Front Page Titles (by Subject) no . XXIII 1 - The Works of Alexander Hamilton, (Federal Edition), vol. 5
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no . XXIII 1 - 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 preceding articles having adjusted those controversies which threatened an open rupture between the two countries, it remained to form such dispositions relative to the intercourse, commerce, and navigation of the parties as should appear most likely to preserve peace, and promote their mutual advantage.
Those who have considered with attention the interests of commerce will agree in the opinion, that its utility, as well as general prosperity, would be most effectually advanced by a total abolition of the restraints and regulations with which the jealousies and rival policy of nations have embarrassed it. But though we are not chargeable with having contributed to the establishment of these errors, so discouraging to the industry and perplexing in the intercourse of nations, we found them so deeply rooted and so extensively prevalent, that our voice and opinions would have been little regarded, had we expressed a desire of a system more liberal and advantageous to all.
The rights of commerce among nations between whom exist no treaties, are imperfect.
“The law of nature,” says Vatel (B. I., s. 89), “gives to no person whatever the least kind of right to sell what belongs to him to another who does not want to buy it; nor has any nation that of selling its commodities or merchandise to a people who are unwilling to have them; every man and every nation being perfectly at liberty to buy a thing that is to be sold, or not to buy it, and to buy it of one rather than of another. Every State has constantly,” continues the same author, “a right to prohibit the entrance of foreign merchandise, and the people who are interested in this prohibition have no right to complain of it.” States by convention may turn these imperfect into perfect rights, and thus a nation, not having naturally a perfect right to carry on commerce with another, may acquire it by treaty. A simple permission to trade with a nation gives no perfect right to that trade; it may be carried on so long as permitted, but the nation granting such permission is under no obligation to continue it. A perfect right in one nation to carry on commerce and trade with another nation can alone be procured by treaty.
From the precarious nature of trade between nations, as well as from the desire of obtaining special advantages and preferences in carrying it on, originated the earliest conventions on the subject of commerce. The first commercial treaty that placed the parties on a more secure and better footing in their dealings with each other than existed in their respective intercourse with other nations, inspired others with a desire to establish, by similar treaties, an equally advantageous arrangement. Thus one treaty was followed by another, until, as was the case when the United States became an independent power, all nations had entered into extensive and complicated stipulations, concerning their navigation, manufactures, and commerce.
This being the actual condition of the commercial world when we arrived at our station in it, the like inducements to render certain that which by the law of nations was precarious, and to participate in the advantages secured by national agreements, prompted our Government to propose to all, and to conclude with several, of the European nations, treaties of commerce.
Immediately after the conclusion of the war, Congress appointed Mr. Adams, Doctor Franklin, and Mr. Jefferson, joint commissioners, to propose and conclude commercial treaties with the different nations of Europe. This commission was opened at Paris, and overtures were made to the different powers (including Great Britain) through their ministers residing at Paris. The basis of these numerous treaties, which Congress were desirous to form, was, that the parties should respectively enjoy the rights of the most favored nations. Various answers were given by the foreign ministers, in behalf of their several nations. But the treaty with Prussia was the only one concluded, of the very great number proposed by the American commissioners. Mr. Adams, in 1785, was removed to London, Dr. Franklin soon after returned to America, and Mr. Jefferson succeeded him as minister at Paris. Thus failed the project of forming commercial treaties with almost every power in Europe. Treaties with Russia, Denmark, Great Britain, Spain, and Portugal would have been of importance; but the scheme of extending treaties of commerce to all the minor powers of Europe, not omitting his Holiness the Pope, was, it must be acknowledged, somewhat chimerical, and could not fail to have cast an air of ridicule on the commissions that with great solemnity were opened at Paris.
The imbecility of our National Government, under the articles of confederation, was understood abroad as well as at home; and the opinions of characters in England, most inclined to favor an extensive commercial connection between the two countries, were understood to have been opposed to the formation of a commercial treaty with us, since, from the defects of our articles of union, we were supposed to be destitute of the power requisite to enforce the execution of the stipulations that such a treaty might contain.
We must all remember the various and ill-digested laws for the regulation of commerce, which were adopted by the several States as substitutes for those commercial treaties, in the conclusion of which our commissioners had been disappointed; the embarrassments which proceeded from this source, joined to those felt from the derangement of the national treasury, were the immediate cause which assembled the convention at Philadelphia in 1787. The result of this convention was the adoption of the present Federal Constitution, the legislative and executive departments of which each possess a power to regulate foreign commerce: the former by enacting laws for that purpose; the latter, by forming commercial treaties with foreign nations.
The opinion heretofore entertained by our Government, respecting the utility of commercial treaties, is not equivocal; and it is probable that they will, in future, deem it expedient to adjust their foreign trade by treaty, in preference to legislative provisions, as far as it shall be found practicable, on terms of reasonable advantage. In the formation of the regulations that are legislative, being ex parte, the interest of those who establish them is seen in its strongest light, while that of the other side is rarely allowed its just weight. Pride and passion too frequently add their influence to carry these regulations beyond the limits of moderation; restraints and exclusions on one side beget restraints and exclusions on the other; and these retaliatory laws lead to, and often terminate in, open war: while, on the other hand, by adjusting the commercial intercourse of nations by treaty, the pretensions of the parties are candidly examined, and the result of the discussion, it is fair to presume, as well from the experience of individuals in private affairs, as from that of nations in their more important and complicated relations, establishes those regulations which are best suited to the interests of the parties, and which alone afford that stability and confidence so essential to the success of commercial enterprise.
That our present government have thought a commercial treaty with Great Britain would be advantageous, is evident, not alone from the special and distinct commission given to Mr. Jay to form one, but likewise from the letter of Mr. Jefferson to Mr. Hammond, of the 29th of November, 1791, which was the first letter to that minister after his arrival, in which the Executive says: “With respect to the commerce of the two countries, we have supposed that we saw, in several instances, regulations on the part of your Government which, if reciprocally adopted, would materially injure the interests of both nations; on this subject, too, I must beg the favor of you to say, whether you are authorized to conclude or to negotiate arrangements with us which may fix the commerce between the two countries on principles of reciprocal advantage.”
Further, from the first session of Congress, to that during which Mr. Jay’s appointment took place, efforts were made to discriminate, in our revenue and commercial laws, between those nations with whom we had, and those with whom we had not, commercial treaties—the avowed object of which discrimination was, to place the latter nations on a less advantageous commercial footing than the former, in order to induce them likewise to form commercial treaties with us; and it cannot be forgotten by those who affect to suppose that it was not expected that a treaty of commerce would be formed by Mr. Jay, that Mr. Madison’s commercial resolutions which were under consideration at the time of Mr. Jay’s appointment, grew out of, and were built upon, a clause of Mr. Jefferson’s report of the 26th December, 1793, which asserts that Great Britain discovered no disposition to enter into a commercial treaty with us. The report alluded to is explicit in declaring a preference of friendly arrangements, by treaties of commerce, to regulations by the acts of our Legislature, and authorizes the inference, under which the commercial resolutions were brought forward, that the latter should be resorted to only when the former cannot be effected.
The power of the Executive to form commercial treaties, and the objection against the commercial articles before us, as an unconstitutional interference with the legislative powers of Congress, will, in the sequel, be distinctly examined, together with other objections on the point of constitutionality.
Against the policy of regulating commerce by treaty, rather than by acts of the Legislature, it is said that the legislative acts can, but that a treaty cannot, be repealed. This remark is true, and of weight against the formation of commercial treaties which are to be of long duration, or like our commercial treaty with France, which is permanent. For, as we are yearly advancing in agriculture, manufactories, commerce, navigation, and strength, our treaties of commerce, especially such as, by particular stipulations, shall give to the parties other rights than those of the most favored nation, ought to be of short duration, that, like temporary laws, they may, at an early day, expire by their own limitation, leaving the interests of the parties to a new adjustment, founded on equity and mutual convenience.
Of this description are the commercial articles of the treaty with Great Britain; for none of them can continue in force more than twelve years; and they may all expire, if either party shall choose it, at the end of two years after the peace between France and Great Britain.
Did the limits assigned to this defence admit a review of the commercial and maritime codes of the principal European nations, we should discover one prevailing feature to characterize them all: we should see the general or common interest of nations, everywhere, placed in a subordinate rank, and their separate advantage adopted, as the end to be attained by their respective laws. Hence, one nation has enacted laws to protect their manufactures, another to encourage and extend their navigation, a third to monopolize some important branch of trade, and all have contributed to the creation of that complicated system of regulations and restraints which we see established throughout the commercial world.
One branch, and a principal one of this system, that which establishes the connection between the several European nations and their colonies, merits our particular attention. An exact knowledge of this connection would assist us in forming a just estimate of the difficulties that stand in opposition to our claim of free and full participation in the colony trade of Great Britain.
Unlike the plan of colonization adopted by the ancient governments, who, from the crowded population of their cities, sent forth and established beneath their auspices new and independent republics, the colonies of modern times have been planted with entirely different views; retained in a state of dependence on the parent country, their connection has been made subservient to that spirit of monopoly which has shown itself among all the commercial powers. Every European nation has its colonies, and for that reason prohibited all foreigners from trading to them.
Important political events arise and pass in such quick succession, that we are liable to forget facts and opinions familiar to us in periods within the ordinary powers of recollection. No subject was more critically examined, or generally understood before the American Revolution, than that which respected the connection between Great Britain and her colonies; all were then agreed, that the colony trade and navigation were subject to the restraints and regulations of the parent state. It was not against this dependence and commercial monopoly that the colonies complained! They were willing to submit to them. It was the unjust attempt to tax them, to raise a revenue from them, without their consent, which combined that firm and spirited opposition which effected a division of the empire. Thus the Congress of 1775, in their last address to the inhabitants of Great Britain, say: “We cheerfully consent to such acts of the British Parliament as shall be restrained to the regulations of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefit of its respective members; excluding every idea of taxation, internal or external, for the purpose of raising a revenue on the subjects in America without their consent.” The “colonial codes” of other nations are marked with the same spirit of monopoly. Thus Portugal shuts out all foreigners from the Brazils as well as from her Asiatic possessions; Spain, from South America and her West India islands; France excludes all foreigners from her Asiatic dominions, and limits within narrow bounds their intercourse with her colonies in the West Indies. Holland guards, with the miser’s vigilance, the access to her Spice islands, and imitates, though with somewhat less rigor, the policy of the other powers in her West India possessions. And England, by her act of navigation, which has been in operation for more than a century, asserted, and hitherto has uniformly adhered to, the like system of exclusion and monopoly.
Notwithstanding the intimate alliance, the family compact, between France and Spain, the former has not been able to procure admission into the Spanish colonial territories, where she might have acquired immense wealth by the sale of her manufactures, her wines, and her brandies. Holland, though a part of the Spanish monarchy long after the discovery of America and the establishment of the Spanish power in that quarter of the world, was unable, after her separation from Spain, and the acknowledgment of her independence, even in the zenith of her splendid power upon the ocean, to obtain by force or treaty a share in the Spanish colony trade to South America. The rival wars between the English and the Dutch toward the close of the last century, which originated in commercial competition and jealousy, were successively terminated without England yielding the smallest departure from the exclusive commercial system contained in her act of navigation.
Great Britain, though maintaining her exclusive laws against other nations at different periods, has shown the strongest desire to share in the rich trade of Spain with her colonies. The war that commenced in 1739 was occasioned by the firm, but irregular, opposition of Spain to the contraband efforts of British traders.
The impediments Great Britain has uniformly met in her attempts to extend her settlement in the Bay of Honduras, to form establishments at Falkland’s Island, and more recently at Nootka Sound, afford additional proofs of the fixed policy of Spain on the subject of her colony trade.
Portugal, whose political safety more than once has appeared to depend upon the efficacious aid of Great Britain, does not yield to her ally any portion of her valuable colonial commerce.
So uniform and persevering has been the practice of nations on this point, that in the latest treaties of commerce between France and Spain, between each of these powers and Great Britain, between Great Britain, Sweden, Denmark, Holland, and Portugal, we do not discover that any one of these powers has consented to admit the others to a participation in the trade and navigation to their respective colonies—the Assiento contract for the supply of negroes to the Spanish colonies, which has been made by Spain with several powers, is an unimportant and solitary exception to this rule.
Montesquieu calls this law appropriating the colony commerce to the benefit of the parent state, “A fundamental law of Europe.” “It has been established,” says this enlightened Frenchman, “that the metropolis or mother country alone shall trade in the colonies, and that for very good reasons; because the design of the settlement was the extension of commerce, not the foundation of a city or new empire. Thus it is still a fundamental law of Europe, that all commerce with a foreign colony shall be regarded as a mere monopoly, punishable by the laws of the country; and in this case we are not to be directed by the laws and precedents of the ancients, which are not at all applicable.”
“It is likewise acknowledged, that a commerce established between the mother countries does not include a permission to trade in the colonies; for these always continue in a state of prohibition.” [Montesquieu, Liv. XXI., Chap. XVII.]
This subject is of too great importance not to be pursued a little further. Principles connected with it, and such as will continue to operate whether we sanction or condemn them, remain to be disclosed. It is true that the principal end of the dominion that the European powers have held over their colonies, has been the monopoly of their commerce, “since in their exclusive trade (as has been observed by a sensible writer on the subject) consist the principal advantages of colonies, which afford neither revenue nor force for the defence of the parent country”; but this is not the sole object. Some nations, and among them Great Britain, have viewed the exclusive navigation and trade to their colonies, in the light in which they have seen their coasting trade and fisheries,—as a nursery for that body of seamen whom they have considered not only as necessary to the prosperity and protection of commerce, but as essential to the defence and safety of the state.
The situation of Great Britain in this respect is peculiar. When compared with several of the neighboring powers, her numbers and military forces are manifestly inferior. The armies kept on foot in peace, as well as those brought into the field in war, by the great nations in Europe, are so decidedly superior to those of Great Britain, that were she a continental power, her rivals would easily be an overmatch for her. The ocean is her fortification, and her seamen alone are the soldiers who can defend it. When Great Britain shall become an inferior maritime power, when her enemy shall acquire a decisive superiority on the sea, what will prevent a repetition of those conquests the examples of which we find in her early history? No subject has been more profoundly thought on than this has been in Great Britain. Her policy, from the date of her navigation act, has been guided by these considerations; that her national safety depends on her wooden walls, is a maxim as sacred in Britain, as it once was in Athens. Her statesmen, her merchants, her manufacturers, and her yeomanry comprehend and believe it.
Is it then surprising, that we see her so anxious to encourage and extend her navigation, as to exclude, as far as practicable, foreigners from any share of her fisheries, her coasting, and her colony trade? Does not candor require us to admit, since her national defence rests upon her navy, which again depends on her seamen, which an extensive navigation can alone supply, that Great Britain, having more to risk, is among the last powers likely to break in upon or materially to relinquish that system of exclusive colony trade, that has so long and uniformly prevailed among the great colonizing powers?
America has her opinions, perhaps prejudices, on the subject of commerce: she is, and, at least until she shall become a naval power, will continue to be, without colonies. But her laws manifest a similar spirit with those of other nations, in the regulations which they prescribe for the government of her fisheries and her coasting trade. The object of these laws is an exclusion of foreign competition, in order to encourage and increase her own navigation and seamen; from which resources, not only in wars between other nations, but likewise in those in which she may be engaged, important commercial and national advantages may be expected. These opinions deserve attention; they have already had and will continue to have a suitable influence with her Government. But we should remember, that other nations have likewise their opinions and prejudices on these subjects; opinions and prejudices not the less strong or deeply rooted for having been transmitted to them through a series of past generations. Thus in England, not only the public opinion, but what is more unconquerable, the private interests of many individuals will oppose every change in the existing laws that may be supposed likely to diminish their navigation, to limit their trade, or in any measure to affect disadvantageously their established system of national commerce.
It cannot have escaped notice, that we have among us characters who are unwilling to see stated the impediments that stand in the way of the commercial arrangements which, they contend, should be conceded to us by foreign nations, and who are ready to charge those who faithfully expose them, with an inclination to excuse or vindicate the unreasonable denials of our commercial rivals, and with a desire to yield up the just pretensions of our country. The article seems too gross to be dangerous with a sensible people, but the public should notwithstanding be on their guard against it. They should dispassionately examine the real difficulties to be encountered in the formation of our commercial treaties. They should inquire and ascertain how far other nations, seeking the same advantages, have been able to succeed. They should further compare the treaty in question with those we have made before with other nations. The result of such investigation, so far from warranting the condemnation of the commercial articles of the treaty before us, it is believed, would demonstrate that these articles make a wider breach in the British commercial system than has ever before been made; that on their commercial dispositions they are preferable to any treaty we have before concluded; and that there is rational ground to believe that the treaty will have a tendency friendly to the agriculture, the commerce, and the navigation of our country.
This and the seven succeeding numbers are from the pen of Rufus King, excepting the parts within brackets, which are in Hamilton’s hand.—Ed.