations they might want; that, in time of war, our operations might be cramped at the pleasure of his Majesty, and according as he should see fit or not to accommodate our Government with loans; and that both in peace and war we may be reduced to the abject condition of having the whole capital of our national bank administered by his Britannic Majesty.
Shall I treat this rhapsody with seriousness or ridicule?
The capital of the Bank of the United States is ten millions of dollars, little short, at the present market price, of three millions of pounds sterling; but, from the natural operation of such a demand, in raising the price, it is not probable that much less than four millions sterling would suffice to complete the monopoly. I have never understood, that the private purse of his Britannic Majesty, if it be true, as asserted, that he has already witnessed a relish for speculation in our funds (a fact, however, from which it was natural to infer a more pacific disposition toward us), was so very ample as conveniently to spare an item of such size for a speculation across the Atlantic. But, perhaps, the national purse will be brought to his aid. As this supposes a parliamentary grant, new taxes, and new loans, it does not seem to be a very manageable thing, without disclosure of the object; and, if disclosed, so very unexampled an attempt of a foreign government would present a case completely out of the reach of all ordinary rules, justifying, by the manifest danger to us, even war and the confiscation of all that had been purchased. For let it be remembered, that the article does not protect the public property of a foreign government, prince, or state, independent of the observation just made, that such a case would be without the reach of ordinary rules. It may be added, that an attempt of this kind, from the force of the pecuniary capital of Great Britain, would, as a precedent, threaten and alarm all nations. Would consequences like these be incurred?
But let it be supposed that the inclination shall exist, and that all difficulties about funds have been surmounted—still, to effect the plan, there must be, in all the stockholders, a willingness to sell to the British king or his agents, as well as the will and means, on his part, to purchase. Here, too, some impediments might be experienced; there are persons who might choose to keep their property in the shape of bank stock, and live upon the income of it, whom price would not readily tempt to part with it. Besides, there is an additional obstacle to complete success,—the United States are themselves the proprietors of two millions of the bank stock.
Of two things, one, either the monopoly of his Britannic Majesty would be known (and it would be a pretty arduous task to keep it a secret, especially if the stock was to stand, as suggested, in the name of his ambassador), or it would be unknown and concealed under unsuspected names. In the former supposition, the observations already made recur. There would be no protection to it from the article; and the extraordinary nature of the case would warrant rant any thing. Would his Majesty or the Parliament choose to trust so large a property in so perilous a situation?
If, to avoid this, the plan should be to keep the operation unknown, the most effectual method would be to place the stock in the names of our own citizens. This, it seems, would be attended with no difficulty, since even our Senators would be ambitious of the honor; and if they should have qualms and fears, others more compliant could, no doubt, be found amongst the numerous sectaries or adherents of Great Britain in our country; probably some of the patriots would not be inexorable, if properly solicited. Or, in the last resort, persons might be sent from Great Britain to acquire naturalization for the express purpose.
In this supposition, too, the article would be at the least innocent. For its provisions are entirely foreign to the case of stock standing in the names of our own citizens. It neither enlarges nor abridges the power of the Government in this respect.
Further, how will the article work the miracle of placing the bank under the management of British directors? It gives no new rights, no new qualifications.
The constitution of the bank (section the 5th, 7th of the act of incorporation) has provided, with solicitude, these important guards against foreign or other sinister influence: 1. That none but a citizen of the United States shall be eligible as a director. 2. That none but a stockholder, actually resident within the United States, shall vote in the elections by proxy. 3. That one fourth of the directors, who are to be elected annually, must every year go out of the direction. 4. That a director may, at any time, be removed and replaced by the stockholders at a general meeting. 5. That a single share shall give one vote for directors, while any number of shares, in the same person, copartnership, or body politic, will not give more than thirty votes.
Hence it is impossible that the bank can be in the management of British directors—a British subject being incapable of being a director. It is also next to impossible that an undue British influence could operate in the choice of directors, out of the number of our own citizens. The British king, or British subjects out of the United States, could not even have a vote by attorney, in the choice. Schemes of secret monopoly could not be executed, because they would be betrayed, unless the secret was confined to a small number. A small number, no one of whom could have more than thirty votes, would be easily overruled by the more numerous proprietors of single or a small number of shares, with the addition of the votes of the United States.
But here again it is to be remembered that as to combination with our own citizens, in which they were to be ostensible for any pernicious foreign project, the article under consideration is perfectly nugatory. It can do neither good nor harm, since it merely relates, as to the exemption from confiscation and seizure on our part, to the known property of British subjects.
It follows, therefore, that the dangers portrayed to us from the speculative enterprises of his Britannic Majesty are the vagaries of an over-heated imagination, or the contrivances of a spirit of deception; and that so far as they could be supposed to have the least color, it turns upon circumstances upon which the treaty can have no influence whatever. In taking pains to expose their futility I have been principally led by the desire of making my fellow-citizens sensible, in this instance, as in others, of the extravagancies of the opposers of the treaty.
One artifice to render the article unacceptable has been to put cases of extreme misconduct, on the other side,—of flagrant violations of the law of nations, of war, of justice, and of humanity; and to ask, whether, under such circumstances, the confiscation or sequestration of debts would not be justifiable? To this the answer is, that if circumstances so extraordinary should arise, as, without the treaty, would warrant so extraordinary an act, they will equally warrant it under the treaty. For cases of this kind are exceptions to all general rules. They would excuse the violation of an express or positive, as well as of a tacit or virtual, pledge of the public faith: which describes the whole difference between the existence and non-existence of the article in question. They resemble those cases of extreme necessity (through excessive hunger, for instance), which, in the eye of the law of nature, will excuse the taking of the property of another, or those cases of extreme abuse of authority of rulers, which, amounting unequivocally to tyranny, are admitted to justify forcible resistance to the established authorities. Constitutions of government, laws, treaties, all give way to extremities of such a description: the point of obligation is to distinguish them with sincerity, and not to indulge our passions and interests in substituting pretended for real losses.
A writer, who disgraces the name of Cicero by adopting it, makes a curious remark by way of objection. He affirms that the article is nugatory, because a treaty is dissolved by a state of war, in which state the provision is designed to operate. If this be true, the article is at least harmless, and the trouble of painting it in such terrific colors might have been spared. But it is not true. Reason, writers, the practice of all nations, accord in this position, that those stipulations which contemplate the state of war—in other words, which are designed to operate in case of war, preserve their force and obligation when war takes place.1 To what end else all the stipulations which have been cited from so many treaties?2
Previous to a conclusion I shall observe, barely with a view to accuracy, that the article leaves unprotected all vessels, goods, and merchandises—every species of property, indeed, except debts between individuals and the property of individuals in the public funds and in public and private banks. With this exception, whatever before may have been liable to confiscation or sequestration still remains so, notwithstanding any thing contained in this article.
To overrate the value and force of our own arguments is a natural foible of self-love; to be convinced without convincing others, is no uncommon fate of a writer or speaker; but I am more than ordinarily mistaken if every mind open to conviction will not have been satisfied by what has been offered—that the 10th article of the treaty lately negotiated with Great Britain, does nothing but confirm, by a positive agreement, a rule of the law of nations, indicated by reason, supported by the better opinion of writers, ratified by modern usage, dictated by justice and good faith, recognized by formal acts and declarations of different nations, witnessed by diplomatic testimony, sanctioned by our treaties with other countries, and by treaties between other countries, and conformable with sound policy and the true interests of the United States.
The discussion has been drawn out to so great a length, because the objections to this article are amongst those which have been urged with the greatest warmth and emphasis against the treaty, and its vindication from them, if satisfactory, must go far toward securing to it the public suffrage. Citizens of America, it is for you to perform your part of the task; it is for you to weigh with candor the arguments which have been submitted to your judgments; to consult, without bias, the integrity of your hearts; to exile prejudice, and to immolate on the altar of truth the artifices of cabal and falsehood! There can then be no danger that patriotism will have to lament, or national honor to blush, at the sentence you shall pronounce.
The articles which adjust the matters of controversy between the two countries, all those which are permanent, have now been reviewed. Let me appeal to the consciences of those who have accompanied me in the review; if these articles were all that composed the treaty, would it be the better that they should exist—or that all the sources of rupture and war with Great Britain should have survived the negotiation to extinguish them, and should still actually subsist in full vigor? If every enlightened and honest man must prefer the former—then let me make another observation, and put another question. The remaining articles of the treaty, which constitute its commercial part, expire by their own limitation at the end of twelve years. It is in the power of either party, consistently with the instrument, to terminate them at the end of the expiration of two years after the present war between France and Great Britain.
Is it at all probable that they can contain any thing so injurious, considering the short duration which may be given to them, as to counterbalance the important consideration of preserving peace to this young country; as to warrant the excessive clamors which have been raised; as to authorize the horrid calumnies which are vented; and to justify the systematic efforts which are in operation to convulse our country and to hazard even civil warr?1
The term “debts” is only expressed in the Prussian treaty, but there are in the other treaties, terms which include debts, and this is the manifest spirit and intent of all.
Thus we find it the sentiment of this minister, that it is impossible for two princes who make war with each other, to agree which is the aggressor with regard to the other. And yet Mr. Jay was to extort from Great Britain an acknowledgment, that she was the aggressor with regard to us, and was guilty of pusillanimity in waiving the question.
Those who advised to a ratification of the treaty.
Vatel, B. III., ch. x.
This writer is as profligate as he is absurd. Besides imputing to Camillus, in general terms, a number of things of which he never dreamt, he has the effrontery to forge, as a literal quotation from him (calling it his own language and designating it by inverted commas), a passage respecting the impressing of seamen, which certainly not in terms, nor even in substance, upon fair construction, is to be found in any thing he has written. Not having all the numbers of Cicero at hand, I may mistake, in attributing to him the principal sentiment, which is from memory, but I have under my eye the number which witnesses his forgery.
In applying the character of dishonesty and turpitude to the principle of confiscation or sequestration, I am far from intending to brand as dishonest men all those whose opinions favor it. I know there are some ardent spirits chargeable with the error, of whose integrity I think well.