THE CONNOISSEUR’S FEDERAL EDITION OF THE WORKS OF ALEXANDER HAMILTON IS LIMITED TO FOUR HUNDRED SIGNED AND NUMBERED SETS OF WHICH THIS IS NUMBER 261
G.P. Putnam's Sons
foreign relations—camillus (Continued)
foreign relations—camillus (Continued)
However uniform may have been the law of Europe in relation to the colonial establishments, no pains have been spared to create an opinion that France has been guided by a more liberal policy than the other colonizing powers, and that the regulations of her colony trade were essentially dissimilar from theirs; moreover, that her disinterestedness was so great, that she not long since proposed to our Government to establish, by treaty, a trade between us and her West India colonies equally free with that which prevails in her own intercourse with them. The object of these attempts is readily perceived.
As there was no probability that Great Britain would consent to our trading with her West India colonies on the same terms as she herself does; as it was foreseen that limitations and conditions would accompany any agreement that should be made on this subject; to extol the liberty of France, and exclaim against the monopolizing views of Great Britain, were deemed suitable means to excite a prejudice against the expected adjustment of the commercial intercourse between us and the British West India colonies.
A comparison of the footing by which our trade stood with the French and British West India colonies, after the completion of our Revolution, and before the present war in Europe, with a concise exposition of the real views of France on the subject of a new commercial treaty, will best demonstrate the want of candor and patriotism in those Americans who have submitted to become agents in propagating these errors.
France, like England, has endeavored to secure the greatest possible portion of advantage to herself, by her colonial laws, and the concessions yielded to foreigners have been only such deviations from an entire monopoly as her own interest has rendered indispensable. France, in imitation of the English navigation law, as early as 1727, established an ordinance, confirming to the mother country the monopoly of the trade to her colonies, and excluding thereby all foreigners. Experience proved the necessity of moderating the rigor of their ordinance, and relaxations in favor of a limited foreign intercourse existed at the time when our commercial treaty with France was concluded, by the thirtieth article of which it is agreed that France will continue to the citizens of the United States the free ports, which have been and are open in her West India islands, to be enjoyed agreeable to the regulations which relate to them. A system of regulations relative to the trade of foreigners with the French islands was promulgated in 1784. This ordinance established one free port at St. Lucie, another at Martinique, another at Guadaloupe, another at Tobago, and three others at St. Domingo, to which foreign vessels of the burthen of sixty tons and upward might carry for sale woods of all sorts, pit coal, live animals, fatted beef, salted fish, rice, Indian corn, vegetables, green hides, peltry, turpentine, and tar. This was followed by the arrêts of September, 1785, which by imposing heavy duties on foreign salted fish, and establishing large bounties on those of the national or French fishery, materially affected the foreign commerce with the French islands in this important article of supply and consumption.
Such were the duties on the foreign and the premiums on the national fish, that together they would have been equivalent to a prohibition of the former, had the national fishery been able to supply the consumption.
In return for these articles, which alone were permitted to be imported by foreigners into the French islands, and which it will be observed excluded some of our principal staples, especially flour, they were allowed to purchase and bring away of the productions of the islands only molasses and rum.
All cotton, coffee, sugar, and other productions (rum and molasses excepted) were prohibited; and we could, except occasionally by local relaxations of the general law, rightfully obtain none of them from the French West India islands. This was the footing of our trade under our treaty and the standing edict which preceded the French Revolution, and even this was liable to still further limitations, whenever France should think proper to impose them; the treaty securing only a right to as free a commerce as France should grant to other foreign nations.
Great Britain has permitted the importation into her West India colonies of all the foreign articles allowed by France to be imported into her islands (salted fish and salted beef excepted), and she moreover permitted the importation of foreign tobacco, flour, meal, biscuit, wheat, and various other grains which France prohibited. In return for these commodities, Great Britain permitted the exportation from her islands to our country, of rum and molasses, and moreover of sugar, coffee, cocoa, ginger, and pimento, together with such other articles as are allowed to be carried from their islands to any other foreign country.
Great Britain prohibited the importation and exportation of most of these articles to and from all foreign nations, except the United States; France permitted the intercourse with her colonies, under the same limitations to us in common with all other foreign nations.
The articles received from us by Great Britain, for the supply of her West India islands, exceeded in variety those received from us by France for the supply of her islands; the British West Indies were, therefore, in the ordinary and established course, more extensive customers to us than the French West Indies. Again, the articles which we received from the British West Indies, and which we were prohibited from receiving from the French West Indies, were among the most valuable of their productions, and, from the force of habit, some of them are included in the catalogue of articles of the first necessity in our consumption. In point of supply, therefore, the British were better furnishers, their colonial laws being much less restrictive than those of France.
Though the regulations of the British West India trade were more favorable to agriculture than those of France, and though the articles with which we were supplied from the British islands were more numerous and valuable than those obtained from the islands of France, the colony system of the latter was preferable to that of the former in relation to our navigation. France permitted our vessels of and above sixty tons burthen to carry and bring away the articles not prohibited in the foreign trade with her islands, while Great Britain confined the trade to her own vessels and excluded those of all foreign nations.
Difference of situation, and not of principle, produced this variety or distinction in the colony system of the two nations. France being able from her resources to supply most of the articles requisite for the consumption of her West Indies, and from her great population, having a proportionate demand for the productions of her islands, she has been carefully restrictive in the trade between her colonies and foreign countries as to the articles of import and export.
All the productions of her islands must go to the mother country, except rum and molasses; these articles were not confined to France, because they would have directly interfered with the valuable manufacture of her brandies. On the other hand, Great Britain, being less able from her internal resources to supply the articles necessary for the consumption of her West Indies, and her population or home demand not requiring the whole productions of her islands, she has been more liberal in the trade allowed to be carried on between her colonies and foreign countries as to the articles of import and export. But her navigation being adequate to the whole trade of all her dominions, while that of France required the addition of foreign bottoms, Great Britain has excluded entirely from her colony trade the foreign vessels of all nations, while France has admitted them to share in the foreign trade permitted to her West India islands.
Both France and Great Britain relax their colonial laws in times of occasional scarcity, and when they are engaged in war; during which, the intercourse with their West India possessions is laid more open to foreigners. The catalogue of supplies is sometimes enlarged, and Great Britain, as well as France, during these relaxations, permits American vessels to resort to, and engage in the commerce of, their islands.
It is, notwithstanding, from the permanent laws alone of these nations, that we are able to infer their views in relation to their colony trade; the exceptions and deviations that become necessary, by reason of accidental scarcity or the embarrassments of war, serve only to explain more clearly the principles of the permanent system.
The result of this comparison affords no support for the assertion that France has been less exclusive or more liberal in her colony system, than Great Britain. Both these nations have in the establishment of their colonial laws alike disregarded the interests of foreign nations, and have been equally under the control of the principles of self-interest, which ever have and ever will govern the affairs of nations.
Nothing can be more erroneous, than the opinion that any nation is likely to yield up its own interest, in order, gratuitously, to advance that of another. Yet we frequently hear declarations of this kind, and too many honest citizens have surrendered themselves to this delusion; time and experience will cure us of this folly.
Equal artifice has been practised, and no less credulity displayed, on the subject of a new treaty of commerce, which, it is boldly asserted, France from the most disinterested motives has offered to us. It should be recollected that France already has a treaty of commerce with us, a treaty that is not limited to two years, nor twelve years, but one that is to endure forever. This treaty is as favorable to France as she can desire, or we in our utmost fondness be disposed to make. It secures to her our acquiescence in an exclusion from her Asiatic dominions, and in fresh regulations as her interest shall dictate relative to our intercourse with her West India possessions; it excludes us from her fisheries on the Banks of Newfoundland, which she was unwilling to share with us, and it gives to her every commercial favor or privilege which by treaty we may yield to any other nation, freely when freely granted, and when otherwise on yielding the same equivalent; her productions, her manufactures, her merchandises, and her ships may come into all our ports to which any other foreign productions, manufactures, merchandises, or ships may come; they are severally to pay only the lowest duties paid by any other nation, and no other nation in its intercourse and trade with us is, in any instance, to have a preference over her. A variety of other regulations are inserted in this treaty useful to France and not particularly disserviceable to us.
This treaty has been religiously observed and executed on our part; France has repeatedly violated it in the article which makes enemy’s goods free in neutral bottoms, while it is understood she has faithfully observed it in the article that makes neutral goods lawful prize when found in enemy bottoms.
If it be true that nations, in justice to themselves, are bound to decline the abandonment of their own interest, for the purpose of promoting, at their own expense and detriment, the interest of others, ought we too readily to credit an opposite opinion? Ought we not to expect full proof of the sincerity of those declarations that are intended to produce a belief of this disinterested and self-denying course? Ought not the very proposal of such a measure, from its extraordinary nature, inspire circumspection, and put a prudent nation on its guard? If, moreover, the overture should occur at a moment when we have ascertained that those who make it desire, and are, in fact, pursuing objects incompatible with the disinterestedness which it avows; if while it is said we wish that you should remain in peace with those who hold this language, neglect no means to engage our citizens to violate their neutral duties and thereby expose their country to war; if when we are told “we rejoice in the freedom of a sister republic,” all the arts of intrigue, so much more dangerous by our unsuspicious temper, and unlimited affection for those who practise them, were employed to alienate our attachment from our own Government, and to throw us into a state of anarchy; if when the fascinating proposal of opening new channels of commerce, which were to give unbounded riches to our merchants, was received with more caution than was desired, we are told that in case of refusal, or evasion (mark the generosity), France would repeal her existing laws which had been dictated by an attachment to the Americans, what must have been our infatuation, what the measure of our folly, had we given implicit credit to words so much at variance with cotemporary actions? But it is asked, do not the letters of Mr. Genet to Mr. Jefferson, which have been published, prove that France desired and offered to enter into a new, disinterested, and liberal treaty of commerce with us? The question shall be fairly examined.
There are two letters from Mr. Genet on this subject. Immediately after his arrival at Philadelphia, in a letter to Mr. Jefferson of the 23d May, 1793, he says: “The French republic has given it in charge to me to propose to your Government to consecrate by a true family compact, by a national covenant, the liberal and fraternal basis on which it wishes to establish the commercial and political system of two people whose interests are inseparably connected.”
If the object of this proposal was a revision of our commercial treaty, in order to render the intercourse between us more free and advantageous, this minister was singularly unfortunate in his expressions. He might have employed the fine phrase of consecrating by a true family compact, by a national covenant, the liberal and fraternal basis on which it was wished to establish the commercial system of the two countries, and have been intelligible; but when he tells us, that he is instructed to open a negotiation with our Government, for the purpose of establishing the commercial and political system of the two countries, what are we to understand? That trade and its regulations are alone in view? Or that a family compact establishing the political as well as the commercial system of the two nations, must include likewise the league, or treaty of alliance, whereby the strength and wealth of the two nations should be closely united in the prosecution of a common object?
This ambiguous overture, if its meaning is not too plain to allow the epithet, was received in the most friendly manner by our Government, and on the suggestion that the Senate are united with the President in making treaties, it was understood between Mr. Jefferson and Mr. Genet, that the subject should be deferred till the meeting of Congress.
Before that period, however, Mr. Genet, in a letter of the 30th of September, 1793, renews the proposal to open the negotiation relative to the proposed family compact between us and France; and proves to us that our benefit was its principal exclusive object, by affectionately intimating in the conclusion of his letter, that he is further instructed to tell us, in case of refusal or evasion on our part to enter into this family agreement, that France will repeal the laws dictated by the attachment of the French for the Americans.
Had it before been doubted whether political engagements relative to war were intended to be connected with the proposed treaty, these doubts must have disappeared on the receipt of this second letter from Mr. Genet; the intimation that the laws of France which operated favorably to our trade with their dominions would be repealed, in case we refused or evaded the conclusion of a new treaty, cannot be reconciled with the belief, that this treaty was sought for from motives purely commercial, or solely to enlarge and add prosperity to our trade.
Mr. Genet at this time had so outraged our Government as to have compelled them to request his recall; he must, therefore, have been convinced, that no conference would be held with him except on points of urgent importance, and such as would not admit of delay. He was therefore answered by Mr. Jefferson on the 5th of November, that his letter had been laid before the President, and would be considered with all the respect and interest that its objects necessarily required; and in Mr. Jefferson’s letter to Mr. Morris of the 23d of August, we are informed that our Government were desirous to go into a commercial negotiation with France, and, therefore, requested that the powers given to Mr. Genet on that subject should be renewed to his successor. It has not appeared that this was ever done. His immediate successor, Mr. Fauchet, it is believed, gave no evidence of his having any powers relative to a commercial treaty; and if reports, which arrived with the present minister, having great marks of authenticity, may be credited, he has power only to digest the articles of such a treaty, not to conclude one.
Notwithstanding the internal evidence contained in the two letters of Mr. Genet was sufficient to have satisfied a sensible people, that something beyond a commercial treaty was connected with the proffered negotiation, and though this conjecture acquired strength from the cautious procedure of our Government on the occasion, yet these letters, and that procedure, have been pressed upon the public as conclusive evidence that France had offered, and our Government refused, to enter into a new treaty of commerce, that would have been highly beneficial to our trade and navigation.
The refutation of this opinion, so injurious to a reasonable and salutary confidence in the integrity and patriotism of our own executive Government, and which the agents of its propagation had spread far and wide, might have been more difficult, had not the minister of France, for the purpose of justifying his own conduct, published his hitherto secret instructions.
By these instructions it appears, that the essential object of this proffered negotiation, was to engage the United States to make common cause with France in the war then foreseen, and which soon broke out with Spain and England; that the advantages to be yielded by a new commercial treaty were to be purchased by our uniting with France in extending the empire of liberty, in breaking up the colonial and monopolizing systems of all nations, and finally in the emancipation of the New World. This was laying out a large and difficult work, in the accomplishment whereof arduous and numerous perils must be met, to encounter which we were called by no obligation to others, to avoid which we were admonished by all the duties which require us to cherish and preserve our own unparalleled freedom, prosperity, and happiness.
However contradictory this extraordinary project may appear to the friendly communications that had been made by the French Government to ours; however repugnant to the soothing declarations pronounced by Mr. Genet, of the fraternal and generous sentiments of his country toward ours, and of the republican frankness and sincerity that should characterize his deportment, let the following extracts from his instructions published by himself in December, 1793, be consulted in confirmation of this statement, and as an authentic exposition of the genuine views of the French executive council in the mission of Mr. Genet—viz.:
“The executive council have examined the instructions given to the predecessors of the Citizen Genet in America, and they have seen with indignation, that while the good people of America have expressed to us their gratitude in the most lively manner, and given us every testimony of their friendship, both Vergennes and Montmorin have thought that the interests of France required, that the United States should not obtain that political order and consistency of which they were capable, because they would thereby quickly attain a strength which they might probably be inclined to abuse. These ministers, therefore, enjoined it upon the representatives of Louis XVI. in America, to hold a passive conduct, and speak only of the personal vows of the king for the prosperity of the United States. The same machiavelism directed the operations of the War of Independence; the same duplicity presided in the negotiations of peace. The deputies of Congress had expressed a desire that the cabinet of Versailles should favor the conquests of the Floridas, of Canada, of Nova Scotia; but Louis and his ministers constantly refused their countenance, regarding the possession of those countries by Spain and England, as useful sources of disquietude and anxiety to the Americans.”
After declaring that the executive council proposes to itself a different course, and that it approves of the overtures, which had been made as well by General Washington, as by Mr. Jefferson, to Mr. Ternant, relative to the means of renewing and consolidating the commercial regulations between the two countries, they proceed to declare further, “that they are inclined to extend the latitude of the proposed commercial treaty (observe, the first proposal of a new commercial treaty came from us, and not from France) by converting it into a national compact, whereby the two people should combine their commercial with their political interests, and should establish an intimate concert to befriend, under all circumstances, the extension of the empire of liberty, to guarantee the sovereignty of the people, and to punish the nations who shall continue to adhere to a colonial system, and an exclusive commerce, by declaring that the vessels of such nations should not be received into the ports of the two contracting parties. This agreement, which the French people will support with all the energy that distinguishes them, and of which they have given so many proofs, will quickly contribute to the emancipation of the New World. However vast this project may appear, it will be easily accomplished, if the Americans will concur in it, and in order to convince them of this, no pains must be spared by the Citizen Genet. For, independent of the benefits that humanity will draw from the success of this negotiation, France, at this moment, has a particular interest that requires us to be prepared to act with efficacy against England and Spain, if, as every circumstance announces, these, in hatred of our principles, shall make war upon us.” In this state of things, we ought “to employ every means to reanimate the zeal of the Americans, who are also interested that we should disappoint the liberticide designs of George the Third, of which they likewise may possibly be an object.” “The executive council has reason to believe that these reflections, joined to the great commercial advantages which we are disposed to grant to the United States, will decide their Government to agree to all that the Citizen Genet shall propose to them on our part; but as from the rumors respecting our interior, our finances, and our marine, the American administration may observe a wavering timid conduct! The executive council, in expectation that the American Government will finally decide to make common cause with us, charges the Citizen Genet to take such steps as shall be most likely to serve the cause of liberty and the freedom of the people.”
In a supplemental instruction, the executive council say: “As soon as the negotiation concerning a new treaty of commerce shall be practicable, Citizen Genet must not omit to stipulate a positive reciprocity of the exemption from the American tonnage duty.” The mutual naturalization of French and American citizens, so far as respects commerce, that has been proposed by Mr. Jefferson and approved by the executive council (this, it is presumed, in the eyes of certain characters, would be free from objection, though the naturalization by treaty, of the subjects of any nation but France, would be treason against the Constitution and against liberty), “will render this exemption from the tonnage duties less offensive to the powers who have a right by their treaties to claim the same exemption, for the casus fœderis by this mutual naturalization will be entirely changed in respect to them. The reciprocal guaranty of the possessions of the two nations, stipulated in the XIth article of the treaty of 1778, must form an essential clause in the new treaty to be concluded! The executive council, therefore, instructs Citizen Genet early to sound the American Government on this point, and to make it an indispensable condition of a free trade to the French West Indies, so interesting for the United States to obtain. It concerns the peace and prosperity of the French nation, that a people whose resources and strength increase in a ratio incalculable, and who are placed so near to our rich colonies, should be held by explicit engagements to the preservation of these islands. There will be the less difficulty in making these propositions relished by the United States, as the great commerce which will be their price, will indemnify them beforehand for the sacrifices they must make in the sequel. Besides, the Americans cannot be ignorant of the great disproportion between their means and those of the French Republic; that for a long time the guaranty will be merely nominal for them, while it will be real on the side of France. And moreover, that we shall, without delay, take measures to fulfil it on our part, by sending to the American ports, a force sufficient to shelter them from all insults and dangers, and to facilitate their intercourse with our islands and with France”;—“and to the end that nothing may retard the conclusion of the negotiations of Citizen Genet with the Americans, and that he may have in his hands all the means which may be employed in forwarding the success of his exertions to serve the cause of liberty, the council, in addition to the full powers hereunto annexed, have authorized the Minister of Marine to supply him with a number of blank letters of marque, to be delivered to such Frenchmen or Americans as should equip privateers in America; the Minister of War will likewise supply him with commissions in blank for the different grades of the army.”
These were extraordinary means to enable the French minister to conclude with our Government a pacific treaty of commerce. The above extracts, though not an entire translation of the whole of Mr. Genet’s instructions, many parts of which are foreign to the point in discussion, are a faithful abstract of such parts of them as relate to the principles and conduct of the French monarchy toward us, and are explanatory of the views of the executive council on the subject of a new treaty of commerce. It will, I think, prove, if the assertions of that council are to be credited, that the gratitude, of which we have heard so much, ought not to be demanded on account of the principles that influenced the monarchy of France during our war, or subsequent to the peace; and furthermore, it will prove that the real view of the French executive council in the mission of Mr. Genet, was to engage us, by advantages to be conceded in a new commercial treaty, to make common cause with France, in the expected war with Great Britain and the coalesced powers. If, then, the established footing of our trade with the British islands has been dictated by that colonial system of monopoly which forms a fundamental law in Europe; and if, moreover, the opinion that we could have procured a new and more liberal treaty of commerce with France, without plunging our country in the present war, is an error, that has been artfully imposed on the public, by exposing these truths, the examination of the treaty with Great Britain is at once freed from the objections and aspersions that have proceeded from these errors.
It will be useful, as it will simplify the examination of the commercial articles of the treaty, to bear in mind and preserve the division that we find established by the 12th, 13th, and the 14th and 15th articles; each respects a particular branch or portion of the trade between the two countries, the regulations whereof differ from, and are severally independent of, each other. Thus one is relative to the West Indies, another to the East Indies, and a third, distinct from both the former, respects our trade with the British dominions in Europe.
That Great Britain will consent to place our trade with her West India colonies upon an equally advantageous footing with her own, is improbable; this would be doing what none of the great colonizing nations has done, or is likely to do; it would be to relinquish the principal ends of the establishment and defence of her colonies; it would be equivalent to making her islands in the West Indies the common property of Great Britain and America, for all commercial and profitable purposes; and exclusively her own in the burden of support and defence.
The Senate have, however, and, I think, wisely, considered the terms and conditions, on which it is agreed by the 12th article that we should participate in the trade of the British West Indies, as less liberal than we may, with reason, expect. The exclusion of all vessels above the burthen of seventy tons, would diminish the benefits and value of this trade; and though we cannot calculate upon obtaining by future negotiation a total removal of a limitation on this subject, it is not altogether improbable that a tonnage something larger may be procured.
Those who are conversant with our present intercourse with the West Indies can best determine whether many vessels under seventy tons burthen are not, at this time, profitably employed in that trade. It is believed to be true, that, previous to our independence, vessels of this burthen were much engaged in that employ, as well in the Southern as in the Eastern States.
This limitation, though disadvantageous, is not the strongest objection to the 12th article: the restraining or regulating of a portion of our trade, which does not proceed from, and is independent of, the treaty, forms a more decisive reason against the article than any thing else that it contains.
The cause of this restraint is found in the commercial jealousy and spirit of monopoly which have so long reigned over the trade of the colonies. Under our treaty with France and the French colonial laws, it has been shown that we could not procure from the French islands sugar, coffee, cocoa, cotton, or any of the other productions, molasses and rum excepted. Great Britain has seen it to be compatible with her interest to admit us to share more extensively in the productions of her islands; but she has desired to place limitations on this intercourse. To have left it entirely open and free, would have been to have enabled us not only to supply ourselves by means of our own navigation, but to have made it an instrument of the supply of other nations with her West India productions.
When we reflect upon the established maxims of the colony system, and, moreover, when we consider that an entire freedom of trade with the British West Indies might, at times, materially raise the price of West India productions on the British consumers, the supply of whom is essentially a monopoly in the hands of the British planters, we shall be the less inclined to believe that Great Britain will yield an unrestrained commerce with her West India possessions to any nation whatever.
But if this was the object of the restraint, it may be asked why it was not confined to such enumerated articles as were of the growth or production of her own islands, instead of being so extended as to comprehend all molasses, sugar, coffee, cocoa, and cotton, including even the cotton of the growth of our own country. It is very possible that the circumstances of our native cotton’s becoming an article of export to foreign markets might not have occurred to our negotiator. This would be the less extraordinary, as heretofore it has not been cultivated, except in a very limited degree, and as an article of export rather in the manner of experiment than otherwise; and as, moreover, from the expense and difficulty of separating the seeds from the cotton, we have been hardly able hitherto to class cotton among our exports. Its cultivation is said latterly to have become an object of attention in Georgia and South Carolina,—still, however, it cannot yet be considered as a staple commodity. But from the recent ingenious and simple machine for spinning cotton, it is hoped that the cultivation may be extended, so that not only our own domestic manufactures may be relieved from a dependence on foreign supply, but the catalogue of our valuable exports enriched by the addition of this inestimable production.
In answer to the question that has been stated, it may be further observed that these enumerated articles, though the productions of different territories, being so much alike as not easily to be distinguished, it is probable that the difficulty in discriminating the productions of the British islands from those of a different growth was supposed to be so great, that an apprehension was entertained that the prohibition to re-export the former would be easily evaded and illusory, while the latter remained free.
This apprehension, however, it is believed, was carried too far; as, on a minute examination of the subject, it will be found that our laws relative to drawback, with a few analogous provisions in addition, can be made sufficiently to discriminate and identify, on re-exportation, all such articles of the growth of the British islands as may be within our country, and that they will afford the same security for a faithful and exact execution of the prohibition to re-export such articles as that on which our own Government relies against frauds upon the revenue. [The application of these laws, with the requisite additions and sanctions, may be secured by a precise stipulation for that purpose in the treaty, in such manner as would afford an adequate guard against material evasions.
But though the conduct of the Senate in withholding their assent of this article is conceived, upon the whole, to be well judged and wise, yet there were not wanting reasons of real weight to induce our negotiator to agree to it as it stands.
The inviolability of the principles of the navigation act had become a kind of axiom, incorporated in the habits of thinking of the British Government and nation. Precedent, it is known, has great influence, as well upon the councils as upon the popular opinions of nations!—and there is, perhaps, no country in which it has greater force than that of Great Britain. The precedent of a serious and unequivocal innovation upon the system of the navigation act dissolved, as it were, the spell by which the public prejudices had been chained to it. It took away a might argument derived from the past inflexibility of the system, and laid the foundation for greater inroads upon opinion, for further and greater innovations in practice. It served to strip the question of every thing that was artificial and to bring it to the simple test of real national interest, to be decided by that best of all arbiters, experience.
It may, upon this ground, be strongly argued that the precedent of the privilege gained was of more importance than its immediate extent—an argument certainly of real weight, and which is sufficient to incline candid men to view the motives that governed our negotiator in this particular with favor, and the opinion to which he yielded with respect. It is perhaps not unimportant by way of precedent, that the article, though not established, is found in the treaty.]
Though the 12th article, so far as respects the terms and conditions of the trade to the British islands, forms no part of the treaty, having been excepted, and made the subject of further negotiation, it may nevertheless be useful to take notice of some of the many ill-founded objections that have been made against it; of this character is that which asserts that the catalogue of articles permitted to be carried by us to the British islands, may be abridged at the pleasure of Great Britain, and so the trade may be annihilated.
The article stipulates that we may carry to any of his Majesty’s islands and ports in the West Indies, from the United States, in American vessels, not exceeding seventy tons, any goods or merchandises “being of the growth, manufacture, or production of the said States, which it is or may be lawful to carry to the said islands, from the said States, in British vessels”; not all such articles as it is and may be lawful to carry, but in the disjunctive, all such as it is or may be lawful to carry; in other words, all such articles as it is now lawful to carry, together with such others as hereafter it may be lawful to carry. The catalogue may be enlarged, but cannot be diminished. [It may also be remarked incidentally that this objection sounds ill in the mouths of those who maintain the essentiality of the supplies of this country, under all possible circumstances, to the British West Indies; for if this position be true, there never can be reasonable ground of apprehension of too little latitude in the exportation in British vessels, which is to be the standard for the exportation in ours.]
This article has been further criticised on account of the adjustment of the import and tonnage duties payable in this trade, and it has been attempted to be shown that the footing on which we were to share in the same would, on this account, be disadvantageous, and the competition unequal. What is the adjustment? The article proposes that British vessels employed in this trade shall pay, on entering our ports, the alien tonnage duty payable by all foreign vessels, which is now fifty cents per ton; further, the cargoes imported in British bottoms from British West Indies shall pay in our ports the same impost or duties that shall be payable on the like articles imported in American bottoms; and on the other side, that cargoes imported into the British islands, in American bottoms, shall pay the same impost or duties that shall be payable on the like articles imported in British bottoms—that is to say, the cargoes of each shall pay in the ports of the other only native duties, it being understood that those imposed in the British West Indies, on our productions, are small and unimportant, while those imposed in our ports, on the productions of the West Indies, are high, and important to our revenue. The vessels of each shall pay in the ports of the other an equal alien tonnage duty, and our standard is adopted as the common rule.
Is not this equal? Can we expect or ask that British vessels should pay an alien tonnage duty in our ports, and that American vessels should enter their ports freely, or on payment only of native tonnage duties? Can we in equity require them to pay, on the importation of their cargoes in British vessels, an addition of ten per cent. on the duties payable on the importation of the like articles in American vessels, and at the same time demand to pay no higher or other duties on the cargoes carried in our vessels to the British islands, than those payable by them on the like articles imported in British vessels? The very stating of the question suggests to a candid mind an answer, that demonstrates the injustice of the objection. [To expect more, were to expect that in a trade in which the opinions and practice of Europe contemplate every privilege granted for a foreign nation as a favor, we were by treaty to secure a greater advantage to ourselves than would be enjoyed by the nation which granted the privilege.]
But it is added that our laws impose a tonnage duty of six cents per ton on the entry of American vessels engaged in foreign trade, and it is not known that British vessels pay any tonnage duty on their entry in their ports in the West Indies; and so uniting the two entries, that is, the entry in the West Indies and the entry on a return to our ports, an American vessel will pay fifty-six cents per ton, when the British vessels will pay only fifty cents per ton. If the British Government impose no tonnage duty on their own vessels, and we do impose a tonnage duty on ours, this certainly cannot form an objection against them. They are as free to refrain from the imposition of a tonnage duty on their own ships as we are to impose one on ours. If their policy is wiser than ours in this respect, we are at liberty to adopt it, by repealing the tonnage duty levied on American navigation, which, if we please, may be confined to the particular case; the effect of such a measure, as far as it should extend, though the duty is small, would be to add a proportionable advantage to our shipping in foreign competition. But the object of the articles in this particular is to equalize, not the duties that each may choose to impose on their own vessels, but those that they shall impose on the vessels of each other; and in this respect the article is perfectly equal. [It is perhaps the first time that the objection of inequality was founded on a circumstance depending on the laws of the party affected by it, and removable at his own option.]
This view of the subject authorizes a belief, that, in the revision of the article, a modification of it may be agreed to that will prove satisfactory. Indeed, from the short duration of the article, taken in connection with the expressions made use of towards the close of it, relative to the renewal of the negotiation, for the purpose of such further arrangements as shall conduce to the mutual advantage and extension of this branch of commerce, we may infer that Great Britain contemplates a more enlarged and equal adjustment on this point.
The relaxations which now exist in the colonial systems, in consequence of the necessities of war, and which will change to our disadvantage with the return of peace, have been considered by some as the permanent state of things. And this error has had its influence in misleading the public in respect to the terms and conditions on which we may reasonably expect to participate in trade to the West Indies. But let it be remembered, that the restoration of peace will bring with it a restoration of the laws of limitation and exclusion, which constitute the colonial system. Our efforts therefore should be directed to such adjustment with Great Britain on this point, as will secure to us a right after the return of peace, to the greatest attainable portion of the trade to her islands in the West Indies.
It has been alleged, should the expected modification of this article retain its present stipulation on the subject of import and tonnage duty, that as France by treaty may claim to enjoy the rights and privileges of the most favored nation, she would demand an exemption from the ten per cent. on the duties upon the productions of the West Indies imported in foreign bottoms, and would moreover be free to impose an alien tonnage on our vessels entering her ports in the West Indies, equal to that imposed on her vessels in our ports. This is true. But in order to make this demand, France must agree, by treaty, to open all her ports in the West Indies, to give us a right to import into them flour, bread, tobacco, and such other articles as Great Britain should permit, and which France by her permanent system prohibits; she must also concede to us a right to purchase in her islands, and bring away sugar, coffee, and pimento, which by the same system she also prohibits; she must do all this, because, by our treaty with her, she can only entitle herself to a special privilege granted to another nation, by granting on her part to us the equivalent of what was the consideration of our grant. Should France be inclined to arrange the trade between us and her islands, we certainly shall not object; because, besides the right to such an arrangement, it would be more advantageous to us than that which now regulates our intercourse with her West Indies.
So much of the 12th article as respects its duration and the renewal of the negotiation previous to the expiration of two years after the conclusion of the war, in order to agree in a new arrangement on the subject of the West India trade, as well as for the purpose of endeavoring to agree whether in any, and in what cases, neutral vessels shall protect enemy’s property, and in what cases provisions, and other articles not generally contraband, may become such, form a part of the treaty as ratified by the President. These clauses sufficiently explain themselves, and require no comment in this place. They, however, prove one point, which is, that after every effort on the part of our negotiator, the parties were not able to agree in the doctrine that free bottoms should make free goods, nor in the cases in which alone provisions and other articles not generally contraband, should be deemed such. Leaving, therefore, both these points precisely as they found them (except in respect to provisions, the payment for which, when by the law of nations liable to capture as contraband, is secured), to be regulated by the existing law of nations, it is stipulated to renew the negotiation on these points at the epoch assigned for the future adjustment of the West India trade, in order then to endeavor to agree in a conventional rule, which, instead of the law of nations, should thereafter regulate the conduct of the parties in these respects.
[The 11th article has been passed over in silence as being merely introductory and formal.]
(From the Minerva.)
The British trade to their possessions in the East Indies, as well as to China, is a monopoly vested by the Legislature in a company of merchants. No other persons in Great Britain, nor in any of her dominions or colonies, can send a vessel to, or prosecute trade independent of the company, with any part of Asia. The right to trade with their possessions in India is not only refused to all British subjects, the India Company excepted, but is one that Great Britain has never before yielded by treaty to any foreign nation. By the terms of the charter to the India Company, among a variety of limitations, they are restrained and confined to a direct trade between Asia and the port of London; they are prohibited from bringing any of the productions of India or China directly to any part of America, as well to the British colonies as to our territories; and moreover, they are restrained from carrying any of the productions of Asia directly to any part of Europe, or to any port in Great Britain, Scotland, or Ireland, except the single port of London.
The 13th article stipulates, that our vessels shall be admitted in all the seaports and harbors of the British territories in the East Indies, and that our citizens may freely carry on a trade between said territories and the United States in all such articles, of which the importation or exportation shall not be entirely prohibited; provided only that when Great Britain is at war we may not export from their territories in India, without the permission of their local government there, military stores, naval stores, or rice. Our vessels shall pay in this trade the same tonnage duty as is paid by British vessels in our ports; and our cargoes on their importation and exportation shall pay no other or higher charges or duties than shall be payable on the same articles when imported or exported in British bottoms; but it is agreed that this trade shall be direct between the United States and the said territories; that the article shall not be deemed to allow the vessels of the United States to carry on any part of the coasting trade of the British territories in India, nor to allow our citizens to settle or reside within the said territories, or to go into the interior parts thereof, without the permission of the British local government there.
The British trade to their territories in the East Indies is carried on by a corporation, who have a monopoly against the great body of British merchants. Our trade to the same territories will be open to the skill and enterprise of every American citizen. The British trade to these territories is direct, but confined to the port of London; our trade to the same must likewise be direct, but may be carried on from and to all our principal ports.
The article gives us a right in common with the India Company to carry to these territories, and to purchase and bring from thence, all articles which may be carried to or purchased and brought from the same, in British vessels: our cargoes paying native duties, and our ships the same alien tonnage as British ships pay in our ports. This trade is equally open to both nations; except when Great Britain is engaged in war, when the consent of the British local government is required in order to enable us to export naval stores, military stores, and rice; a limitation of small consequence, none of the articles except nitre being likely to form any part of our return cargoes. Though this article is one against which the objection of a want of reciprocity (so often and so uncandidly urged against other parts of the treaty) has not been preferred, it has not, however, escaped censure.
It is said that we are already in the enjoyment of a less restrained commerce with the British territories in India, and that the treaty will alter it for the worse; inasmuch as we thereby incapacitate ourselves to carry on any part of the coasting trade of the British territories in India, and as we relinquish the profitable freights to be made between Bombay and Canton, and likewise those sometimes obtained from the English territories in Bengal to Ostend.
It would seem a sufficient answer to say, that this trade has heretofore existed by the mere indulgence of those who permitted it; that it was liable to variations; that a total exclusion, especially had it been of us in common with other foreign nations, could have afforded no just ground of complaint; that the relaxation which has hitherto given us admission to the British Indian territories, was not a permanent, but a mere temporary and occasional regulation, liable to alteration, and by no means to be demanded as the basis of an intercourse to be adjusted by compact with a foreign nation, which would no longer leave the power of alteration in either of the parties.
But in respect to the first objection the article amounts to this, that the rights which it does grant shall not by implication be construed to give a right to carry on any part of the British coasting trade in India.
If we have before shared in this trade by permission, nothing in the article will preclude us from enjoying the same in future. If we did not participate in it, nothing in the article impairs either the authority of the British local government to permit our participation or our capacity to profit by such permission. This objection, therefore, falls to the ground, since the coasting trade remains as it was before the treaty was formed.
[Further, according to my information.]—It is not the trade between the East Indies and China, as has been erroneously supposed by some persons, but the exportation of rice and other articles, which are exchanged between the British territories in the hither and further Indies, that is denominated the coasting trade of the British territories in India. The importance of this trade is not well understood; nor am I able to say whether we have heretofore been allowed to carry it on. If we have, the little that we have heard of it leads to an opinion that it is not an object of much consequence. Let is, however, be granted that hereafter we shall not be allowed to engage in it. Shall we have more reason to complain of this exclusion, than we have that we are refused a share in the coasting trade of the European dominions of Great Britain? or that we are excluded from the coasting trade between their islands in the West Indies? or than the British themselves have, that by our prohibiting tonnage duty (being fifty cents per ton on entry of a foreign vessel, when our own coasting vessels pay only six cents per ton, for a year’s license) they are excluded from sharing in our coasting trade—a branch of business that already employs a large proportion of our whole navigation, and is daily increasing?
In respect to the second and third objections, it may be remarked, that so far as the trade has been heretofore enjoyed, it has been in consequence of an exception from, and relaxation in, the system by which the European commerce has been regulated; that having depended on the mere occasional permission of the local government, we may safely infer (though it may have been supposed incompatible with the discretionary powers vested in that government, to confer by treaty a positive right to carry on the trade in question) that so long and as often as the interest that has heretofore induced the grant of this permission shall continue or exist, the permission will be continued or renewed. The stipulation, restraining the trade, may, if the parties see fit, be dispensed with, and the trade, may, if the parties see fit, be dispensed with, and the trade may be enlarged, or made free. It being a contract only between them and us, the parties are free to remodify it; and without a formal alteration, if those in whose favor the restraint is made consent to remove it, the other party is released from the obligation to observe it.
Again—Surat, which is in the neighborhood of Bombay, is the emporium of Guzerat, and of the northern portion of the Malabar coast; the cottons shipped from Bombay to Canton are frequently first sent from Surat to Bombay. Surat belongs to the native powers to which we have free access. If the transportation of cotton and some few other commodities from the coast of Malabar to Canton is an important branch of our commerce, what will prevent our prosecuting it from Surat or any other free port in the hither Indies?
That it may be undertaken from the ports of the native powers is rendered probable by the circumstance, that these freights are supplied principally or alone by the native or black merchants, whose residence would naturally be in the ports under native jurisdiction more frequently than in those under the jurisdiction of any of the foreign powers.
But is it not true (and will not candor admit it?) that the trade to the Asiatic dominions of the European powers has usually been confined to the nation to whom such territories belong? In our treaty with Holland, have we not even stipulated to respect their monopoly of this trade? And by our treaty with France, a nation whose liberal policy is said to have laid us under eternal obligations of gratitude, have we acquired the slightest pretensions, much less a right, to resort to, or trade with, any part of their Asiatic territories?
A late decree of the convention which opened to us the ports in their West Indies, likewise laid open their remaining territories in Asia. But this measure, proceeding from the necessities of the war and their inability to carry on their foreign commerce, will change hereafter, as heretofore it has done, with the establishment of peace. Did this opinion require to be strengthened, it is abundantly confirmed by the navigation act, decreed by the convention; the operation whereof is suspended for the same reason that induced the opening to foreigners that trade to their colonies and territories in the West and East Indies.
The British for more than a hundred years excluded foreigners from a share in their East India trade; for a few years past they relaxed in the rigor of this system. We have availed ourselves of this circumstance, and shared with them in their India commerce. But this permission can be viewed only as an occasional departure from a general law, which may be affected by a change of circumstances; the duration of which, therefore, is uncertain. The loss and inconvenience to which our merchants may be exposed from the prosecution of a trade depending on regulations arising from inconstant circumstances, and which frequently vary, may, in some measure, be guarded against, where the scene is not remote, and the alterations in the laws can be known soon after they are made. But in the Asiatic and in our other distant commerce, it is of importance that the laws under which an adventure is begun should be permanent. Losses to a considerable amount have been experienced by some of our merchants, who have undertaken distant voyages in the expectation of the continuation of these temporary regulations. The trade, for example, with the Cape of Good Hope (which the Dutch Government ordinarily monopolize to their own people) was some time since opened to foreigners, and some of our citizens profited by it; but others, who had engaged in large adventures to that market, suffered no small disappointment and loss in finding themselves excluded, upon their arrival, by a repeal of the permission to foreigners to trade there. It must then be considered as an important object secured, in respect to the principal proportion of our India trade, that alone which is capable of being pursued as a branch of our commerce, that the treaty turns a favor into a right, and that our direct intercourse with the British territories in the East Indies, in all respects as broad as that of Great Britain herself (except in the articles of rice, naval and military stores, when Great Britain is engaged in war), instead of being an uncertain and hazardous trade, as heretofore, from its precarious nature, it has been, will, hereafter, be as certain as any in which our merchants shall engage.
It is further alleged, by way of objection to this article, that it does not secure to our citizens a right to reside and settle in the British territories in India, without the consent of the British local government. The observation that has been made on a similar objection, in respect to the coasting trade in India, is equally applicable to this. The article leaves subjects precisely in the situation in which it found them. But let it be remembered that the disproportion between the numbers of the native Indians and the foreigners inhabiting their country, is more than one thousand of the former to one of the latter; that the most exact discipline and subordination among the foreigners are therefore essential to the preservation of the British authority over that country; that no foreigner, or even a British subject, is allowed to reside there, except in the character of a servant of the company, or of a licensed inhabitant; that it has long been held as a sound opinion, that unrestrained liberty to the Europeans to emigrate to and settle among the Indians, would, in a short time, overturn and destroy the British empire in India. This danger would by no means be diminished by conferring a right upon the Americans, freely to reside and settle in India; that we shall be allowed to reside and settle there by permission of the local British government, is fairly to be inferred from the article. But an [absolute right] to an entire liberty on these points might evidently be dangerous to the British government over India—[and in prudence could not have been stipulated].
The advantageous footing on which the trade is placed is so evident, that those who had no reliance on the objections urged against it, but who, nevertheless, have been unwilling to allow the treaty any merit on the score of this article, have endeavored to show that our India trade is of little importance, and of small value.
Whatever article can be supplied by the India Company may likewise be supplied by us, and some of them on better terms by us than by them. The reports of the committee of the directors of the East India Company, published in 1793, when their charter was renewed, afford useful information on this subject, and disclose facts which show the advantages that we shall possess in this trade over the company. They admit, that in the articles of iron, wines, canvas, cordage, arms, and naval and military stores, foreigners can enter into a beneficial competition with them; and that canvas and cordage and, we may add, all naval stores and several other articles can always be furnished in India by foreigners cheaper than by the Company.
If we appreciate the advantage we have over them, in such articles of supply as are of our own growth or production, as well as in the wines not unusually procured by touching at Madeira on the outward voyage to India, and compare it with the advantage that they have over us in the few articles of choice which they purchase at the first hands, and which we must import in order to re-export to India, it is probable that our cargoes to India will, on the whole, be laid in as advantageously, if not more so than those of the India Company. If we consider the vast extent of territory, the numerous population, and the established manufactures of India, so far from supposing that a free trade to that country will be of little value to a young and enterprising nation, whose manufactures are still in their infancy, we ought rather to conclude that it is a country with which we should be solicitous to establish a free trade and intercourse.
Every one who has bestowed the slightest attention upon the foreign manufactures consumed in our country, must have observed the general and increasing use of those of India, owing to the better terms on which they can be procured from Asia than from Europe. Though no document is at hand that will show the value of the annual importations from India, it is stated by Mr. Coxe, in his View of the United States, that the amount in value of our importations from Asia is more than one fifth of the value of our whole annual consumption of foreign commodities. It is true that the porcelain, silks, nankeens, and teas of China form a large portion of this annual importation. But, after a full deduction on this account, a great and profitable branch of our commerce will be found in our trade to the East Indies. It should be remembered, [also,] that it is not the consumption of our own country that regulates the quantity of India goods that we import; other countries have been supplied through us with the fabrics and productions of both India and China. The treaty will enlarge this demand.
Several circumstances calculated to give our trade with Asia an advantage against foreign competition, and a preference to our trade with Europe, are deserving of attention.
First.—The direct trade between us and Asia, including the East Indies, as well as China, cannot be prosecuted by the British East India Company, their ships being obliged to return to the port of London, and there to discharge.
Second.—The difference between the duties on Asiatic goods imported in American bottoms direct from Asia, and the duties imposed on the same goods in foreign bottoms from Asia or from Europe; being on all articles a favorable discrimination, and in the articles of teas, the duties on those imported in foreign bottoms being fifty per cent. higher than on those imported in American bottoms.
The particular difference of duties on Asiatic goods imported in American and in foreign bottoms, so favorable to our own navigation, will not be affected by the right reserved by Great Britain to impose countervailing duties in certain cases, that right being relative to the intercourse between the United States and the British territories in Europe.
Third.—The European intercourse with Asia is, in most cases, conducted by corporations or exclusive companies, and all experience has proved that in every species of business (that of banking and a few analogous employments excepted), in conducting of which a competition shall exist between individuals and corporations, the superior economy, enterprise, zeal, and perseverance of the former will make them an overmatch for the latter; and that while individuals acquire riches, corporations engaged in the same business often sink their capital and become bankrupt. The British East India Company are, moreover, burdened with various terms and conditions, which they are required to observe in their Asiatic trade, and which operate as so many advantages in favor of their rivals in the supply of foreign markets. The company, for example, are obliged annually to invest a large capital in the purchase of British manufactures, to be exported and sold by them in India; the loss on these investments is considerable every year, as few of the manufactures which they are obliged to purchase will sell in India for their cost and charges; besides, from the policy of protecting the home manufactures, the Company are, in a great measure, shut out from supplying India goods for the home consumption of Great Britain. Most of the goods which they import from India are re-exported with additional charges, incurred by the regulations of the Company, to foreign markets, in supplying of which we shall be their rivals, as, from the information of intelligent merchants, it is a fact that Asiatic goods, including the teas of China, are [on an average] cheaper within the United States than in Great Britain.
Fourth.—The manufactures of Asia are not only cheaper here than in Europe, but in general they are cheaper than goods of equal quality of European manufacture. So long as from the cheapness of subsistence and the immense population of India (the inhabitants of the British territories alone being estimated at forty millions) the labor of a manufacturer can be procured from two to three pence sterling per day, the similar manufactures of Europe, aided with all their ingenious machinery, are likely, on a fair competition, in almost every instance, to be excluded by those of India. So apprehensive have the British Government been of endangering their home manufactures by the permission of Asiatic goods to be consumed in Great Britain, that they have imposed eighteen per cent. duties on the gross sales of all India muslins, which is equal to twenty-two per cent. on their prime cost. The duties on coarser India goods are still higher, and a long catalogue of Asiatic articles, including all stained and printed goods, is prohibited from being consumed in Great Britain.
The British manufacturers were not satisfied even with this prohibitory system; and on the late renewal of the Company’s charter, they urged the total exclusion from British consumption of all India goods, and, moreover, proposed that the Company should be held to import annually from India a large amount of raw materials, and particularly cotton, for the supply of the British manufacturers.
Those facts are noticed to show the advantages to be derived from a free access to the India market, from whence we may obtain those goods which would be extensively consumed even in the first manufacturing nations of Europe, did not the security of their manufactories require their exclusion.
The third article contains the terms and conditions of the trade and intercourse that it authorizes between us and the British colonies on the American continent. The twelfth article was intended to adjust the trade between us and the British islands in the West Indies. The thirteenth article secures to us a direct trade with the British territories in the East Indies; and it is the office of the fourteenth and the fifteenth articles to ascertain and establish the terms of the intercourse and trade between the territories of the United States and the British dominions in Europe.
The fourteenth article establishes a perfect and reciprocal liberty of commerce and navigation between the territories of the United States and of the British dominions in Europe; stipulates that the people and inhabitants of the two countries respectively, namely, of the United States and of the British dominions in Europe, shall have liberty to come with their ships and cargoes to the ports, cities, and places of each other, within the territories and dominions aforesaid, to resort and reside there, without limitation of time, to hire houses and stores for the purpose of commerce; and that the merchants and traders on each side shall enjoy, for their commerce, the fullest protection and security, subject, notwithstanding, in respect to the stipulations of this article, to the laws of the two nations respectively.
As this article, in the customary language employed in the introductory articles of commercial treaties, speaks of a perfect liberty of commerce and navigation, without excepting any commodity, or specifying any impost or duty, it was possible that a latitude or freedom of trade, inconsistent with the revenue laws and policy of the two nations, might have been claimed under it; hence the propriety of the provision with which the article concludes, and which reserves to the parties respectively the power of avoiding this inconvenience, by continuing and enacting such laws as may be proper for the purpose.
But as under this power again, partial duties, and even partial exclusions, might have been established, whereby ships and merchandises, as well as the articles of the growth, produce, or manufacture of one of the parties, might have been made liable to higher duties and imposts in the territories of the other, than the ships and similar merchandises, and articles of the growth, produce, or manufacture of other nations; or whereby one of the parties might prohibit the importation or exportation, by the other, of any article to and from his territories, the importation or exportation whereof was at the same time free to some other nation: in order to prevent such inequalities, and to secure effectually to the parties a right to carry on their trade with each other, on terms equally advantageous and extensive with those established by either with any other nation, the fifteenth article stipulates:
1. That no other or higher duty shall be exacted or paid on the ships and merchandises, nor on the articles of the growth, produce, or manufacture of one of the parties, on their entry or importation into the territories of the other, than shall be payable on the like ships and merchandises, and on similar articles of the growth, produce, or manufacture of any other nation.
2. That no article, the importation or exportation of which by either party, to or from the territories of the other, is prohibited, shall be imported or exported to or from the same by any other foreign nation; and that every article allowed to be imported or exported to or from the territories of either party, by any foreign nation, may be imported or exported to or from the same, by the parties respectively.
By these stipulations it is agreed, that the people and inhabitants of the United States and of the British dominions in Europe shall have the right to carry on trade between the said territories in all articles and commodities in which any other foreign nation may trade with either of the parties; that the imposts or duties on any article in the course of such trade shall be no other or higher than the lowest imposts or duties paid by any other foreign nation on the like article; that both parties shall remain free, totally to prohibit the importation or exportation, to or from their respective territories, of any species of goods or merchandise, or to increase the existing duties, or to impose new ones, on the importation of any species of goods or merchandises into their respective territories; such prohibitions and duties operating equally against all foreign nations. So far as respects the interchange of commodities between the parties, these stipulations breathe the spirit of reciprocity. The residue of the fifteenth article principally relates to the navigation which the parties shall employ in this trade.
The first clause of the fifteenth article, in the spirit of those treaties which mutually confer the right of the most favored nations, stipulates that no other or higher duties shall be paid by the ships of the one party in the ports of the other, than such as are paid by the like vessels of all other nations.
By our laws, a difference exists between the tonnage duty paid by an American vessel, and that paid by a foreign vessel in our ports: the American vessel pays only six cents per ton on her entry; the foreign vessel, on her entry, pays fifty cents per ton, and about twenty per cent. more duties on all teas imported from Europe, and ten per cent. more duties on the importation of other goods, than are payable on the importation of the same goods in an American vessel.
By the British laws, the difference between the duties paid by British and foreign vessels in the British ports in Europe is less than that which exists in our ports. The consequence is, that a British vessel, of a given burthen, pays considerably more tonnage duties in the trade between our territories and the British ports in Europe, than is paid by an American vessel of the same burthen, engaged in the same trade.
The trade being laid open to both parties, the principle of equalization of duties was very naturally deemed an equitable basis of treaty. This could be effected by lowering the American alien duties to the British standard, or by raising those of Great Britain to the American standard. The former might have been inconvenient to our revenue [especially since, if it was not general, it would have formed, in respect to foreign nations, an unpleasant discrimination in our laws].
The American tonnage duty, therefore, was left to operate; and by the fifteenth article, it is agreed, that the British Government shall reserve a right to raise the tonnage duty on our vessels entering their ports in Europe, so as to make it equal to the tonnage duty payable by their vessels entering our ports; and in order to balance the difference of duties on goods imported into our ports by American or by British vessels, the effect whereof is the same as that which proceeds from an alien tonnage duty, the article further agrees, that the British Government shall reserve a right to impose such duty as may be adequate to effect this end. The preceding clause of this article stipulates, that the vessels and cargoes of each shall pay no higher or other duties than those imposed on the like vessels and cargoes of all other nations. It was therefore necessary to reserve a right to increase against us their alien tonnage duty, and to impose the countervailing duty in question; as, without such reservation the same could not have been done, unless by laws equally operating against all other nations [which would have been unjust in reference to such of them as might not, like us, have discriminated in their duties between their own and foreign vessels].
Two methods have been suggested by which this countervailing power might be executed.
One by imposing a pro rata duty on the importation of goods into the British ports in Europe by American vessels, equal to the difference between the duties payable in our ports on the importation of goods by American or British vessels.
[The other] by imposing the identical duty on the exportation of goods from the British ports in Europe by American vessels, which forms the difference between the duties payable on the importation of the same goods into our ports by American or British vessels.
As the articles imported by our vessels into the British ports in Europe are dissimilar from those imported from the same into our ports, one rule of difference would not effect the equalization sought for; and as our difference of duties is not the same on all articles, being higher on some than on others, [and as, moreover, the quantities and amount of different articles differ widely, and are liable to continual proportional variations,] no uniform [average] rule of countervailing these differences can be devised. The [correct] execution, therefore, of this power, in the method first suggested, is impracticable, and [it is presumed] must be discarded.
The power, then, [it would seem,] can only be [equitably] exercised by imposing on the articles which we shall export in American vessels from the British ports in Europe, a duty identically the same as that which constitutes, in any case, the difference of duty, payable in our ports, on the same articles imported from the British ports in Europe by a British or an American vessel. Thus they may impose on tea and other Asiatic goods, as well as on the European goods which we shall export from the British ports in Europe, the identical duty or the same sum which constitutes the difference of duties payable in our ports on the importation from thence of the same articles by an American or a British vessel.
The right to countervail our alien tonnage duty by imposing an alien tonnage duty on our vessels entering the British ports in Europe, equal to that which shall be payable on their vessels entering our ports, will continue so long as the commercial treaty shall endure, and will apply to any future increase of the tonnage duty on foreign vessels that we may establish. It is, however, stipulated in the conclusion of the fifteenth article, that we shall abstain from increasing the tonnage duty on British vessels, and also from increasing the difference that now exists between the duties payable on the importation of any articles into our ports in British or in American vessels, until the expiration of two years after the termination of the war between France and Great Britain. But we are free to increase the one or the other, after the expiration of that period. And though the British Government will have a right to countervail, by additional tonnage duties on our vessels, any increase of that duty on their vessels, yet they will have no right to countervail any increase of the difference between the duties payable on the importation of any articles into our ports, in British or in American vessels, unless by a duty common to all foreign nations; the right reserved on this subject, being confined to the difference that now exists, will not reach such future increase.
From this analysis of the fourteenth and fifteenth articles we are the better enabled to perceive the truth of the following propositions:
1. As, for the purpose of encouraging or protecting the agriculture and manufactures of Great Britain, several of our productions, in common with similar productions of the other nations, are prohibited from being imported into the British ports in Europe, we are free, whenever our interest shall require it, also to exclude any of the productions of the British dominions from being imported into our ports, extending such exclusions, as they do, to the like manufactures and productions of foreign nations.
Should that part of the twelfth article, which has not been ratified, in its modification retain the stipulation relative to the importation of coffee, sugar, and the other productions of the West Indies, it would constitute an exception to this proposition. But as the West India productions are dissimilar to those of our own country, they would not fall within the reason of these prohibitions, and, therefore, the exception would be of no consequence
2. As, for the like reasons, some of our productions are subject, in common with the like productions of other nations, to high or prohibitory duties in the British ports in Europe, we are free, likewise, to impose similar duties on any of the productions or manufactures of the British dominions, extending such duties, as they do, to the like productions and manufactures of other foreign nations.
3. As the navigation act of Great Britain, in order to extend their own shipping, has heretofore confined the importation of foreign productions into the British ports to British ships, and to the ships of the country producing the same; the fifteenth article [appears] to contain an important innovation on this celebrated act, inasmuch as [by the most obvious construction of the terms] it gives us a right to import from our own territories into the British ports in Europe every article and description of goods and merchandises which any nation in their own ships is allowed to import. In consequence whereof, while all other foreign nations are prohibited and restrained from importing in their own vessels into Great Britain any goods or merchandises, except those of their own particular growth, produce, or manufacture, we, by the treaty, have a right to carry from our ports to the British ports in Europe, not only goods and merchandises of our own growth, produce, or manufacture, but also such goods and merchandises, the growth, produce, or manufacture of any foreign nation, as a nation producing or manufacturing the same would import in their vessels into Great Britain.
4. Should it ever be politic to exclude all foreign vessels from importing or exporting any species of goods, wares, or merchandises, by confining their importation or exportation to our own vessels, we are perfectly free to do so; with the exception, relative to the West India productions, referred to under the first proposition. Thus, for example, we may prohibit the importation of all Asiatic goods, except in American bottoms.
That these articles of the treaty leave our navigation and commerce as free, and secure to us as extensive advantages as have before been procured by our commercial treaties with foreign nations, will be seen by the following comparison:
1. By the articles before us, the parties restrain themselves from imposing any other or higher duties on the vessels and cargoes of each other, than they impose on the vessels and cargoes of all other nations; and also from imposing a prohibition of the importation or exportation of any article to or from the territories of each other, which shall not extend to all other nations. By the third and fourth articles of our treaty with France, and by the second and third articles of our treaty with Prussia, it is stipulated, that the subjects and citizens of the respective parties shall pay, in the ports, havens, and places of each other, no other or greater duties or imposts, of whatsoever nature they may be, than those which the nations most favored shall be obliged to pay; and, moreover, that they shall enjoy all the rights, liberties, privileges, and exemptions in trade, navigation, and commerce, which the said nations do or shall enjoy. And by the second article of the former and the twenty-sixth article of the latter treaty, the parties agree mutually, not to grant any particular favor, in respect to navigation or commerce, which shall not immediately become common to the other party, who shall enjoy the same favor, if freely granted, or on allowing the same compensation, if the concession was conditional.
The stipulations in the three treaties are, on these points, equivalent.
The second and third articles of our treaty with Holland, and the third and fourth of our treaty with Sweden, likewise contain mutual stipulations, that the subjects and citizens of the several parties shall pay in the ports, havens, and places of their respective countries, no other or higher duties or imposts than those which the nations most favored shall pay; and that they shall enjoy all the rights, liberties, privileges, and exemptions in trade and navigation which the said nations shall enjoy.
2. The articles before us, after stipulating that there shall be, between our territories and the British dominions in Europe, a reciprocal and perfect liberty of commerce, declare that the same shall be subject always to the laws of the respective countries. The introductory articles of our treaties with France, Holland, and Sweden, after asserting the intentions of the parties to take equality and reciprocity as their basis, likewise leave each party at liberty to form such regulations respecting commerce and navigation as it shall find convenient to itself; and the second and third articles of our treaty with Prussia, after stipulating the rights of the parties, respecting the duties and imposts, and the freedom of their navigation and trade, likewise require their submission to the laws and usages established in the two countries.
3. The articles before us, in their provisions relative to navigation, stipulate, as has been already observed, in common with our other treaties, that the ships of the parties shall not be subject to higher or other duties than those paid by all other nations. They go further, and agree to vary this rule, so far as shall be necessary to equalize the tonnage duty imposed by the parties on the ships of each other. Our treaty with France is the only one in which we discover a similar stipulation. France had a high alien tonnage duty on all foreign vessels transporting the merchandise of France from one port to another port in her dominions. We had a less alien tonnage duty on foreign ships employed in a similar trade. Though not equally extensive, the case is parallel to that which exists between us and Great Britain. We have a high alien tonnage duty on all foreign vessels entering our ports; Great Britain has a less alien tonnage duty on foreign vessels entering her ports. In our treaty with France we reserve a right to countervail the alien tonnage duty imposed by France; and in like manner, in our treaty with Great Britain, she reserves a right to countervail the alien tonnage duty imposed by us. The object, in both instances, has been to place the navigation of the parties on the footing of exact equality.
The preceding exposition of these articles, illustrated by the comparison of their provisions with the analogous articles of our other treaties, would be sufficient to vindicate them against the objections to which they have been exposed. It is, however, thought advisable to take notice of such of these objections as are likely to have any influence on the public opinion.—[This will be done in a subsequent number.]
An extraordinary construction of the last clause of the fourteenth article has been assumed by the writer of Cato; his mistake in this instance has been the foundation of many of the errors with which that performance abounds. The article stipulates that there shall be a perfect and reciprocal liberty of navigation and commerce between our territories and those of Great Britain in Europe, subject always to the laws and statutes of the two countries, respectively. This navigation and commerce, says Cato, must be subject to, and defined and regulated by, the laws and statutes of the two countries which existed at the time of making the treaty; all future laws, that either party might be disposed to make, relative to the same, being excluded.
The reason assigned in support of this interpretation is, that the article would be nugatory, did not the laws and statutes alluded to mean only those in existence at the making of the treaty, since future laws might impair or destroy what the article confers.
Nothing in the expressions themselves requires this interpretation.
The customary and established meaning of them in other treaties would lead to a rejection of it. The object of the clause is not the limitation of the legislative power of the parties, but the subjection of their mutual navigation and commerce to their respective laws. This end is most fully attained by understanding the parties to mean their future as well as their existing laws. Besides, the interpretation must be such as will not destroy the use and meaning of other parts of the treaty. If this construction is just, some of the most important stipulations of the fifteenth article would really become useless. For instance, if the laws, existing at the time of making the treaty are alone to prevail, the articles of commerce, admitted or excluded by those laws, must remain entitled to admission or liable to exclusion. Why then say in the fifteenth article “that no prohibition shall be imposed on the exportation or importation of any articles to or from the territories of the parties respectively, which shall not extend to all other nations?” If a prohibition, applying to all foreign nations, may be imposed (as the clause allows), this would be a new or subsequent law, varying the law existing at the time of making the treaty, and consequently defeating the construction in question.
The reason adduced by Cato to support his construction is equally defective with his interpretation itself. The fourteenth article is in general terms, and similar, as has been shown, to the introductory articles of other treaties; so far from the last clause thereof being capable of destroying the preceding stipulations, it is the peculiar province of the next article to ascertain the points which the parties mutually agree to except from their legislative power. In all cases not thus excepted, the navigation and commerce of the parties is subject to their existing or future laws.
It is not necessary to remark on the several objections which have proceeded from the opinion that the treaty restrains us from imposing prohibitory duties and exclusions; they are but subdivisions of the error that has been just combated.
Another objection which has been stated by several writers, and much labored by Cato, is that, under the right reserved to the British Government to countervail an alien tonnage duty, by the imposition of an equivalent one on our vessels entering their ports, they would gain and we should lose.
Several methods are adopted to prove this opinion. The observation that we have a tonnage duty on our own vessels, and that Great Britain has none, is repeated by way of objection against this as well as against the proposed adjustment contained in the twelfth article. The same reply already given might be sufficient in this place.
But [is it true] that British ships entering their own ports in Europe are wholly free from a tonnage duty? The contrary is the fact; since it is understood that they pay a tonnage duty for the support of light-houses, and some other institutions, connected with their navigation, which [in all their ports ] exceeds the tonnage duty of six cents per ton, that we levy on the entry of our own vessels employed in foreign trade. But Great Britain (it is alleged) will not only impose, in virtue of this reserved right, fifty cents per ton on our vessels entering her ports, but in every port except that of London she will furthermore exact one shilling and ninepence sterling, or thirty-nine cents per ton, for light-money and Trinity-dues, more than is paid by her own vessels; this, added to the difference before stated, would have, it is said, a very discouraging effect upon our navigation. Our tonnage duty is a tax not divided and appropriated, like the light-money or Trinity-dues in Great Britain, to specific and particular objects, but when levied, goes into the treasury with the duty of impost, and stands appropriated to the various objects to which that duty is appropriated. Among those objects is the support of light-houses. It is not the object to which the tax is applied that gives a denomination; whether it goes to support the civil list, or to pay annuities, or to maintain light-houses, or to support hospitals, it is equally a tonnage duty. A tonnage duty, then, of a certain amount, is now paid by American vessels entering the ports of Great Britain. This duty is not uniform, being less in London than in the other ports, and, in some instances, less than the tonnage duty paid by British ships entering our ports. The object of this clause (8th of the 15th article) is to equalize the alien tonnage duties of the parties. Hence the reservation of a right to the British Government to impose on our vessels entering their ports in Europe, a tonnage duty equal to that which shall be payable by British vessels in our ports. It would be against the manifest views of the parties, as well as against the explicit terms of the articles, to impose a tonnage duty (whether for light-money, Trinity-dues, or any other purpose) which should exceed that which shall be payable by British vessels in our ports.
The right reserved is expressly to impose on our vessels an equal, not a greater tonnage duty than we shall impose on their vessels. This objection, therefore, must be abandoned.
But again, it is urged that our navigation, should it weather Scylla, must perish on Charybdis; for we are gravely told by Cato that, under the right reserved to the British Government to impose such duty as may be sufficient to countervail, or, which is equivalent, to balance the difference of duty payable on the importation into our ports of Asiatic or European goods by American or by British vessels, our ships will be thrown out of the trade with the British European dominions; because, under this right, the British Government will impose a duty on our productions carried to their ports in our own ships equal to the whole duty payable on the goods and merchandises imported into our ports by British ships; and as the goods and merchandises which we receive from them exceed in value those that they receive from us by one third, and as the duty to be countervailed is at least ten per cent. ad valorem on the goods received from them, the consequence will be, that the countervailing duty must amount to fifteen per cent. on the value of all our productions carried in our own ships to the British ports in Europe, while the same will be free in British ships. A more extravagant construction, or an argument more inaccurately formed, can scarcely be imagined.
The countervailing right is not applicable to the whole duty payable on goods and merchandises imported into our ports in British ships, but expressly confined to the difference of duty now payable on the same when imported by American or by British vessels. This difference is one tenth part of the duty upon all European goods—that is to say, these goods pay one tenth part more duty when imported in British vessels than is paid on the same when imported in an American vessel. In all cases, therefore, where our impost is ten per cent. ad valorem, the difference of duty to be countervailed amounts to only one per cent. on the value of the goods, instead of ten per cent., as is alleged by Cato; in the instance of teas imported from Europe the difference is greater. Again, it is not an aggregate sum that is to be apportioned under this countervailing right, for this sum would be liable to constant variation, according to the quantity and species of goods imported into our ports from time to time by British vessels; and besides, the British Government possess no means whereby the amount thereof could be ascertained.
Cato feels and admits the force of these remarks as decisive against an average duty, without perceiving that they possess equal strength against his project of countervailing the whole duty paid on the importation of goods and merchandises into our ports by British vessels; for the same variation in the amount, and the same want of the means to ascertain it, will operate in both cases. The reasons which he himself employs to prove that an average duty cannot be ascertained, equally show the impracticability of the method which he considers as the one that will be employed in the execution of the countervailing right reserved to the British Government. It has before been stated that the natural, as well as the equitable, mode of executing this power will be to impose a duty on the goods imported by us from their European ports exactly the same as makes the difference of duty on the importation thereof into our ports by American or by British vessels.
Admitting that the execution of the countervailing right reserved to Great Britain will do no more than place the navigation of the parties on an equal footing in their mutual intercourse, still we are told that for this, likewise, the treaty is blamable, because even equality will be such an advantage to our rival, that we shall be unable to maintain the competition.
This objection brings with it a quality rarely to be discovered in the opinions of the cavillers against the treaty. Their usual error is a false and magnified estimate of the comparative resources, strength, and importance of our country; in this instance, shifting their ground, they fall into the opposite extreme, and contend for our inferiority in a branch of business in the prosecution of which we are unquestionably able to meet a fair competition with any nation.
With what propriety could we have proposed or expected an adjustment of our intercourse by which our vessels should have been placed on a better footing than those of the other party? As the trade was mutually beneficial, why could we, more than Great Britain, ask for an arrangement that should subject our rival to comparatively heavier burdens? Does any considerate man believe, that it would have been proper for us to ask, or that there is the least probability that Great Britain would have acceded to, an arrangement on the subject of our mutual navigation, that should have secured to us advantages denied to them? To place the navigation of the parties on an equal footing, was all that could be rationally expected by either; and so far from such a settlement being injurious to us, the contrary has long been the opinion both here and in Great Britain. If it is true that we are unable to maintain a competition with the British navigation, how are we to account for the jealousy [that is understood] to have shown itself on their part on this subject.
But the fact is otherwise—British ships cannot be built and equipped as cheap as American ships, nor are they victualled and manned on as good terms. Our country abounds with excellent materials for ship-building. Great Britain is in a great measure dependent upon other countries for a supply of them. The materials for the construction of ships are much cheaper in America than in Great Britain; and intelligent characters in Great Britain as well as in America have affirmed, that an American merchantship of any given burthen can be built and equipped for sea one third cheaper than a British, Dutch, or French ship of equal goodness. Mr. Coxe informs us, that the cost of an American ship, built of our live oak and cedar, is from 36 to 38 dollars per ton, completely finished; while an oak ship in the cheapest part of England, France, or Holland, fitted in the same manner, will cost from 55 to 60 dollars per ton. The capital employed on the American merchantmen is therefore one third less on any given amount of tonnage than that employed in the same amount of British tonnage; or the money requisite to build and equip for sea two British merchantships, will be sufficient to build and equip for sea three American merchant-ships of the same burthen and of equal goodness. It is not only the difference in the first cost, but to this should be added the difference of interest and insurance, the annual amount whereof is ascertained by the value of the ships.
If we add to this the comparative advantages that we possess in victualling and manning our vessels, independent of the acknowledged and distinguished skill and enterprise of our seamen, it may be safely affirmed, that no American who knows the character of his countrymen, and who is not ignorant of our peculiar resources for ship-building, will doubt our superiority in an equal and fair competition with any other nation.
It is further alleged, that the treaty wants reciprocity, inasmuch as the whole territory of the United States is laid open to the British navigation and commerce, while in return, the British territories, in Europe only, are open to us. The short answer to this allegation is, that it is not true. All the British territories in Europe are laid open to us; all their territories in Asia are also opened to us; the treaty likewise opened all their territories in the West Indies. The article relative to this branch of trade, as has already been observed, is excepted from the ratification of the treaty, and made the subject of future negotiation. The British territories on our continent, that of the Hudson’s Bay Company excepted, are also opened to us in like manner as ours are opened to them. The intercourse is confined on both sides to the interior communications, the inhabitants of those colonies being equally destitute of a right to resort, by sea, with their ships to our ports and harbors, as we are of the right to resort, by sea, with our ships to their ports and harbors.
The territory of the Hudson’s Bay Company, the island of Newfoundland, and the establishments on the coast of Africa, are the only British dominions to which the treaty, in its original form, does not give a right of intercourse and trade.
The settlement in the Bay of Honduras is on Spanish lands, and the right of precedence is conceded for specified objects, beyond which the Spanish Government are vigilant to restrain the settlers.
Spain may possibly be induced to allow us a right in common with Great Britain to cut mahogany and dye-woods in this region; but Great Britain cannot, consistently with her convention with Spain, share with us the privilege that she enjoys.
Newfoundland is a mere establishment for the British fisheries. The African trade has been, and might hereafter be, pursued, if our humanity and the force of public opinion did not impede it, without procuring a right to resort to the British ports in that quarter; and in respect to the unsettled territory of the Hudson’s Bay Company, about which so much has been noticed and written, it is of no sort of importance, except in a small Indian trade that employs two or three annual ships, which arrive there in August and escape in September; besides that, this trade belongs to a company who possess a right to the exclusive enjoyment of it even against their fellow-citizens. It is finally alleged that the treaty will bind up and restrain our Government from making more specific and beneficial treaties of commerce with other nations.
Those who urge this objection have generally placed great reliance on another objection, which asserts that the treaty with Great Britain violates the Constitution, because it amounts to a regulation of commerce, the power to regulate which is vested in Congress and not in the Executive. Yet these very characters, in the next breath, maintain that the treaty is bad, because it precludes our Executive government (for no other power can make treaties) from making more minute and beneficial commercial treaties with other nations. If these observations can be reconciled, it must be thus: the Constitution does not authorize the Executive, with the aid of the Senate, to make a commercial treaty with Great Britain, having vested in Congress the power to regulate the trade between us and that nation; but it allows the Executive to make commercial treaties with any other nation, which may establish the most material and minute commercial and revenue laws, without affecting the power vested in Congress to regulate trade. That we may have characters among us sufficiently intemperate to wish that such was the Constitution, I am not prepared to deny; but that such a construction can be made out, yet remains to be proved.
The objection, as usual, is made in a loose and inaccurate manner; literally interpreted, we should infer that the treaty contained an article, whereby we had agreed with Great Britain that we would not form any future treaties of commerce with any nation; but no such stipulation exists.
Is it meant by the objection to be alleged that we can form no commercial treaty, whereby, for an advantage yielded on our part, we may acquire a privilege in return, unless we yield the same advantage to Great Britain gratuitously and without receiving from her the equivalent?
Admitting the truth of this objection, it might be replied: So, on the other hand, Great Britain can form no commercial treaty, whereby, for an advantage yielded on her part, she may acquire some privilege in return, unless she yields the same advantage to us gratuitously and without receiving from us the equivalent; and as Great Britain, whose commercial relations are equally extensive with ours, and whose capital far exceeds ours, is equally restrained on this point, our chance of gain would be fully equal to our chance of loss.
But the allegation is not generally true, and the objection, when examined, will be found to be of little weight, even with those who may imagine that nations do sometimes make good bargains by the purchase of privileges and exemptions in their foreign trade. The case that has been chosen to enforce the objection, shall be employed to invalidate it.
Admit that the treaty with Great Britain is in operation; that the oil and provision merchants of the United States, and the wine and brandy merchants of France are desirous of a treaty between the two countries, whereby those commodities shall be received from each other on low duties or freely; admit further, that the governments of the two nations are disposed to make such a treaty (this is the case again put by the opposers of the treaty as impracticable), what will restrain the conclusion of this treaty? The disadvantage that will arise from our treaty with Great Britain? No; for Britain produces neither wines, nor brandy made from wines, with which she could supply us; she therefore could gain nothing, nor should we lose any thing, by the conclusion of such a treaty. All that will be requisite, therefore, in the formation of such treaties, will be to choose for the purpose such articles of the growth, manufacture, or produce of any country with whom we desire to treat, as are not common to it and the British dominions, and any skilful merchant will quickly make the selection. Hence it appears that the objection is not well founded in point of fact.
But though it may be practicable, will it be politic in us to conclude no commercial treaties of this character with any nation? If we resort to precedents as guides, we shall discover few, the history of which would encourage us. Indeed, they are a description of conventions not often formed between nations.
They are of difficult adjustment, and necessarily increase the provisions of the commercial code, sufficiently intricate, when only one rule prevails in respect to all nations. Besides, however perfect may be the right of nations in this respect, yet, when the productions of one nation are received at lower duties than the like productions of another, the discrimination will scarcely fail to awaken desires and to produce dissatisfaction from their disappointment.
Again, unless we are prepared, at the expense of the whole, to procure advantages or privileges for a part of the community, we shall doubt the policy of such stipulations. Between two manufacturing nations, in each of which the manufactures have attained to great perfection, a tariff of duties may be established by treaties, in the payment of which the manufactures of the two countries might be freely exchanged and mutually confirmed; such was the commercial treaty between France and Great Britain in the year 1786. But the subject was so intricate and involved such a variety of apparently independent circumstances, such as the price of provisions, the amount and the manner of levying of the taxes, and the price of the raw materials employed in their respective manufactures, that neither party felt entire confidence in the equity and reciprocity of the treaty; and with all the skill in negotiation, that France in a superior degree has been supposed to have possessed, the opinion of that nation has finally been, that the treaty was burdensome and disadvantageous to them.
We have another specimen of this species of treaty in a short convention between England and Portugal, concluded in 1703. The object was to procure a favorable market for dissimilar commodities, and such as were not the common production of the two countries. But this treaty, which has been so much applauded, is essentially defective in point of reciprocity. England agrees to admit the wine of Portugal on payment of two thirds of the duty that shall be payable on French wines; and in return, Portugal agrees not to prohibit the English woollens. She does not agree to receive them exclusively of the woollens of other countries, nor to admit them on payment of lower duties. The advantage, therefore, is manifestly on the side of Portugal. By the treaty of commerce between France and Great Britain, concluded in 1786, it was agreed, that the wines of France imported into Great Britain should pay no higher duties than those which the wines of Portugal then paid. The consequence must have been a reduction, without compensation or equivalent from Portugal, of the existing duties on the wines of that country brought into Great Britain, equal to one third of the amount of such duties. This is an instance of inconvenience and loss, resulting from the species of treaties, which it is alleged as an objection to the treaty concluded between us and Great Britain, that we are prevented by it from making with other nations.
A small compact nation, likewise, who excel in some one species of manufacture that is established throughout their territory, and in the conducting and success whereof there is a common interest, may find it useful to procure the exclusive supply of some foreign market; provided, in this as in all other bargains, the compensation shall not be too high. But in a nation like ours, composed of different States, varying in climate, productions, manufactures, and commercial pursuits, it will be more difficult to enter into treaties of this kind. Should Great Britain, for example, be inclined to admit our fish-oils freely, or on payment of low duties, on condition that we would receive their woollens or hardware freely, or on payment of low duties, would the Middle and Southern States be satisfied with such a treaty?—would they agree to a tax on their estates sufficient to supply the deficiency in the revenue arising from the relinquishment of the impost on British woollens or hardware? Would it not be said that such a tax was a bounty out of the common treasury, on a particular branch of business pursued alone by a portion of the citizens of a single State in the Union? Instances might be multiplied in the illustration of this subject; but they will readily occur to every man who will pursue a little detail in his reflections. We have once made an experiment of this kind; its fate should serve as a caution to us in future. By the eleventh and twelfth articles of our treaty with France, it was agreed that France should never impose any duty on the molasses that we should import from the French West Indies; and in compensation of this exemption, that we should never impose any duty on the exportation of any kind of merchandise by Frenchmen, from our territories, for the use of the French West Indies. These articles produced much dissatisfaction in Congress: it was said to be a benefit that would enure to the use and advantage of only a part, but which must be compensated by the whole. Those arguments which will show themselves in future, should similar conventions be formed, were displayed on this occasion. The treaty was ratified; Congress applied to the king of France to consent to annul these articles; this request was granted; and the articles were, by the several acts of the parties, annulled.
Not only the few instances of the existence of these treaties among the nations, added to the peculiar difficulties which we must meet in their formation, should lead us to doubt their utility, but also the opinion of our own country, which, if explicit on any point, has been repeatedly so in the condemnation of this species of national compact.
The introductory article of our commercial treaty with France asserts, that the parties willing to fix in an equitable and permanent manner the rules which ought to be followed relative to their correspondence and commerce “have judged that the said end could not be better obtained than by taking for the basis of their agreement the most perfect equality and reciprocity, and by carefully avoiding all those burdensome preferences which are usually sources of debate, embarrassment, and discontent.”
The same language is employed in our subsequent treaties with Holland and with Sweden; the public voice is unequivocal on this subject.
On the whole, the more closely this question is examined the more doubtful will the policy appear of our entering into treaties of this description. We shall have to encounter not only the intrinsic difficulties that always attend a fair and precise adjustment of the equivalents, together with the national discontents that proceed from errors on this point; but, moreover, a still greater embarrassment from the circumstance that our great staple exports are not the common productions of the whole Union, but different articles are peculiar to different parts thereof. If, notwithstanding, our Government shall discover an instance in which, consistent with the common interest and sound policy, such a treaty might be desirable, we have scope sufficient to form it without incurring loss or disadvantage by the operation of our treaty with Great Britain.
The sixteenth article is entirely conformable to the usage and custom of nations. The exchange of consuls had already taken place between us and Great Britain; and their functions and privileges being left to the definition of the law of nations, we shall be exempt from those unpleasant controversies that too often arise from special conventions, which enlarge the consular privileges, power, and jurisdiction.
The agreement that either party may punish, dismiss, or send back a consul for illegal or improper conduct, is calculated to prevent national misunderstandings, and to secure a respectful deportment in the consular corps. I have not observed that this article has been disapproved of from any quarter.
The seventeenth article, which respects the capture and detention of the vessels of the parties on just suspicion of having on board enemy’s property, or contraband of war, has been the object of intemperate censure—with how much justice it shall be the business of this paper to examine.
The principal complaint is, not that the article exposed our own property to loss by capture, for this is not the case, but that it does not protect enemy’s property on board our vessels. The defence of the article will rest upon the proofs which shall be exhibited, that it is in conformity with, and supported by, the clear and acknowledged law of nations—that law which pronounces that enemy’s goods on the high seas are liable to capture, and as a necessary means to this end, that neutral ships are there liable to examination or search.
The law of nature (as heretofore observed), applicable to individuals in their independent or unsocial state, is what, when applied to collections of individuals in society, constitutes the natural or necessary law of nations. An individual in a state of nature, for reparation of injuries, or in defence of his person and property, has a right to seize the property of his enemy, and to destroy his person.
Nations always succeed to the rights that the individuals who composed them enjoy in a state of nature; and hence it is that by the law of nations, from the earliest annals of society, the goods or property of one enemy have been considered as liable to be seized and applied to the use of another. This right must be so used as not to injure the rights of others; subject to this limitation, it is perfect, and an interruption of it by another is an injury. As in a contest between two individuals in a state of nature, no third has a right, without becoming a party in the controversy, to protect the property or defend the person of either of the parties; so in a war between two nations, no third nation can act out of its own jurisdiction, consistent with the duties of neutrality; or, without becoming a party in the war, protect the property of, or defend, either of the parties. Though nations are, in respect to each other, like individuals in a state of nature, the resemblance is not in every particular perfect. Individuals in a state of nature have not only the inferior dominion or private ownership of property, but the entire and perfect dominion over it. In society the latter right belongs exclusively to the nation, while the former belongs to the several members that compose it. Immovable things, such as lands, which are denominated the territory of a nation, are the immediate and special objects of this perfect dominion or paramount property. Movable things are the proper objects of inferior dominion or private ownership, and are not otherwise the objects of the national or paramount property than as they happen to be within its territorial limits. The perfect dominion or jurisdiction of a nation, in respect to property, extends over, and is bounded by, the lands thereof and the waters appurtenant to the same.
As soon, therefore, as movable things pass out of these limits, they cease to be under the dominion or jurisdiction of the nation, the private property of whose members they may be.
This private property, in movable things, may be enjoyed within the territory of a nation, by those who are not members thereof. Hence in a war between two nations, a member of one of which owns movables within the territory of a third or neutral nation, such movables or property are not liable to seizure by reason of the war; because, being within and under the exclusive jurisdiction of a third nation, it would be an injury to the right of such nation to go there and seize the same. So long as such movables remain within a foreign territory, they are objects of its dominion and protection; but as soon as they are carried out of the same, they cease to be any longer under its jurisdiction or protection.
In a war between two nations, all the members of each are enemies to the other, and all the property of the several members, as well as the strictly national property, is liable to seizure. In general the character of the owner, whether enemy or friend, decides whether property is liable to capture by reason of war; but the validity of the capture depends not only on the goods being enemy’s property, but likewise on the fact that the place of capture is one in which the right may be exercised without injury to the rights of a neutral nation. Hence the property of an enemy is liable to capture only within the respective territories or jurisdiction of the belligerent nations, or in a place not within the territory or jurisdiction of any nation. In either of these places the right may be exercised without injury to the rights of neutral nations. The limitation of this right, so far as respects enemy’s property found within the territory of one of the parties on the breaking out of war, has before been discussed, and placed, I flatter myself, on solid principles.
The main ocean not being within the territory or subject to the exclusive dominion of any nation, is a place where enemy goods may lawfully be captured. An impediment by any third nation to the exercise of the right of capture on the ocean by either of the belligerent parties, would be an injury.
As the goods of an enemy, within the territory of a neutral state, are under the protection thereof, the law of nations, for the reasons that have been stated, will not permit us to take them; in like manner, we have no right to take them if they are on board a ship, whilst the ship is in a neutral port, whether the ship itself is a neutral one, or belongs to an enemy, because the port is a part of the territory. When the goods of an enemy are on board the ship of an enemy, and the ship is in the main ocean, there is no doubt of our right to capture both the goods and the ship, because they are then in a place which is not the territory of any nation. But when the goods of an enemy are on board a neutral ship, and the ship is in the main ocean, though we have a right to take the goods, we have no right to take the ship, or to detain her any longer than is necessary to obtain possession of the goods; for the ocean itself is not territory, and neutral ships, as they are movable goods, can not be parts of the neutral territory, and consequently are no more under the protection of the neutral state than the same goods would be if they were passing through an unoccupied country in neutral carriages or on neutral horses.
A neutral ship (says Rutherforth in his Institutes, whose reasoning on this question I adopt) may indeed be called a neutral place; but when we call it so, the word place does not mean territory, it only means the thing in which the goods are contained. Though the goods of the enemy had been on board a ship belonging to the enemy, we might have said, in the same sense, that they were in a neutral place, if they had been locked up there in a neutral chest. But no one would imagine that such a neutral place, as a chest, can be considered as a part of the territory of the neutral state, or that it would protect the goods. Notwithstanding, a neutral chest is as much a neutral place as a neutral ship.
A ship, though a movable things, is under the jurisdiction of a nation whilst it continues in one of its ports; but as soon as it is out at sea, only the private ownership, or inferior dominion, of the ship remains, and it ceases to be under the dominion or jurisdiction of the nation. The case will be the same if, instead of supposing the ship to be the property of a merchant, we suppose it to be the property of the nation.
For though we cannot well call the property which the nation has in such a ship by the name of private ownership, yet, when the ship comes into the main ocean, the jurisdiction or paramount property ceases, and the right that remains is an inferior kind of property, which has the nature of private ownership. If the jurisdiction which a neutral state has over the ships of its members, or even over its own ships, ceases when the ships are out at sea, the goods of an enemy, that are on board such ships, cannot be under the protection of the nation in the same manner as if the ships had been in one of its ports, or as if the goods had been on its land.
Notwithstanding a neutral nation, when its ship is in the main ocean, has no jurisdiction over the ship itself, as if it was a part of its territory, yet the nation, or some of its members, which is the same thing, will continue to have the inferior sort of property or ownership in it. This species of property will protect the ship from capture, though the enemy’s goods on board her may lawfully be taken.
But here a difficulty occurs. This inferior kind of property, called private ownership, to distinguish it from the jurisdiction over things, is an exclusive right; those who have such ownership in things, whether private or public persons, have a right to exclude all others from making use of such things; and by this means, the rights of others are often hindered from taking effect.
Wild beasts, birds, and fishes are, till they are catched, in common to all mankind; and I, in common with others, have a right to take them, and thereby to make them my own. But I cannot hunt, or shoot, or fish, without perhaps sometimes using the soil or water of another man; and as I have no right to use these without his consent, he may justly hinder me from doing any of these acts, as far as his right of property extends. Thus by private ownership I am prevented from taking such things as I should otherwise have a right to take, if they did not happen to be in such places as he had an exclusive right to. In like manner, though I have a right to take the goods of my enemy, when they are out at sea, yet may not the effect of this right be prevented by the inferior property or ownership which a neutral nation, or its members, have in the ship in which the goods are? If the law of nations is nothing but the law of nature applied to the collective persons of civil societies, instead of saying that the law of nations has decided otherwise, we should disclose a natural reason why it should determine otherwise. When I have merely a right to acquire property in a thing that is common to all mankind, but cannot do it without the use of what is already the property of some other man, this man neither does me an injury, nor encourages or protects others who have injured me, by excluding me from the use of what belongs to him. But when we have a right in war, upon account of the damage which the enemy has done us, to take goods of the enemy, and these are in a neutral ship, if the neutral state, though it has property to protect the goods against us, this protection makes it an accessory to the injury, which is the foundation of the claim upon the enemy to obtain reparation of damages, and consequently is inconsistent with the notion of neutrality.
But whilst this answer removes one difficulty, it brings another. If a neutral nation makes itself accessory to the damages done by the enemy, by protecting such enemy’s goods as she has a right to take for reparation of damages, when these goods are out at sea in one of its ships, why might not the same nation, without becoming in like manner an accessory, protect the same goods when the ship is in one of its ports, or when the goods are on land within its territory? A law of nations, which is natural as to the matter of it, and positive only as to the objects of it, will furnish an answer to this question.
Every State has, by universal acknowledgment and consent, by the law of nations, an exclusive jurisdiction over its own territory. As long, therefore, as a State keeps within its own territory, and exercises its jurisdiction there, the protection in question is not a violation of our rights; but when its ships are in the main ocean, as they are then in a place out of its territory, where, by the law of nations, it has no jurisdiction, this law will allow us to take notice of the protection which it gives to the goods of an enemy, and to consider it as an accessory to the damages done by the enemy, if it gives them protection.
In respect to the right of examination or search, if the end is lawful, and the examination or search a necessary mean to attain this end, the inference is inevitable, that the examination or search is likewise lawful.
If the question, whether enemy goods are seizable on board a neutral ship, were really doubtful, yet the right to search neutral ships must be admitted for another reason. All agree that arms, ammunition, and other contraband articles may not be carried to an enemy by a neutral power; without searching vessels at sea, such supply could not be prevented. The right to search, therefore, results, likewise, from the right to seize contraband goods. Again, the state of war authorizes the capture of enemy’s ships and goods; but on the main ocean, which is the great highway where the ships and goods of all nations pass, how are the ships and goods of an enemy to be distinguished from those of a friend? No other way than by examination and search. Hence, then, the right of search is deducible from the general right to capture the ships and goods of an enemy.
It would undoubtedly disembarrass the commerce of neutral nations were passports and ships’ papers received, in all cases, as conclusive evidence of the quality and property of the cargo. And did treaties, in fact, effectually secure an exemption from rude and detrimental inquisitions upon the ocean, they would become objects of inestimable worth to the neutral powers. But, notwithstanding the existence of stipulations in our other treaties [which aim at giving some force to similar credentials], can it be said that our ships have been visited with less ceremony by one party than by the other? And may not the experience of other nations, as well as that of our own, be appealed to, in proof of the opinion, that these stipulations, however exact and positive, are too little regarded by that class of men, to restrain and govern whose conduct they are instituted?
The right of search ought to be used with moderation, and with as little inconvenience as possible to the rights of nations not engaged in the war. And the law of nations, on the other hand, requires the utmost good faith on the part of the neutral powers. They are bound not to conceal the property of the enemy, but, on the contrary, to disclose it when examination shall be made; in confidence of this impartiality, the law of nations obliges the powers at war to give credit to the certificates, bills of lading, and other instruments of ownership produced by the masters of neutral ships, unless any fraud appear in them, or there be good reason for suspecting their validity. The right of search is [always] at the peril of those who exercise it; the right, notwithstanding [must be acknowledged] to be indubitable.
The reasoning employed to prove that all neutral ships on the main ocean are liable to search, and enemy goods on board them to capture, is supported by the ablest writers on public law, and their decision is believed to be unanimously in its favor.
The Italian states were the first among modern nations who cultivated the interests of commerce, and before the passage of the Cape of Good Hope, Venice and Genoa distributed the manufactures of Asia throughout Europe. They, therefore, first defined the rights of navigation. Their maritime regulations are collected in a work called Consolato del Mare; I do not possess the collection, but find the following quotation from it in Grotius.
“If both the ship and freight belong to the enemy, then, without dispute, they become lawful prize to the captor; but if the ship belong to those that be at peace with us, and the cargo be the enemy’s, they may be forced by the powers at war, to put into any of their ports, and unlade; but yet the master must be satisfied for the freight of them.“
Grotius, that learned and persecuted friend of liberty, whose life and great talents were dedicated to the service of mankind, and who displayed so much ability and learning in defending the freedom of the seas and of commerce, is clearly of opinion that enemy goods are not protected by neutral bottoms; he even goes further, and allows that such property occasions great presumption that the vessel is, likewise, enemy property. Bynkershoek is of the same opinion. Puffendorf and Heinecius agree in this law; and Vatel, who is the latest writer, is explicit in his opinion. “Without searching neutral ships at sea,” says he, “the commerce of contraband goods cannot be prevented—there is then a right of searching. Some powerful nations have, at different times, refused to submit to this. At present a neutral ship refusing to be searched would, from that proceeding alone, be condemned as lawful prize.” “Effects belonging to an enemy, found on board a neutral ship, are seizable by the rights of war; but by the law of nature, the master is to be paid his freight, and not to suffer by the seizure. The effects of neutrals, found on board an enemy ship, are to be restored to the owners, against whom there is no right of confiscation.”
Other authors of respectability might be quoted; but those already named will be acknowledged as the ablest, and their authority the most decisive of any that can be cited. So strong, clear, and uninterrupted, are the authorities of the writers on public law in relation to these points, that the advocates of an opposite rule may be challenged to produce a single authority of approved respectability in support of their opinion.
Admitting that it was the law of nations that enemy’s goods might be seized in neutral ships, it is alleged by Cato and other writers, who have appeared on the same side, that the treaties which have been formed between nations have annulled this law, and established another in its stead, equally extensive and binding on the whole civilized world.
In discussing this allegation, we should remember that all nations are in a state of equality, and independent of each other. No law, other than the necessary or natural law of nations, is binding on any nation without its consent, expressly or tacitly given. A law among nations cannot, like a civil or municipal law, be annulled, or enacted by a majority, or any portion short of the whole. By agreement between two or more nations, the operation of a law already in existence may be suspended so far as respects themselves; but such agreement works no change of such law, in relation to the rights or duties of other nations. The same is true of any rule of action established by convention between two nations; such rule is obligatory on the parties that form the contract, but is wholly without effect and nugatory in respect to all other nations. Unless, then, all nations have concurred in the design to annual this law, it must still exist; and treaties containing opposite stipulations can be considered in no other light than as exceptions to the same, in which certain nations have seen it their interest to agree.
Though one nation may have agreed with another to suspend the operation of this law, and to substitute the rule that free ships make free goods, and enemy ships enemy goods, there may have been some peculiar reason that induced the parties to form this convention with each other, that would not apply in respect to any other nation.
A nation may advance its interest perhaps by forming such a treaty with one nation, and injure it by forming it with another. Because a nation has, in some instances, or for a limited time, formed stipulations of this sort, it cannot from thence be inferred that it has thereby, in any sense, expressed its consent to a total repeal of a law, the operation of which it has agreed to suspend only for a limited time, and in respect to a particular nation. Commercial treaties, in which we discover these stipulations, though not always, are commonly limited in their duration. This limitation is a strong argument against the doctrine which these treaties are cited to establish. For so many years, say the parties, we will suspend the operation of the law. When the treaty expires by its proper limitation, or is dissolved by war, the rule of the treaty ceases, and the law is again in force between the parties, and prescribes to them, in common with other nations, their rights and duties in this respect.
The law of nations, that authorizes the capture of enemy goods in neutral ships, requires the restoration of neutral goods captured in enemy ships; the treaties, which stipulate that free ships make free goods, stipulate also that enemy ships make enemy goods. I have discovered no instance of the former stipulation that has not been accompanied by the latter; though I have found instances of the latter stipulation unaccompanied by the former. This is the case in the treaty of peace, commerce, and alliance between Spain and England, concluded at Madrid, in 1667. Those, therefore, who contend that the law of nations has been repealed in one instance, must also insist that it has been repealed in the other. If the number of stipulations is to be received as evidence, the proof is stronger of a repeal in the latter than in the former case. But will any one seriously maintain, that a nation would have a right to confiscate the goods of a neutral power found on board an enemy ship, without an express stipulation on the part of such neutral state consenting to the same? Would England or Spain, for example, have a right to confiscate American property captured in a French ship? Would America, if at war, have a right to confiscate the neutral property of Spain, Portugal, Denmark, or Russia, found on board an enemy ship? Has any nation ever confiscated property under this circumstance? If not, the inference is clear, that these stipulations are exclusively relative to the parties who form them, and that the rights of other states remain under the protection of the law of nations.
But, according to Cato, this reasoning may be just, yet inapplicable; for he maintains that all nations have consented to the establishment of this conventional law. “As far back as 150 years,” says this writer, “and ever since, I find that the commercial nations have stipulated in their treaties, that free ships shall make free goods, that full credit shall be given to ships’ papers, and that armed vessels shall not come within cannon shot of a neutral ship, but send their boats on board with only two or three men at most, to examine papers, but not to search, and that the treaties (by which is understood all the treaties) for 150 years back, relative to this object, are drawn in the words of the treaty between the United States and France.”
Struck with the fulness of this assertion, I have carefully examined such collections of treaties as I have been able to procure, and going back to the year 1645, I have given a patient search to all the public conventions between Great Britain and the several powers of Europe since that period. I find that, since that epoch, Great Britain has concluded commercial treaties with Spain, Portugal, France, Holland, Dantzic, Denmark, Sweden, and Russia.
In the treaties with Holland and with France, she has agreed to the stipulation, that free ships shall make free goods, and enemy ships enemy goods. In Chalmers’ collection of treaties, a similar stipulation is contained in the 23d article of the treaty of alliance, concluded in 1564, between Oliver Cromwell and the king of Portugal; but in other collections in which that treaty is found, it does not contain a stipulation that free ships shall make free goods; and it has been denied, from a reputable quarter, on the part of Great Britain, that she has ever acceded to this principle, except in the instances of her treaties with Holland and France; neither of which exist any longer, the former having expired long since, and the latter being dissolved by the present war. Her treaties with Spain, Dantzic, Denmark, Sweden, and Russia, do neither of them contain this stipulation. On the contrary, the 12th article of the treaty with Sweden, and the 20th of the treaty with Denmark, each of which is now in force, and has been so for more than a century, as likewise the 14th article of the treaty with Dantzic, declares, that “lest the enemy’s goods and merchandise should be concealed under the disguise of the goods of friends, it is stipulated, that all ships shall be furnished with passports and certificates, by which it shall be manifest to whom the articles, composing the cargoes, belong”; and the two first of these treaties, moreover, declare it “to be injurious to protect the property of enemies,” and establish special guards to prevent the same.
In relation to the full credit to be given to ships’ papers, and the manner of boarding neutral vessels,—in the treaties with Spain, France, and Holland, it is stipulated, that full faith shall be given to the passports, and that the boarding shall be by two or three men only. But the treaties with Portugal and Russia are destitute of any stipulation on this subject, except that in the latter it is agreed, that “the searching of merchant ships shall be as favorable as the reason of the war can possibly admit, toward the most favored neutral nation, observing, as near as may be, the principles of the law of nations that are generally acknowledged.” In the treaties with Dantzic, Denmark, and Sweden, passports are required for the purpose of distinguishing, according to the solemnities of those treaties, the enemy property on board the ships of the parties; and it is stipulated, that credit shall be given to such passports, except in cases of just and urgent cause of suspicion, when, say these treaties, the ship ought to be searched. An exception, that fully recognizes the right to search, essentially does away with the security intended by the passports. But neither of these treaties contains any regulation relative to the manner of boarding neutral vessels.
This research, though made with care, may have been imperfect; the result thereof is, that there are only two, possibly three, of these eight nations, with whom Great Britain has ever agreed to the stipulation, that free ships shall make free goods; only three of them with whom she has stipulated, that full credit shall be given to passports or ships’ papers, or with whom the manner of boarding is settled. Instead, therefore, of that uniformity and universality in the stipulations in the commercial treaties, concluded within the last 150 years, so confidently asserted by Cato, we see that in five instances out of eight, of treaties concluded between Great Britain and the principal powers of Europe, within that term, they have on each of these points, given their sanction to a law directly in opposition to the assertion of this adventurous writer.
Yet, says Cato, “the principles of the armed neutrality, by the general consent of the great community of the civilized world, changed the law of nations.” It is a singular logic that proves the agreement of nations by their disagreement, and their consent to a principle, by their drawing forth their fleet to dispute it. The armed neutrality, with those who understand its history, will not be relied on by way of proving a change in the law of nations, brought about by universal consent.
It will not be denied that this league, which was aimed principally against Great Britain, failed to accomplish its purpose, and that it expired with the American war. Nothing has been heard of it during the present war; and it is notorious, that Russia, and Holland before its conquest, were under agreements incompatible with the views of that association. The northern powers of Europe under the countenance of France, united to support the principles of the armed neutrality; but the league did not include all the neutral powers; and of the powers engaged in the war, at that period, Spain consented to observe the principles contended for by the confederacy, on condition that Great Britain would agree to them, who, so far from agreeing, openly resisted them.
On the same principle, by which it is contended that this association introduced a new law of nations, might the armed leagues between certain nations to prohibit all commerce whatever with an enemy, be appealed to in proof of an alteration of the law of nations in this respect. England and Holland entered into such a league against France, in the year 1689; and other instances are mentioned by Grotius; yet no one has ever imagined that thereby any change was wrought in the law of nations.
The objection that has arisen from the dissimilarity between this article and those relative to the same subject in our other treaties, is equally defective with those already considered. The objection proceeds from an opinion that the law of nations has been changed, and that the stipulations in our other treaties are evidence thereof. The observations that have been offered on this subject are equally applicable to this objection, and it is therefore unnecessary to repeat them.
Not only reason, and the authority of jurists, but likewise the practice of nations, where they have been unrestrained by particular conventions, may be appealed to in support of this doctrine.
The practice of France, of Holland, even subsequent to particular stipulations, regulating this subject between themselves, has, in respect to other powers, been conformable to the law of nations. The ordinances and maritime decisions of France may be consulted to show what her practice has been, and that of Holland is evident by the convention of 1689, between her and England. The practice of Spain is understood to be the same; and in an instance that occurred during the American war, she carried the law to its utmost rigor, in assigning as a cause of condemnation of a neutral Tuscan ship, her forcible resistance of the right of search. Her capture of American ships, during the present war, on suspicion of their cargoes being enemy property, affords additional evidence of her practice and opinions on this subject. In respect to Great Britain, from the general notoriety of the fact, it seems, in some sort, unnecessary to add, that she has immemorially adhered, in her general practice, to the law of nations in its widest interpretation on this subject. In a few instances, and perhaps for special reasons, as was the case in respect to the treaty with Holland, concluded in 1667, she has entered into opposite stipulations; but at this time, unless it may be with Portugal, Great Britain has no such treaty with any nation.
So undisputed was the law on this subject, and so uniform the practice of nations in cases not governed by a conventional rule, that Congress in the commencement and through the greater part of our revolution war, authorized our ships of war and privateers to capture enemy property on board neutral ships, and our admiralty courts uniformly restored neutral property found on board enemy ships. This practice continued years after the conclusion of our treaty with France, which contains a stipulation, that free ships shall make free goods, and enemy ships enemy goods; no person, during that period, having supposed that thereby the law was altered in respect to other nations.
Towards the close of the war, to favor the views of the armed neutrality, in which league the United States were not a party, but whose opposition to Great Britain they naturally approved, Congress, in an ordinance on the subject of captures, ordained that neutral bottoms should protect enemy goods—but here they stopped. Thus far the authority was indubitable, because it was exercised only in abridgment of their own rights. Being engaged in war, they could not by their own act enlarge their rights, or abridge those of neutral ships; the extent of both being defined and settled by the public law of nations. They, therefore, never authorized the capture and condemnation of neutral goods found in enemy ships, nor could they have authorized the same, without a manifest violation of the rights of the neutral powers.
It is finally alleged that the article, if sound in its principles, is defective in those provisions which are requisite to protect and secure the neutral rights of the parties; inasmuch as it does not contain an explicit stipulation for the payment of freight on enemy goods, nor for the payment of damages for the detention or loss of neutral ships taken without just cause. I do not recollect to have met with any precise stipulations on these points, in the commercial treaties between other nations. None such, if my recollection be right, are found in any of our other treaties; and I think it would be somewhat difficult to form such as would afford to the parties a more satisfactory security than that which arises from the law of nations—a neutral ship is entitled to freight for enemy goods captured on board her; but this right, if so admitted, may be forfeited by the irregular conduct of the neutral, by the possession of false or double papers, by the destruction of papers, or by those fraudulent concealments and evasions, which are inconsistent with fair and impartial neutrality. A ship taken and detained without just cause, is, together with her cargo, at the risk of the captors from the moment of capture; and in cases of partial or total loss, or of damages by detention, the owner is entitled to full and complete indemnification. But in case the neutral ship is under such equivocal and doubtful circumstances as afford probable cause to believe that either the ship, or cargo, is enemy property, a situation not to be reconciled with an open and fair neutrality, in such case, though on trial both ship and cargo should turn out to have been bona-fide neutral property, yet the captors may avail themselves of her equivocal situation and character, in mitigation, if not, under very peculiar circumstances, in total discharge, of damages. No stipulation, therefore, without these exceptions, would have afforded to the parties adequate security against such irregularities; and with them, its want of precision would have left the subject as it now stands, to be regulated by the known and approved provisions of the law of nations.
These provisions being well understood, the article concludes with a stipulation against delays in the admiralty, and in the payment and recovery of the damages it shall decree.
This examination, I flatter myself, has fulfilled its object, which was to prove, that the article relinquishes no right that we possessed as a nation; that it is agreeable to, and supported by, the law of nations. A law in relation to this subject, coeval with the origin of maritime commerce, and the principles whereof have immemorially operated among nations.
It was desirable that a stipulation, similar to that contained in our other treaties, should have been obtained. But the time was unfavorable to the attainment of this object; and, as with great propriety has been observed by Mr. Jefferson, in behalf of our Government, “since it depends on the will of other nations as well as our own, we can only obtain it when they shall be ready to consent.” By the 12th article, the parties agree to renew the negotiation on this point, within the compass of two years after the conclusion of the present war; when perhaps the restoration of peace, and other circumstances, may prove more propitious to our views.
I resume the subjects of the two last papers for the sake of a few supplementary observations.
The objections to the treaty, for not containing the principle, “that free ships make free goods,” as being the relinquishment of an advantage which the modern law of nations gives to neutrals, have been fully examined, and, I flatter myself, completely refuted.
I shall, however, add one or two reflections by way of further illustration. A pre-established rule of the law of nations can only be changed by their common consent. This consent may either be express, by treaties, declarations, etc., adopting and promising the observance of a different rule, or it may be implied by a course of practice or usage. The consent, in either case, must embrace the great community of civilized nations. If to be inferred from treaties, it must be shown that they are uniform and universal. It can, at least, never be inferred, while the treaties of different nations follow different rules, or the treaties between the same nation and others vary from each other. So also as to usage. It must be uniform and universal, and, let it be added, it must be continued. A usage adopted by some nations, and resisted by others, or adopted by all temporarily and then discontinued, is insufficient to abolish an old, or substitute a new rule of the law of nations. It has been demonstrated that no consent of either description has been given to the rule, which is contended for in opposition to the treaty.
The armed neutrality, so much quoted, is entirely deficient in the requisite characters. Its name imports that it was an armed combination of particular powers. It grew up in the midst of a war, and is understood to have been particularly levelled against one of the belligerent parties. It was resisted by that power. There were other powers which did not accede to it. It is a recent transaction, and has never acquired the confirmation of continued usage. What is more, it has been virtually abandoned by some of the parties to it—and among these, by the principal promoter of it, the politic and enterprising Catharine. It is, therefore, a perversion of all just ideas to ascribe to such a combination the effect of altering a rule of the law of nations.
In most important questions, it is remarkable that the opposers of the truth are as much at variance with each other as they are with the truth they oppose. This was strikingly exemplified when the present Constitution of the United States was under deliberation. The opposition to it was composed of the most incongruous materials—the same thing is observable in relation to the treaty. And one instance of the contrariety applies to the rule cited above.
While some of the adversaries of the treaty complain of the admission of a contrary principle by that instrument, as the abandonment of a rule of the present law of nations; others, conceding that there is no such rule yet established, censure that admission as a check to its complete and formal establishment, and as a retrograde step from this desirable point.
The objection in this form is more plausible than in the other, but it is not less destitute of substance. If there has been any retrograde step, it was taken by the Government prior to the treaty. Authentic documents, which have been communicated by the Executive to Congress, contain the evidence of this fact.
Early in the year 1793, some British cruisers having stopped vessels of the United States, and taken out of them articles which were the property of French citizens, Mr. Genet, the then minister of France, in a letter of the 9th of July of that year, made a lively representation upon the subject to our Government, insisting, in a subsequent letter of the 25th of that month, in which he recurs to the same point, that the principles of neutrality established, that friendly vessels make friendly goods; and in effect, that the violation of this rule by Great Britain was a violation of our neutral rights, which we were bound to resent.
The reply of our Government is seen in a letter from our Secretary of State to that minister, of the 24th of July. It is in these terms: “I believe,” says Mr. Jefferson, “it cannot be doubted, but that by the general law of nations the goods of a friend, found in the vessel of an enemy, are free, and the goods of an enemy, found in the vessel of a friend, are lawful prize. Upon this principle, I presume, the British armed vessels have taken the property of French citizens found in our vessels in the cases above mentioned; and, I confess, I should be at a loss on what principle to reclaim them. It is true that sundry nations, desirous of avoiding the inconveniences of having their vessels stopped at sea, ransacked, carried into port, and detained under pretence of having enemy goods on board, have, in many instances, introduced, by their special treaties, another principle between them, that enemy bottoms shall make enemy goods, and friendly bottoms friendly goods; a principle much less embarrassing to commerce, and equal to all parties in point of gain and loss; but this is altogether the effect of particular treaty, controlling, in special cases, the general principles of the law of nations, and, therefore, taking effect between such nations only as have so agreed to control it.”
Nothing can be a more explicit or unequivocal abandonment of the rule, that free ships make free goods, and vice versa, than is contained in this communication. But this is not all. In the letter from Mr. Jefferson to our minister in France, of the 26th of August, 1793, instructing him to urge the recall of Mr. Genet, the subject is resumed; the position asserted in answer to Mr. Genet insisted upon anew, and enforced by additional considerations. Among other suggestions, we find these: “We suppose it to have been long an established principle of the law of nations, that the goods of a friend are free in an enemy’s vessel, and an enemy’s goods lawful prize in the vessel of a friend. The inconvenience of this principle has induced several nations latterly to stipulate against it by treaty, and to substitute another in its stead, that free bottoms shall make free goods, and enemy bottoms enemy goods. We have introduced it into our treaties with France, Holland, and Russia; and French goods found by the two last nations in American bottoms, are not made prize of. It is our wish to establish it with other nations; but this requires their consent also, is a work of time, and in the meanwhile they have a right to act on the general principle, without giving to us or to France, cause of complaint. Nor do I see that France can lose by it on the whole. For though she loses her goods when found in our vessels, by the nations with whom we have no treaties, yet she gains our goods when found in the vessels of the same and all other nations; and we believe the latter mass to be greater than the former.”
Thus, then, stood the business antecedent to the treaty. Great Britain, adhering to the principle of the general and long established law of nations, captures French property in our vessels, and leaves free our property in French vessels. We acquiesce in this practice, without even a remonstrance or murmur. The French minister complains of it, as contrary to the principles of neutrality. We reply that, in our opinion, it is not contrary to those principles—that it is fully warranted by the general law of nations; that treaties, which establish a different rule, are merely exceptions to that law, binding only on the contracting parties; that having no treaty of the sort with Great Britain, we should be at a loss on what ground to dispute the legitimacy of her practice. We do not simply forbear to oppose; we do not offer to France as an excuse for our forbearance, that it is inconvenient to us, at the moment, to assert a questionable right at the hazard of war, but we tell her peremptorily that, in our opinion, no such right exists, and that the conduct of Great Britain in the particular case is justified by the law of nations; neither do we wrap the motive of our forbearance in silence, nor content ourselves with revealing it confidentially to France alone, but we publish it without reserve to the world, and thus, in the presence of Great Britain, and every other nation, make a formal renunciation of the pretension, that “free ships shall make free goods, and enemy ships enemy goods”; no counter declaration is heard from either house of Congress.
It was impossible to give a more full sanction to the opposite principle than was given by this conduct, and these public and positive declarations of our Government. It was impossible more completely to abandon the favorite ground. It is puerile to attempt to discriminate between the force of this species of renunciation and that of an admission of its propriety by treaty. The conduct of a government avowed and explained, as to motives, by authentic public declarations, may assert or renounce a pretension as effectually as its compacts. Every nation, with whom we had no contrary stipulation, could say to us as well before as since the treaty with Great Britain: “Your Government has explicitly admitted that free ships do not make free goods, and you have no right to complain of our not observing that rule towards you.” Candor, therefore, would oblige us to say that the treaty has left this point where it found it—that it has only not obtained from Great Britain a concession in favor of an innovation upon the law of nations, which it is desirable to establish, but which cannot be claimed as matter of right. Though, therefore, it may not have the merit of strengthening, it has not the demerit of weakening, the ground.
The difference in our position, in this respect, before and since the treaty amounts to this, that before the treaty the Government had abandoned the ground through one organ, Mr. Jefferson; by the treaty, it continued the abandonment through another organ, Mr. Jay. If we consider the organ as the voluntary cause in each case (the presumption of which is equally fair in both cases), and if there be any blame, it falls more heavily on Mr. Jefferson than on Mr. Jay; for the former founded and made the retreat, and the latter only did not advance from the disadvantageous post to which he had retreated. In other words, Mr. Jay did only not recover the ground which Mr. Jefferson had lost. And we know that, in general, it is a far more difficult task to regain than to keep an advantageous position.
But, in truth, no blame can justly be imputed in either case. The law of nations was against the rule which it is desired to introduce. The United States could not have insisted upon it as matter of right; and in point of policy it would have been madness in them to go to war, to support an innovation upon the pre-established law. It was not honorable to claim a right, and suffer it to be infracted without resistance. It is not for young and weak nations to attempt to enforce novelties or pretensions of equivocal validity. It is still less proper for them to contend, at the hazard of their peace, against the clear right of others. The object was truly not of moment enough to risk much upon it. To use the French proverb, “The game was not worth the candle.“ In every view, therefore, it was wise to desert the pretension.
So, also, in the midst of a war, like that in which Great Britain was engaged, it were preposterous to have expected that she would have acceded to a new rule, which, under the circumstances of her great maritime superiority, would have operated so much more conveniently to her enemy than to herself. And it would have been no less absurd to have made her accession to that rule the sine quo non of an arrangement otherwise expedient. Here again the game would not have been worth the candle.
The importance of the rule has artfully been very much magnified, to depreciate proportionably the treaty, for not establishing it. It is to be remembered, that if something is gained by it, something is also given up. It depends on incalculable circumstances, whether, in a particular war, most will be lost or gained. Yet the rule is, upon the whole, a convenient one to neutral powers. But it cannot be pretended that it is of so great a value, as that the United States ought to adopt it as a maxim, never to make a treaty of commerce, in which it was not recognized. They might by this maxim forego the advantages of regulating their commercial intercourse in time of peace with several foreign powers, with whom they have extensive relations of trade, by fixed and useful conventional rules, and still remain subject in time of war to the inconveniences of not having established, with those powers, the principle to which they make that sacrifice.
Though, therefore, it be a merit to a certain extent in a treaty to contain this principle, it is not a positive fault or blemish that it does not contain it. The want of it is not a good cause of objection to a treaty otherwise eligible.
Let me add, too, in the spirit of Mr. Jefferson’s letter, that however it may be our wish to establish the rule with other nations besides those with whom we have already done it, this requires their consent also, of course their conviction, that it is their interest to consent; and that, considering the obstacles which lie in the way, the attainment of the object must be “a work of time.“ It presupposes, in some of the principal maritime powers, a great change of ideas, which is not to be looked for very suddenly. It was not, therefore, to have been expected of our envoy, that he was to have accomplished the point at so premature and so unfavorable a juncture.
The assertion, that he has abandoned it, is made in too unqualified a manner. For while he admits the operation for the present, of the general rule of the law of nations, he has, by the 12th article, engaged Great Britain in a stipulation, that the parties will, at the expiration of two years after the existing war, renew their discussion, and endeavor to agree whether in any and what cases neutral vessels shall protect enemy’s property. It is true, it will be in the option of Great Britain then to agree or not; but it is not less true that the principle is retained with consent of Great Britain in a negotiable state. So far perhaps some ground has been retrieved.
I confess, however, that I entertain much doubt as to the probability of a speedy general establishment of the rule, that friendly ships shall make friendly goods, and enemy ships enemy goods. It is a rule against which, it is to be feared, the preponderant maritime power, to whatever nation this character may belong, will be apt to struggle with perseverance and effect, since it would tend to contract materially the means of that power to annoy and distress her enemies, whose inferiority on the sea would naturally cause their commerce, during war, to be carried on in neutral bottoms. This consideration will account for the resistance of Great Britain to the principle, and for the endeavors of some other powers to promote it; and it deserves notice, that her last treaty with France was severely assailed by some of the chiefs of opposition, for containing a stipulation in favor of that principle. The motive for consenting to it, in this instance, probably was, that the stipulation was likely to be rendered, in a great degree, nugatory by the relative situation of the two nations, which, in almost any war in which one of the two was engaged on one side, would probably render the other a party on the opposite side.
If these conjectures be right, there is a reflection which lessens much the value of stipulations in favor of the rule; that so long as one or more of the maritime powers disavow it, there will be a strong temptation to depart from a scrupulous observance of such stipulations as we, in relation to France, have experienced in the present war.
In the course of the arguments against the 17th article, for virtually admitting the right of search in time of war, the objectors have had the temerity to cite the opinion of Vatel, as being opposed to that right; and a mutilated quotation has given an appearance of truth to the assertion. It has been heretofore shown, by passages extracted from his work, that his opinion, so far from denying explicitly, supports the right to search. But it may be useful to examine the part of it which has been tortured into a contrary inference.
After affirming the right of search (B. 3, chap. 7, 8, 14) he proceeds thus: “but to avoid inconveniences, violence, and every other irregularity, the manner of the search is settled in the treaties of navigation and commerce. According to the present custom, credit is to be given to certificates and bills of lading produced by the master of the ship.” Hence it is alleged the right to search is turned into the right of inspecting the ship’s papers, which, being entitled to credit, are to preclude further scrutiny.
But what immediately follows destroys this conclusion; the words “unless any ground appear in them, or there be very good reasons for suspecting their validity,” are subjoined to the clause just quoted. This admits clearly, that the ship’s papers are not to be conclusive, but that, upon just cause of suspicion, the papers may be disregarded, and the right of search may be exercised.
Who is to be the judge of the credit due to the papers and of the just cause of suspicion? Manifestly the officer of the belligerent party who visits the neutral vessel. Then what does the whole amount to? Merely this—that ship’s papers are entitled to a certain degree of respect and credit; how much, is left to the discretion of the officer of the belligerent party! who, if he be not satisfied of the fairness and validity of the papers, may proceed to their verification, by a more strict and particular search, and then if he still sees, or supposes he sees, just cause of suspicion, he may carry the vessel into a port of his own country, for judicial investigation. In doing this he acts at his peril, and for an abuse of his discretion, exposes himself to damages and other punishment.
This is the true and evident sense of Vatel, and it agrees with the doctrine advocated in these papers, and, I will add, with the treaty under examination.
The 17th article admits, that the vessels of each party, for just cause of suspicion of having on board enemy’s property, or of carrying to the enemy contraband articles, may be captured or detained, and carried to the nearest and most convenient port of the belligerent party, to the end that enemy’s property and contraband articles aboard may become lawful prize. But so far from countenancing any proceeding without just cause of suspicion, or from exonerating the officer of the belligerent party from a responsibility for such proceeding, it leaves the law of nations, in this particular, in full force; and contemplating that such officer shall be liable for damages, when he proceeds without just cause of suspicion, provides that all proper measures shall be taken to prevent delay in deciding the cases of ships or cargoes brought in for adjudication, or in the payment or recovery of any indemnification adjudged or agreed to be paid to the masters or owners of such ships. Besides which, the 19th article stipulates, in order that more abundant care may be taken for the security of the respective subjects and citizens of the contracting parties, and to prevent their suffering injuries by the men-of-war and privateers of either party, that the commanders of ships of war and privateers shall forbear doing any damage to those of the other party, committing any outrage against them; and that if they act to the contrary, they shall be punished, and shall also be bound in their persons and estates to make satisfaction and reparation for all damages, and the interest thereof, of whatever nature the said damages may be. And further, after establishing that the commanders of privateers shall, before they are commissioned, give security to satisfy all damages and injuries, it adds, that in all cases of aggressions their commissions shall be revoked and annulled.
These provisions not only conform to, and corroborate the injunctions of the laws of nations, but they refute the assertion, that the treaty is altogether deficient in precautions for guarding neutral rights; since those above-mentioned are among the most efficacious. It is not presumable that any stipulations have been or can be made which will take away all discretion from the marine officers of the belligerent parties; for this would be a total surrender of the rights of belligerent to neutral nations, and so long as any discretion is left, its right or wrong exercise will depend on the personal character of each officer; and abuses can only be restrained by the penalties that await them. Those stipulations of treaties, then, which reinforce the laws of nations as to the infliction of penalties, are the most effectual of the precautions which treaties can adopt for the security of neutral rights; and in this particular the treaty with Great Britain is to the full as provident as our other treaties. In one point I believe it is more so; for it expressly stipulates a revocation of the commissions of the commanders of privateers for the aggressions they may commit.
Is not the passage last cited from Vatel a true commentary on those stipulations, for regulating and mitigating the right of search, which are found in our own and other treaties? Do they not all intend to reserve to the belligerent party a right of judging of the validity and fidelity of the papers to be exhibited, and of extending the search or not, according to the circumstances of just suspicion which do or do not appear? and if this be their true construction, as it certainly is their construction in practice, which our own experience testifies, to what, after all, do they amount, more than without them the laws of nations, as universally recognized, of themselves pronounce? What real security do they afford more than the treaty with Great Britain affords?
It is much to be suspected, that there will always be found advantages essentially nominal, operating or not according to the strength or weakness of the neutral party; which, if strong, will find abundant foundation in the acknowledged laws of nations on which to rest the protection of its rights.
It has been said to be just matter of surprise, that these precautions should have no place in a treaty with Great Britain, whose conduct on the seas so particularly suggested and enforced every guard to our rights that could be reasonably insisted on. Observations of this kind assume constantly the supposition that we had it in our power to fashion every provision of the treaty exactly to our own taste, and that the ideas of the other contracting party were to have no influence even upon the minor features of the contract. But this supposition is absurd; and a treaty may still be entitled to our approbation, which adjusts acceptably the great points of interest, though in some of its details it falls short of our desires. Nor can any well-informed man sincerely deny that it was to have been expected, that an adjustment of the particulars in question would fall short of our ideas. It may be answered, that we were then at liberty not to make the treaty; so we were, but does it follow that it would have been wise to split on such points?—upon a just estimate, their intrinsic value is very moderate.
The eighteenth article of the treaty, which regulates the subject of contraband, has been grievously misrepresented; the objections used against it with most acrimony, are disingenuous and unfounded! Yet while I make this assertion, which, I flatter myself, I shall be able to prove, I shall not pretend to maintain that it is an article completely satisfactory. I even admit that it has one unpleasant ingredient in it, and I am convinced that our envoy must have consented to it with reluctance.
But while candor demands this concession, it equally admonishes us, that, under the circumstances of the moment, the points in this respect to be adjusted were peculiarly unmanageable; that the position of the other party rendered an arrangement entirely agreeable to us, impracticable; that without compromise nothing could have been regulated; that the article made no change for the worse in our prior situation, but in some particulars made our ground better; and that estimating truly the relative circumstances of the parties, there is no probability that any thing more acceptable could have been established.
I will add, that a degree of imperfection, which may fairly be attributed to this article, is far from being of such importance as, on solid calculations, ought to defeat the treaty. No clear right is abandoned, no material interest of the nation injured.
It is one thing, whether every part of the treaty be satisfactory; another, and a very different thing, whether in the aggregate it be eligible or not, and ought to be accepted or rejected. Nations could never make contracts with one another if each were to require that every part of it should be adjusted by its own standard of right and expediency. The true question always is upon the collective merits of the instrument; whether, upon the whole, it reasonably accommodates the opinions and interests of the parties. Tried by this test, the treaty negotiated with Great Britain fully justifies the acceptance of it by the constituted authorities of our country, and claims the acquiescence of every good citizen.
The most labored, and, at the same time, the most false of the charges against the eighteenth article is, that it allows provisions to be contraband in cases not heretofore warranted by the laws of nations, and refers to the belligerent party the decision of what those cases are. This is the general form of the charge. The draft of a petition to the Legislature of Virginia, reduces it to this shape. The treaty “expressly admits that provisions are to be held contraband in cases other than when bound to an invested place, and impliedly admits that such cases exist at present.”
The first is a palpable untruth, which may be detected by a bare perusal of the article. The last is an untrue inference, impregnated with the malignant insinuation that there was a design to sanction the unwarrantable pretension of a right to inflict famine on a whole nation.
Before we proceed to an analysis of the article, let us review the prior situation of the parties. Great Britain, it is known, had taken and acted upon the ground that she had a right to stop and detain, on payment for them, provisions belonging to neutrals, going to the dominions of France. For this violent and impolitic measure, which the final opinion of mankind will certainly condemn, she found color in the sayings of some writers of reputation on public laws.
A passage of this kind, from Vatel, has been more than once quoted, in these terms: “Commodities, particularly used in war, and the importation of which, to an enemy, is prohibited, are called contraband goods. Such are military and naval stores, timber, horses, and even provisions in certain junctures, when there are hopes of reducing the enemy by famine.“ Heinecius countenances the same opinion, and even Grotius seems to lean towards it.
The United States, with reason, disputed this construction of the law of nations; restraining the general propositions which appear to favor it, to those cases in which the chance of reducing by famine was manifest and palpable, such as the cases of particular places, bona fide besieged, blockaded, or invested. The Government accordingly remonstrated against the proceeding of Great Britain, and made every effort against it which prudence, in the then posture of affairs would permit. The order for seizing provisions was, after a time, revoked.
In this state our envoy found the business. Pending the very war in which Great Britain had exercised the pretension, with the same administration which had done it, was it to have been expected that she would, in a treaty with us, even virtually or impliedly have acknowledged the injustice or impropriety of the conduct? Here was no escape, as in the instance of the order of the 6th of November, 1793, in the misconceptions of her officers. The question was to condemn a deliberate and unambiguous act of the Administration itself. The pride, the reputation, and the interest of that Administration forbade it.
On our side, to admit the pretensions of Great Britain was still more impossible. We had every inducement of character, right, and interest against it. What was the natural and only issue out of this embarrassment? Plainly, to leave the point unsettled; to get rid of it; to let it remain substantially where it was before the treaty. This, I have good ground to believe, was the real understanding of the two negotiators; and the article has fulfilled that view.
After enumerating specifically what articles shall be deemed contraband, it proceeds thus, “And whereas the difficulty of agreeing on the precise cases, in which alone provisions and other articles, not generally contraband, may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise: It is further agreed, that whenever any such articles, so becoming contraband according to the laws of nations, shall, for that reason, be seized, the same shall not be confiscated, but the owners thereof shall be speedily and completely indemnified; and the captors, or, in their default, the government under whose authority they act, shall pay to the masters or owners of such vessels, the full value of all articles with a reasonable mercantile profit thereon, together with the freight and also the demurrage, incident to such detention.”
The difficulty of agreeing on the precise cases in which articles, not generally contraband, become so, from particular circumstances, is expressly assigned as the motive to the stipulation which follows. This excludes the supposition that any cases whatever were intended to be admitted or agreed. But this difficulty rendered it expedient to provide against the inconveniences and misunderstandings which might thence arise; a provision, with this view is, therefore, made, which is that of liberal compensation for the articles taken. The evident intent of this provision is, that in doubtful cases, the inconveniences to the neutral party being obviated or lessened by compensation, there may be the less cause or temptation to controversy and rupture, the affair may be more susceptible of negotiation and accommodation. More than this cannot be pretended; because it is further agreed, “that whenever any such articles so become contraband, according to the existing laws of nations, shall, for that reason, be seized, the same shall not be confiscated, but the owners thereof shall be speedily and completely indemnified,” etc., etc.
Thus the criterion of the cases, in which articles, not generally contraband, may, from particular circumstances, become so, is expressly the existing law of nations; in other words, the law of nations at the time the transaction happens. When these laws pronounce them contraband, they may, for that reason, be seized; when otherwise, they may not be seized. Each party is as free as the other to decide whether the laws of nations do, in the given case, pronounce them contraband or not, and neither is obliged to be governed by the opinion of the other. If one party, on a false pretext of being authorized by the laws of nations, makes a seizure, the other is at full liberty to contest it, to appeal to those laws, and, if it thinks fit, to oppose, even to reprisals and war. This is the express tenor of the provision—there is nothing to the contrary; nothing that narrows the ground; nothing that warrants either party in making a seizure, which the law of nations, independent of the treaty, permits; nothing which obliges either party to submit to one, when it is of opinion the law of nations has been violated by it.
But as liberal compensation is to be made in every case of seizure, whereof difference of opinion happens, it will become a question of prudence and expediency, whether to be satisfied with the compensation, or to seek further redress. The provision will, in doubtful cases, render an accommodation of opinion the more easy, and, as a circumstance conducing to the preservation of peace, is a valuable ingredient in the treaty. A very different phraseology was to have been expected, if the intention had been, to leave each party at liberty to seize, agreeably to its own opinion of the law of nations, upon the condition of making compensation. The stipulation would thus have been: “It is agreed, that whenever either of the contracting parties shall seize any such articles so becoming contraband, and which shall, for that reason, be seized”; this makes, not the opinion of either party, but the fact of the articles having become contraband by the laws of nations, the condition of the seizure.
A cavil has arisen on the term “existing,” as if it had the effect of enabling one of the parties to make a law of nations for the occasion. But this is a mere cavil.
No one nation can make a law of nations; no positive regulation of one state, or of a partial nomination of states, can pretend to this character. A law of nations is a law which nature, agreement, or usage, has established between nations; as this may vary from one period to another by agreement or usage, the article very properly uses the term “existing,” to denote that law which, at the time the transaction may happen, shall be then the law of nations. This is a plain and obvious use of the term, which nothing but a spirit of misrepresentation could have perverted to a different meaning.
The argument against the foregoing construction is in substance this (viz.): it is now a settled doctrine of the law of nations that provisions and other articles, not generally contraband, can only become so when going to a place besieged, blockaded, or invested; cases of this kind are fully provided for in a subsequent part of the article; the implication, therefore, is that something more was intended to be embraced in the antecedent part.
Let us first examine the fact, whether all the cases of that kind are comprehended in the subsequent part of the article. I say they are not. The remaining clause of the article divides itself into two parts. The first describes the case of a vessel sailing for a port or place belonging to an enemy, without knowing that the same is either besieged, blockaded, or invested; and provides that, in such case, the vessel may be turned away, but not detained, nor her cargo, if not contraband, confiscated, unless after notice she shall again attempt to enter. The second describes the case of a vessel, or goods, which had entered into such port or place before it was besieged, blockaded, or invested, and declares that the one or the other shall not be liable to confiscation, but shall be restored to the owners thereof. These are the only cases described or provided for. A third, which occurs on the slightest reflection, is not mentioned: the case of a vessel going to a port or place which is besieged, blockaded, or invested, with notice of its being in that state when she commences her voyage, or previous to her receiving notice from the besieging, blockading, or investing party. This is left to the operation of the general law of nations, except so far as it may be affected in respect to compensation by the antecedent clause. Thus the fact, which is the foundation of the argument, fails, and with it, of course, the argument itself.
But had this been otherwise, the conclusion would still have been erroneous; the two clauses are entirely independent of each other, and though they might both contemplate the same cases in whole, or in part, they do it with an eye to very different purposes.
The object of the first is to lessen the danger of misunderstanding, by establishing this general rule, that whenever articles, not commonly contraband, become so from particular circumstances, according to the law of nations, they shall still not be confiscated, but, when seized, the owners of them shall be indemnified.
The object of the last is to regulate some special consequences with regard to vessels and goods going to, or which had previously gone to places besieged, blockaded, or invested; and in respect to which the dispositions of the laws of nations may have been deemed doubtful or too rigorous. Thus it is held that the laws of nations permit the confiscation of ships and goods going to places besieged, blockaded, or invested; but this clause decides that if going without notice, so far from being confiscated, they shall not even be detained, but shall be permitted to go whithersoever they please. If they persist after notice, then the contumacy shall be punished with confiscation. In both instances the consequence is entirely different from every thing in the antecedent clause.
There, there is seizure, with compensation. Here, in one instance, seizure is forbidden, and permission to go elsewhere is enjoined. In the other instances, the offending things are confiscated, which excludes the idea of compensation. Again, the last part of the last clause stipulates, in the case which it supposes, the restoration of the property to its owners, and so excludes both seizure and compensation. Hence it is apparent the objects of the two clauses are entirely foreign to each other, and that no argument nor inference whatever can be drawn from the one to the other.
If it be asked, what other cases there can be, except those of places besieged, blockaded, or invested? and if none other, what difficulty in defining them? why leave the point so vague and indeterminate? One answer, which indeed has already been given in substance, is, that the situation of one of the parties prevented an agreement at the time; that not being able to agree, they could not define; and the alternative was to avoid definition. The want of definition only argues want of agreement. It is strange logic to assert, that this or that is admitted, because nothing is defined.
Another answer is, that even if the parties had been agreed that there were no other cases than those of besieged, blockaded, or invested places, still there would have remained much room for dispute about the precise cases, owing to the impracticability of defining what is a besieged, blockaded, or invested place. About this there has been frequent controversy;and the fact is so complicated, puts on such a variety of shapes, that no definition can well be devised, which will suit all. Thence nations, in their compacts with each other, frequently do not attempt one; and where the attempt has been made, it has left almost as much room for dispute about the definition as there was about the thing.
Moreover, is it impossible to conceive other cases than those mentioned above, in which provisions and other articles not generally contraband might, on rational grounds, be deemed so? What if they were going expressly, and with notice, to a besieging army, whereby it might obtain a supply essential to the success of its operations? Is there no doubt that it would be justifiable in such case to seize them? Can the liberty of trade be said to apply to any instance of direct and immediate aid to a military expedition? It would be at least a singular effect of the rule, if provisions could be carried without interruption for the supply of a Spanish army besieging Gibraltar, when, if destined for the supply of the garrison in that place, they might, of right, be seized by a Spanish fleet.
The calumniators of the article have not had the candor to notice that it is not confined to provisions, but speaks of provisions and other articles. Even this is an ingredient which combats the supposition that countenance was intended to be given to the pretension of Great Britain with regard to provisions which, depending on a reason peculiar to itself, cannot be deemed to be supported by a clause including other articles, to which that reason is entirely inapplicable.
There is one more observation which has been made against this part of the article which may deserve a moment’s attention. It is this, that though the true meaning of the clause be such as I contend for, still the existence of it affords to Great Britain a pretext for abuse which she may improve to our disadvantage. I answer, it is difficult to guard against all the perversions of a contract which ill faith may suggest. But we have the same security against abuses of this sort, which we have against those of other kinds, namely, the right of judging for ourselves, and the power of causing our rights to be respected. We have this plain and decisive reply to make, to any uncandid construction which Great Britain may, at any time, endeavor to raise: “The article pointedly and explicitly makes the existing law of nations the standard of the cases in which you may rightfully seize provisions and other articles not generally contraband. This law does not authorize the seizure in the instance in question; you have consequently no warrant under the treaty for what you do.”
The same disingenuous spirit which tinctures all the conduct of the adversaries of the treaty, has been hardy enough to impute to it the last order of Great Britain, to seize provisions going to the dominions of France.
Strange, that an order issued before the treaty had ever been considered in this country, and embracing the other neutral powers besides the United States, should be represented as the fruit of that instrument! The appearances are, that a motive no less imperious than that of impending scarcity has great share in dictating the measure, and time, I am persuaded, will prove that it will not ever be pretended to justify it by any thing in the treaty.
The course thus far pursued in the discussion of the 18th article has inverted the order of it, as it stands in the treaty. It is composed of three clauses, the two last of which have been first examined; I thought it advisable, in the outset, to dispose of an objection which has been the principal source of clamor.
The first clause of that which remains to be examined enumerates the articles which, it is agreed, shall be deemed contraband of war. These are, “all arms, and implements serving for the purpose of war, such as cannon, muskets, mortars, petards, bombs, grenadoes, carcases, saucisses, carriages for cannon, musket-rests, bandoliers, gunpowder, match, saltpetre, balls, pikes, swords, head-pieces, cuirasses, halberts, lances, javelins, horse-furniture, holsters, belts, and generally all other implements of war; as also timber for ship-building, tar or rosin, copper in sheets, sails, hemp, and cordage, and generally what-ever may serve directly to the equipment of vessels, unwrought iron and fir planks only excepted.”
All which articles are declared to be just objects of confiscation, when attempted to be carried to any enemy of either party.
It is well understood, that war abridges the liberty of trade of neutral nations; and that it is not lawful for them to supply either of two belligerent parties with any article deemed contraband of war; nor may they supply any article whatever to a place besieged, blockaded, or invested. The former case includes a special catalogue of articles which have an immediate reference to war; the latter extends to all kinds of goods and merchandise. The penalty in both cases is confiscation.
These positions have not been disputed. The only question which has been or can be raised, must respect the enumeration of the articles which are to be considered as contraband.
In comparing the enumeration in the present treaty, with that of our former treaties, we find the differences to be these. Our former treaties include “horses,” and one of them “soldiers,” which our present does not; but our present includes “timber for ship-building, tar or rosin, copper in sheets, sails, hemp, and cordage, and generally whatever may serve directly to the equipment of vessels, unwrought iron and fir planks only excepted,” which are not to be found in our former treaties.
It is alleged that the including of these articles is an extension of the list of contraband beyond the limit of the modern law of nations; in support of which allegation, it is affirmed, that they have been excluded by the uniform tenor of the treaties which have been formed for more than a century past.
Though this position will not, upon careful examination, appear correct; yet it is so far founded, as to claim an acknowledgment, that the article under consideration has, in this instance, pursued the rigor of the law of nations. It was to this I alluded, when I observed that it contained one unpleasant ingredient.
It is a fact, that far the greater proportion of modern treaties exclude naval stores or articles for ship-building; yet this is not universally the case.
By the third article of the treaty of alliance and commerce between Great Britain and Denmark, in 1670, the parties agree, “not to furnish the enemies of each other with any provisions of war, as soldiers, arms, engines, guns, ships, or other necessaries for the use of war, nor to suffer the same to be furnished by their subjects.” An explanation of this article was made by a convention, dated the 4th of July, 1780, which after enumerating as contraband the usual catalogue of military implements, adds, in the precise terms of our article, “as also timber for shipbuilding, tar, rosin, copper in sheets, sails, hemp, and cordage, and generally whatever may serve directly to the equipment of vessels, unwrought iron and fir planks only excepted.”
In a series of treaties between Great Britain and Portugal, down to the year 1703, I do not discover that there has ever been a regulation of the articles which are to be treated as contraband, between these powers.
And between Sweden and Great Britain, the 11th article of a treaty, entered into in 1661 (and still in force unaltered, though a subsequent commercial treaty was made between those powers as late as 1776), subjects to confiscation equally all articles called contraband, and especially money, provisions, etc. This specification not being complete, naval stores are left upon the open ground of the law of nations; but money and provisions are superadded. This latitude would bear little doubt as to the intention to include naval stores.
It appears from these specimens, that there is not a perfect uniformity in the conventions between nations; and that no purely positive law of nations can be deduced from that source.
If we call to our aid the principles of reason and natural justice, which are the great foundations of the law of nations, we shall not discover, in this instance, data as certain as could be wished, for a satisfactory conclusion; and the soundest determination which we can adopt will be, that beyond a certain point, the question is in a great degree arbitrary, and must depend materially upon conventional regulation between nation and nation. Hence it is there is so great a diversity in the stipulations of different parties on this point, indicating that there is no absolute rule. Hence also it is, that several nations at different times, being at war, have thought themselves authorized to regulate and announce, by public declarations, the articles which they would consider and treat as contraband.
The opinion of writers will be found to support the article as it stands, in the particular, which is now the subject of discussion.
Vatel, we have before seen (B. B. C. 3, 6, 7, S. 112), expressly ranks naval stores and timber under the denomination of contraband goods.
Heinecius (De Navibus, etc., chap. I., S. 10, 11, and 14) accords in the same position to the extent of whatsoever appertains to the equipment of vessels.
Bynkershoek is less explicit. After laying it down as the general rule that naval stores, or the materials of ships, are not contraband, he proceeds thus: “Yet it sometimes happens that the materials of ships may be prohibited, if an enemy is in great want of them, and without them cannot conveniently carry on the war” ; and he afterwards cites, with approbation, several edicts or proclamations which the states-general, in different wars with different nations, have published, declaring those articles contraband—thus referring it to the belligerent party to judge of and pronounce the cases when they may rightfully be deemed so. And the same idea seems to have been adopted by Grotius and some other writers on public law. I have not met with one whose opinion excludes naval stores from the list of contraband.
Grotius, in discussing this question, divides goods into three classes: 1. Those which are of use only in war, as arms, etc. 2. Those which serve only for pleasure. 3. Those useful for peaceable as well as for warlike purposes, “as money, provisions, ships, and naval stores.” Concerning which he argues in substance, that the first class are clearly contraband, that the second class are clearly not contraband, and that the third class may or may not be so, according to the state and circumstances of the war; alleging that, if necessary to our defence, they may be intercepted, but upon condition of restitution, unless there be just cause to the contrary; which just cause is explained by the examples of sending them to a besieged or blockaded place.
The reasoning about the third class has a very inconvenient latitude. It subjects the trade of neutral nations too extensively to the discretion of belligerent powers; and yet there is a serious embarrassment about drawing the true line, one which will duly conciliate the safety of the belligerent with that of the neutral party.
What definition of contraband, consulting reason alone, shall we adopt? Shall we say, that none but articles peculiar to war ought to receive this denomination? But is even powder exclusively applicable to war? Are nitre and sulphur, its chief ingredients, peculiar to war? Are they not all useful for other purposes; some of them in medicine, and other important arts? Shall we say, that none but articles prepared and organized for war, as their primary object, ought to have that character? But what substantial difference can reason know, between the supply to our enemy of powder, and that of sulphur and saltpetre, the easily convertible materials of this mischievous compound?
How would either of these definitions, or any other, comport with what those of our treaties which are thought unexceptionable, in this particular, have regulated, or with what is common in the treaties between other nations? Under which of them shall we bring horses and their furniture?
If we say that, in wars by land, these are instruments little less important than men, and for that reason ought to be comprehended, it may be asked in return, what can be more necessary in wars by sea than the materials of ships, and why should they not, for the like reasons, be equally comprehended?
In wars between maritime nations, who transfer its calamities from the land to the ocean, and wage their most furious conflicts on that element, whose dominions cannot be attacked or defended without a superiority in naval strength, who moreover possess distant territories, the protection and commercial advantages of which depend upon the existence and support of navies, it is difficult to maintain, that it is against reason, or against those principles which regulate the description of contraband, to consider as such the materials which appertain to the construction and equipment of ships.
It is not a sufficient objection that these articles are useful for other purposes, and especially for those of maritime commerce. Horses are of primary utility in agriculture; and it has been seen that there are other articles indisputably on the list of contraband, which are entirely within the principle of that objection.
Rutherforth, a sensible modern writer, after truly observing, “that the notion of contraband goods is of some latitude, so that it is not easy precisely to determine what are and what are not of this sort; that all warlike stores are certainly contraband, but that still the question returns, what are to be reckoned warlike stores?”—after noticing the division of articles by Grotius and the difficulties with regard to the third class—draws this conclusion, that “where a war is carried on by sea as well as by land, not only ships of war which are already built, but the materials for building or repairing of ships, will come under the notion of warlike stores.“ This is a precise idea, and, it must be confessed, on principle, not an irrational one.
If we resort to the opinions which have been entertained and evidenced in our own country, they will be found to have given great extent to the idea of contraband. Congress, by an act of May the 8th, 1777, establishing the form of commissions for privateers, authorize them “to attack, subdue, and take all ships and other vessels whatever, carrying soldiers, arms, gunpowder, ammunition, provisions, or any other contraband goods, to any of the British armies or ships of war employed against the United States.” And in their act of the 27th of November, 1780, acceding, in part, to the rule of the armed neutrality, they declare, that contraband shall be thereafter confined to the articles contained under this character, in our treaty with France; indicating, by this, their opinion that the list of those articles is abridged by that treaty. If the first-mentioned act was well founded (and there are strong reasons for it), it establishes that even provisions may be contraband if going directly to invading fleets and armies; which affords an instance of their being so (analogous to the case heretofore put of a besieging army) in addition to the cases of places besieged, blockaded, or invested. And as to naval stores, I assert a belief, that the common opinion of those persons in this country whose contemplation had embraced the subject, included them in the catalogue of contraband.
Nevertheless, from the number of modern treaties which exclude from that list naval stores, and moreover from the manifest interest of nations, truly considered, to narrow the rights of war in favor of those of peace; this clause of the treaty, which takes a different route, is to be regretted as pursuing the rigor of the law of nations. Still, however, it cannot be objected to, as a departure from the law; and agreeing with the course observed by Great Britain antecedent to the treaty, it does not place our trade in those articles upon a worse footing than it was, independent of the treaty.
The period of the negotiation was most unpropitious to a change for the better; in the midst of any maritime war, a belligerent nation, enjoying a naval superiority, was like to have been tenacious of a right which she supposed herself to possess to intercept naval supplies to her enemy. But in a war, in which it was more than ordinarily possible that the independent existence of a nation might depend on the retaining a naval superiority, it was to have been foreseen that she would not consent to relinquish such a right. The alternative was, to insert the article as it stands, or to omit it wholly.
Had it been omitted, the condition of naval stores would have been the same as with it. But our merchants would then have continued to be exposed to uncertain risks, which is always a great inconvenience. It is desirable, in similar cases, to have a fixed rule. Merchants can then accommodate their speculations to the rule; and causes of national contention are avoided.
It is in this view to be regretted, that the cases when provisions may be treated as contraband could not have been agreed upon; but as this was impracticable, the next best thing has been done, by establishing the certainty of compensation in all such cases. This gives one important species of security, obviates one source of contention. And if really there may be other cases than the universally admitted ones, in which provisions can fairly be deemed contraband (as that designated by the act of Congress of May, 1777), the securing of compensation was truly a point gained by the article.
But while I confess, that the including of naval stores among contraband articles is an ineligible feature of the treaty, I ought to declare, that its consequences to the interests of the United States, as it regards the trade in those articles in time of war, do not appear to me important. War between other nations, when we are at peace, will always increase the demand for our bottoms, so as to require much additional building of vessels, and probably in that way to produce a more beneficial species of employment of the naval stores our country affords, than that of their exportation for sale.
The adversaries of the treaty are eagle-eyed to spy out instances in which it omits any favorable minutes which are found in our other treaties; but they forget to balance the account by particulars which distinguish it favorably from those treaties. Of this nature is the omission of horses from the list of contraband, and still more the salutary regulations, with regard to vessels and their cargoes going to places besieged, blockaded, or invested. I do not discover that these useful provisions, or their equivalents, are in either of our treaties with France, Holland, or Sweden.
It has been said, in reference to this article, “whenever the law of nations has been a topic for consideration, the result of the treaty accommodates Great Britain, in relation to one or both of the republics at war with her, as well as in the abandonment of the rights and interests of the United States,”—and the following examples are given, to each of which will be annexed a reply.
I.—“American vessels, bound to Great Britain, are protected, by sea-papers, against French and Dutch searches; but when bound to France or Holland, are left exposed to British searches, without regard to ships’ papers.” The truth of this proposition depends on another, which is, that the sea-papers are to be absolutely conclusive; but reasons have been given for doubting this construction, which, it has been remarked, does not obtain in practice. And it is certainly a violent one, inasmuch as it puts it in the power of the neutral, to defeat the rights of the belligerent party, in points of great consequence to its safety.
II.—“American provisions, in American vessels, bound to the enemies of Great Britain, are left by the treaty to the seizure and use of Great Britain; but provisions, whether American or not, in American vessels, cannot be touched by the enemies of Great Britain.” The construction of the treaty, upon which this difference is supposed, has been demonstrated to be erroneous. The difference, therefore, does not exist.
III.—“British property, in American vessels, is not subject to French or Dutch confiscation. French or Dutch property, in American vessels, is subject to British confiscation.” This was the case before the treaty, which makes no alteration in the matter. Moreover, it is counterbalanced by this circumstance: that American property, in British vessels, is subject to confiscation by France or Holland; but American property, in French or Dutch vessels, is not subject to confiscation by Great Britain.
IV.—“Articles of ship-building, bound to the enemies of Great Britain for the equipment of vessels of trade only, are contraband; bound to Great Britain, for the equipment of vessels of war, are not contraband.” This, also, was the case before the treaty, which, consequently, has not, in this particular more than the former, produced any benefit to one party, to the prejudice of the other. I forbear to dwell upon the article of horses, as falling under a contrary discrimination; nor shall I insist on the additional circumstances, that all American goods not generally contraband, if going to a place besieged, blockaded, or invested by French or Dutch forces, are liable to confiscation by France or Holland; if going to a place besieged, blockaded, or invested by British forces, are not liable to confiscation by Great Britain.
Differences of these several kinds are the accidental results of the varying views of different contracting powers, and form slender grounds of blame or praise of the respective contracts made with them.
The form of the criticisms last stated leaves little doubt that it was designed to insinuate an intention in this article to favor the monarchs of Great Britain, at the expense of the republics of France and Holland. The candor of it may be judged of by the two facts: first, that it makes no alteration, in this view, in the antecedent state of things; and secondly, that the relative situation of Holland, as the enemy of Great Britain, is subsequent to the adjustment of the article.
The remaining articles of the treaty principally relate to those maritime regulations that are usually inserted in modern treaties between commercial nations, and on that consideration, as well as from their evident utility in enabling us to distinguish with precision between what is and what is not lawful in relation to those points, they are entitled to our approbation; still however, even some of these customary articles, whose object and meaning are so well understood, have been deemed exceptionable.
The first paragraph of the nineteenth article, in order to prevent injuries by men of war, or privateers, enjoins (as before noticed) all commanders of ships of war and privateers, and all other citizens or subjects, of either party, to forbear doing any damage to those of the other, or from committing any outrage against them; and declares that, if they act to the contrary, they shall be punishable, and, moreover, bound in their persons and estates to make full satisfaction and reparation for all damages, of whatsoever nature the same may be.
These prohibitions are conformable with the laws of the United States. If, under color of authority, those to whom the same does not relate shall receive injury, the act, according to its circumstances, is an offence, for which the offender is not only answerable to his own country, but, moreover, to the injured party, to whom he is bound to make full and complete reparation.
The open and explicit views of the parties, and their mutual engagement to put this law in execution against all offenders, will be a salutary check upon the too frequent irregularities that occur in the course of war between maritime nations. The paragraph is a copy of a similar one contained in the fifteenth article of the commercial treaty between France and Great Britain, concluded in 1786, and agrees with the fourteenth article of our treaty with Holland. In order to guard still more effectually against the injuries to which the citizens and subjects may be exposed from the private ships of war of each other, the next paragraph stipulates that all commanders of privateers, before they receive their commissions, shall be subjected to give security, by at least two responsible sureties, who have no interest in the privateer, in the sum of fifteen hundred pounds sterling, or six thousand six hundred and sixty-six dollars; or, if the privateer is manned with more than one hundred and fifty men, in the sum of three thousand pounds sterling, or thirteen thousand three hundred and thirty-three dollars, to satisfy all damages and injuries committed by such privateers, her officers, or any of her men, against the tenor of the treaty, or the laws and instructions for the regulation of their conduct; and in case of aggression the commission of such privateer shall be recalled and made void.
This particular regulation has been frequently introduced in modern treaties, and exists in this precise shape in the last treaty of commerce between France and Great Britain; I have found no instance where a larger sum has been mentioned. It has, with little consideration, been made an objection to this regulation, that the amount of the bonds is not adequate to compensate or satisfy the damages that may be committed by these privateers.
The preceding part of the article gives the injured party a remedy against the persons and estates of the aggressors; the bonds are not required for the exclusive purpose of being the fund to which the injured may have recourse for satisfaction, but principally for the purpose of excluding from the command of privateers those dissolute and irregular characters, who are not restrained by either moral or political ties, and for whose good behavior responsible and disinterested men would not become bondsmen. The same principle is developed in the civil administration of every nation. In cases of pecuniary trust, it is a common and useful precaution to require surety for the faithful discharge of the office; and the principal advantage of this regulation is to secure the employment of virtuous and upright officers. The amount of the bonds required on these occasions is sufficient for this purpose, though inferior to the property confided to them.
Thus the Treasurer of the United States, who has the custody of millions, gives bonds for only one hundred and fifty thousand dollars, the collectors of New York and Philadelphia for fifty and sixty thousand dollars; sums very far short of the public money [of which they are in the receipt], yet sufficient to secure the public against characters of doubtful integrity. The adequacy of the sums [in the particular case] is moreover evidenced by the law and practice of our own country. In the resolution of Congress, of the third of April, 1776, which, so far as regards this point, remained in force throughout the American war, Congress required that the commander of every privateer, before his commission should be delivered to him, should give bonds, with sureties, to the President of Congress, in the sum of five thousand dollars, if the vessel was of or under one hundred tons; and of ten thousand dollars, if the vessel was upwards of one hundred tons, to observe the rules and instructions prescribed for their government. These sums are one quarter less than those required by the article before us.
The last paragraph, requiring the judges of the admiralty courts to furnish formal and duly authenticated copies of their proceedings in cases of the condemnation of vessels or cargoes belonging to the citizens or subjects of the parties, is pursuant to that reasonable course of proceeding which ought always in this and similar cases to prevail.
The twentieth article, which is in prevention of piracy, has the sanction of numerous precedents. A pirate is the common enemy of all mankind. All, therefore, should unite in refusing him assistance and refuge, and in the establishment of such regulations relative to the sale of his plunder as, by shutting against him every market, may thereby annihilate the motives to his piracy.
The twenty-first article stipulates, that the citizens and subjects of the parties shall do no acts of hostility or violence against each other, nor accept commissions or instructions so to act from any foreign state being an enemy to the other party. That the enemies of either nation shall not be allowed to invite, or endeavor to enlist, in their military service, any of the citizens or subjects of the other; and the laws prohibiting such offences are to be punctually executed. The article further stipulates, if any citizen or subject of either party has accepted of a foreign commission to arm a privateer against the other, it shall be lawful for the said party to treat and punish the said citizen or subject, having such commission, as a pirate.
The general tenor of this article is in conformity with the spirit of our preceding laws on this subject; it is, moreover, in perfect unison with the duties of neutrality; those duties which a just regard to the principles of integrity, as well as an enlightened pursuit of our own interests, require us faithfully to perform.
Two objections have been offered against this article: one that it precludes such of our citizens as, with a view of acquiring military knowledge, would otherwise engage as volunteers in foreign service; the other, that it [makes] every citizen and subject, of either party, who has accepted a foreign commission to arm a privateer against the other, and who shall be taken in possession of such commission, [liable] to be punished as a pirate.
In respect to the first objection, if, by a rigorous construction, the case is included within the prohibition, it should be remarked, that it is applicable only to such engagements as commence and are made in time of mutual war. If we have citizens who, with the view of military education, are inclined to engage in foreign service, though from past experience there is not much reason to conclude that the examples would be numerous, they have full scope, as I understand the article, in the periods of peace, to enter into any of the regular armies of Europe that they may prefer; and being thus engaged, they are free to make the campaigns of war against Great Britain, if that is their passion, without injuring this article. [The prohibition seems to be against engaging in the military service of a nation, previously in the condition of “enemy” to one of the parties.]
The second objection has even less plausibility than the first: the disingenuous means that have been used to excite a reprobation of this clause of the article, manifest the want of truth and patriotism of those who have employed them; passion and the spirit of opposition have asserted, that the provision before us is so extensive as to place the subordinate officers and private men, on board of a privateer, within the predicament of her commander; nay, that all persons, citizens or subjects of either nation, who would accept commissions [or enter, in any capacity] in a foreign army or navy, would, in consequence of this stipulation, be liable to be treated and punished as pirates. It is sufficient, after noticing these attempts to impose upon the public, to observe that the stipulation [expressly] confines the punishment in question to the commanders of privateers who, contrary to the laws of the land, and the clear and equitable obligations of the members of a neutral nation, shall be taken with such commission; and that it does not extend to the under-officers or crew, much less to such persons as, contrary to the preceding inhibition of the article, should accept commissions in a foreign army or navy. In respect to such misdemeanors in all cases (except that of equipping and commanding a privateer, which will expose the commander, when taken, to be punished as a pirate), the offence is cognizable only by the nation [within whose jurisdiction the offence is committed, or] of which the offender is a citizen, or subject; and, by our laws, is punishable only by fine and imprisonment.
[A perversion of the sense of the clause, stipulating that “the law against all such offences and aggressions shall be punctually executed,” has been attempted, though nothing can be more innocent or unexceptionable. Its plain meaning is, that each party, in the cases falling within its jurisdiction, shall faithfully put in execution its own laws against the offences and aggressions, in contravention of the article. A stipulation between the governments, to execute laws on a certain subject, can mean nothing else than that each shall execute its own laws on that subject, in the cases appertaining to its jurisdiction.]
Though most of the objections preferred against the treaty are marked with that illiberal spirit which characterizes the party who have unceasingly labored to bring into discredit the government of the country, yet few of them have been less veiled than this, which condemns a stipulation intended to curb and restrain the few dissolute and daring characters who from the least worthy of all motives that lead to military enterprise, might otherwise engage in this piratical warfare.
What virtuous citizen would feel himself justified in accepting such command? What must be the morals of those instructors who contend for a freedom to commit what humanity and honor forbid? Every treaty that we have concluded with other nations is enriched with this stipulation; not only our own treaties, but those between other nations contain it. How is it that we nowhere discover a trace of disapprobation, either on the part of our statesmen, or from an enlightened people, against a series of treaties, formed by different public ministers, and ratified by a succession of Congresses, each of which contains a provision that the crime of accepting a foreign commission to arm and command a privateer, against a nation with whom we are at peace, shall be treated and punished as piracy? Is it that our virtue has become less severe? our morality more indulgent? Or is it that our predecessors were less vigilant in defending the rights of our citizens, than the ostentatious patriots of the present day? But it is time to dismiss an objection entirely destitute of integrity and [decency].
The twenty-second article bears upon its face its own justification—it is pursuant to those [maxims which enlightened moralists recommend, and just nations respect]. It prescribes a course of conduct the most likely to procure satisfaction for injuries, and to maintain peace, and is therefore entitled to the approbation of all good men and real patriots. [It is particularly valuable to a weak nation, or a nation in its infancy, as an additional guard against sudden and unforeseen attacks of more powerful rivals.]
The first paragraph of the twenty-third article provides for the hospitable reception of the public or national ships of war of the parties, in the ports of each other; and engages that the officers of such ships shall be free from insult, and treated with decorum and respect.
The practice which our Government has adopted in relation to these points, independent of parties, is agreeable to this provision. And though the stipulation will be of less importance to us than it would be were we possessed of a respectable naval force, yet it may be useful. By our treaty with France, our ships of war have a right to enter their ports only in case of urgent necessity, and not freely and for mere convenience.
With Spain and Portugal we have no treaties, and, consequently, not an ascertained or perfect right to use their ports. Our navigation must be protected from the Barbary powers by force or by treaty. It is questionable whether the latter mode will prove effectual without the support of the former; Congress have therefore resolved to equip a small naval force, for the special object of protecting our trade against the Algerine and the other Barbary powers. Some port convenient to the scene of its cruising will be of essential advantage to the efficiency and success of its employment; not only the ports of Great Britain, but likewise the port of Gibraltar, will, by this article of the treaty, be open to us; and our frigates will there be entitled to a hospitable reception, and their officers to that respect which shall be due to the commissions which they bear.
The other paragraph of this article provides, in case an American vessel, by stress of weather, danger from enemies, or other misfortune, should be obliged to seek shelter in any British port, into which, in ordinary cases, such vessels could not claim the right to be admitted, that she shall be hospitably received, permitted to refit, and to purchase such necessaries as she may want; and, by permission of the local government, to sell such part of her cargo as may be necessary to defray her expenses. Our treaty with France contains a similar provision; but the restrictions with which it is guarded are less than those of the article before us.
The twenty-fourth article stipulates that it shall not be lawful for any foreign privateers, commissioned by any nation at war with either of the parties, to arm the vessels, or to sell or exchange their prizes, in the ports of either of the parties; and that they shall not be allowed to purchase more provisions than shall be necessary to carry them to the nearest port of the nation from whom they received their commission; and the twenty-fifth article stipulates that the ships of war and privateers of either party may carry whithersoever they please the ships and goods taken from their enemy; and that such prizes, on their arrival in the ports of the parties, shall not be searched, seized, detained, nor judicially examined touching the validity of their capture, but may freely depart; and furthermore, that no shelter or refuge shall be given in the ports of one of the parties to such as have made prizes upon the citizens or subjects of the other. Though the law of nations is explicit, that one nation having formed a particular stipulation with another, is not capable, by a subsequent treaty with a third nation, to do away or annul its former stipulations, but that the elder treaty, in such case, remains in full force, notwithstanding such posterior and contradictory treaty; yet, in order to remove all cavil on this point, and to maintain a scrupulous regard to good faith, even in appearance as well as in reality, and especially in relation to our treaty with France, the article further declares, “that nothing in the treaty contained shall be construed or operate contrary to former and existing public treaties with other sovereigns or states,” and adds that neither of the parties, while they continue in friendship, will form any treaty inconsistent with this and the preceding article. [This last clause has been censured as an undue restraint, while it is in fact a mere redundancy; as long as a treaty between two nations continues in force, it is against good faith for either to form a treaty with another nation inconsistent with it; if the treaty is once disclosed, by whatever means, no treaty with another nation can be inconsistent with it. The clause, therefore, only converts into an express promise what without it is an implied one, that the parties will not contravene their stipulations with each other by repugnant engagements with a third party. The disingenuity on this point has gone so far as to torture the clause into a positive stipulation against any treaty with another power conferring peculiar advantages of commerce upon that power. It is a sufficient reply to this that the clause is expressly confined to the twenty-fourth and twenty-fifth articles; determining nothing as to the other articles of the treaty. The general principle of this last objection has been sufficiently discussed elsewhere.]
The article concludes with a mutual engagement, that neither of the parties will permit the ships or goods of the other to be taken within cannon shot of the coast, nor in any of the bays, ports, or rivers of their territories; and in case of such capture, the party whose territorial rights are violated shall use his utmost endeavors to obtain satisfaction for the vessels or goods taken. This stipulation is conformable to the duty and practice of nations who have entered into no special engagements requiring the same, and agrees with a common provision in public treaties.
Hitherto we have prudently avoided granting to any nation a right to arm their privateers or to sell their prizes in our ports; our laws are explicit in prohibiting such equipments; and the exclusion thereof, contained in the twenty-fourth article, is agreeable to the declared policy of the country. We have engaged in our treaty with France to prohibit her enemies from selling their prizes within our ports; but not having engaged to permit France to sell her prizes therein, we were free to agree with Great Britain, that her enemies shall likewise be prohibited from selling their prizes in our territory. A clause in the twenty-fifth article denies all refuge to ships of war and privateers that have made prizes on either of the parties; and the last clause of the twenty-fourth article stipulates that foreign privateers, enemies to either of the parties, shall not be allowed to purchase more provisions than sufficient to carry them to the nearest port of the nation from whom they received their commission.
These clauses will operate only against such nations as have not, by an elder treaty, secured a right of reception in the ports of the parties. Still, however, it is alleged that these articles violate our treaty with France. It has already been observed that the treaty contains a clear and explicit agreement of the parties, excepting from its operation all former existing public treaties. Our treaty with France is an antecedent and existing public treaty, and consequently excepted, in all its parts, from the operation of the treaty before us. Whatever right or privilege, therefore, is secured to France in virtue of that treaty, she will continue to enjoy, whether the same respects the reception of her public ships of war, privateers or prizes, in our ports, or the exclusion therefrom of those of her enemies.
Could there be a doubt on this point, the practice of other nations, and especially that of France, on the very point, would effectually remove it. The fifteenth and thirty-sixth articles of the commercial Treaty of Utrecht, between France and Great Britain, contain the same stipulations as the twenty-fourth and twenty-fifth articles of the treaty before us. That treaty was in existence and force at the time of forming our treaty with France, yet France found no difficulty in the insertion of the same stipulations in her treaty with us. She could not have considered their insertion in the treaty with us as a violation of her treaty with Great Britain, otherwise good faith would have restrained her. The war that soon after took place between France and Great Britain, dissolved the Treaty of Utrecht. Our treaty with France remained in force; yet, in the year 1786, France and Great Britain entered into a commercial treaty, the sixteenth and fortieth articles of which renew the stipulations contained in the fifteenth and thirty-sixth articles of the Treaty of Utrecht.
If France was free, first to form these stipulations with us in 1778, notwithstanding her prior and existing treaty with Great Britain, and afterwards in 1786 to renew the same stipulations with Great Britain, we must be equally free in a treaty with the same, or any other power, to agree to similar stipulations. Both were free, and neither violates former engagements, by assenting, as we have done, to these stipulations in a posterior treaty.
It is further alleged, that these articles are injurious to the interest of the United States, because they prohibit, in certain cases, foreign privateers to rendezvous in our ports, and to sell within our territory the prizes they may have taken. If it is desirable to render our principal seaports and cities scenes of riot and confusion; if it is politic to divide our citizens, by infusing into their minds the hostile spirit with which the nations at war are animated against each other; if we are prepared to see the prostration of public authority, and to behold the laws trampled upon by armed banditti; if we are ready to invite our citizens to abandon their regular and useful employments, and to engage, as adventurers, even against each other, in the pursuit of plunder, then is the objection well-founded, then is the restraint pernicious, then is the stipulation worthy of condemnation. But if to establish the reverse of all this, is the effort and aim of every wise and prudent government, the stipulation in question demands the approbation of all virtuous citizens.
But were none of these consequences to be apprehended from the free admission of the privateers of all nations engaged in war, and the permission to sell their plunder, it would, notwithstanding, be against the interests of the United States to allow the same. It is a sound commercial principle, that the interest of buyers, as well as sellers, is best promoted by a free competition. The great number of the sellers of foreign manufactures and productions affords the best market for the buyers. The great number of buyers of our productions affords the best market for the sellers. Foreign privateers are precarious sellers, and buyers only for their own consumption. They drive away and banish from our markets, both buyers and sellers. When our coasts are lined with foreign privateers that rendezvous in our ports, the merchantships of all nations, not excepting our own, will be liable to interruption, and discouraged from coming to our markets; and those of the belligerent powers will be generally excluded. Our markets might, perhaps, derive supplies from the prizes that such privateers should take, so as, in some degree, to compensate for the deficiency that would proceed from the exclusion of foreign merchantmen; but this supply would be uncertain, irregular, ill-assorted, and partial, while the principal commercial detriment would exist without mitigation,—that of a partial or total destruction of foreign competition in the purchase of our agricultural and other productions.
If, moreover, it is the duty as well as the interest of the United States, to observe an exact and scrupulous neutrality, amidst the wars of other nations, one of the most efficacious means of effecting that purpose will be, to remove every temptation that might lead our citizens to an opposite course. No allurement would be more likely to seduce them from their duty than that which is offered by the expected gains of privateering; no avenue of political mischief should, therefore, be more carefully closed.
If these articles are exceptionable, in any respect, it is that, in imitation of the analogous articles of our treaty with France, they allow the privateers of the parties, in cases not inconsistent with former treaties, to rendezvous in, and their prizes to be brought into, each other’s ports and harbors. It would, in my judgment, have been the true policy of the United States, as well with the view of maintaining an impartial and decided neutrality in the wars of Europe, from a participation in which our remote situation, with [due] prudence, is an exemption, as likewise, in order to promote, in the most advantageous manner, our national prosperity, totally and for ever to have excluded all foreign privateers and prizes from our ports and harbors.
But having entered into these stipulations with France, by which she has the use of all our ports against all other nations, we having the use of her ports only against those nations who have not an elder treaty with her, it would have manifested an unwise partiality to have refused to enter into similar stipulations with other nations who might desire them; accordingly they are found in others of our treaties with as well as in that under consideration—another refutation of the objection to this last as being in these respects repugnant to that with France.
The twenty-sixth article provides, in case of a rupture between the parties, that the merchants and others of each nation, residing in the dominions of the other, may maintain and continue their trade during good behavior; in case, however, their conduct should become suspicious, they may be removed, and a twelve-month after the publication of the order of removal is to be allowed for that purpose; but this term is not to be granted to such persons as act contrary to law, or are guilty of any offence against the government; all such persons may be forthwith removed or sent out of the respective dominions of the parties. The residue of the article is calculated to ascertain the condition of the parties, when the rupture shall be deemed to exist. Each nation remains the exclusive judge of the foreigners among them, and will be able to decide from their behavior, how far their residence may be compatible with the public safety. In case of suspicion only, that their residence will prove detrimental, they may order them to depart, reasonable time being allowed them to collect their effects. On the one hand, the article affords to the parties perfect security against the irregular and suspicious conduct of foreigners who may be among them on the breaking out of war, and, on the other hand, consults, with that liberality which the modern usage of nations sanctions, the safety and convenience of those who, under the faith of the respective governments, have chosen a residence in the dominions of the parties. Our treaties with France, Holland, and Sweden secure to the merchants of the respective parties a limited period, after the commencement of war, within which they may collect their effects, and remove; the article before us, relative to this subject, is a transcript of the second article of the treaty of commerce, of 1786, between France and Great Britain. [The objection, therefore, to there being a certain term within which they cannot be removed upon bare suspicion, lies against our other treaties and against almost all the treaties of Europe for many years. The pretence to order away upon mere supposition would defeat all the stipulations, that allow a certain term to collect, sell, and remove debts and effects; and for that reason could not be supported.
The remainder of the article, which gives an option to each party, either to request the recall, or immediately to send home, the ambassador of the other without prejudice to their mutual friendship and good understanding, is a valuable feature. The power “immediately to send home,” without giving offence, avoids much delicate embarrassment connected with an application to recall; it renders it easier to arrest an intriguing minister in the midst of a dangerous intrigue, and it is a check upon the minister by placing him more completely in the power of the government with which he resides. These last circumstances are particularly important to a republic, one of the chief dangers of which arises from its exposure to foreign intrigue and corruption.]
The twenty-seventh article, which provides for the delivery of all persons charged with murder or forgery committed within the jurisdiction of one party, and who have taken refuge within the territories of the other, is a regulation of peculiar worth between nations whose territories are contiguous to each other. Without such regulation, the ease with which the perpetrators of these atrocious crimes might escape punishment, especially on the frontiers, by passing out of one jurisdiction into the other, would, in a great measure, destroy the security against these offences, that arises from the fear and certainty of punishment. The provision that such delivery shall not be made unless upon the exhibition of such evidence of criminality as, according to the laws of the place where the fugitive shall be found, would justify his apprehension and commitment for trial, if the crime had been there committed, will prevent vexatious requisitions, and is a caution due to the rights of individuals.
The twenty-eighth and concluding article establishes, that the first ten articles of the treaty shall be permanent; that the remaining ones, except the twelfth, which, with the twenty-fifth, constitutes the body of the commercial part of the treaty, shall be limited in their duration to twelve years; and reciting, that the twelfth will end, by its own limitation, at the end of two years after the termination of the present European war, further establishes, that, within the last-mentioned term, and in time to perfect the business by the expiration of that term, the discussion of the subject of the twelfth article shall be renewed, and if the parties cannot agree on such new arrangement, concerning it, as may be satisfactory, that then all the said remaining articles (in other words, all but the first ten) shall cease and expire together. This article, which is an entirely independent one, obviates the doubt, affected to be entertained, whether the exception in the ratification, with regard to the twelfth article, did not do away with the stipulation, by which the continuance of the treaty, except the first ten articles, beyond the term of two years after the expiration of the war, is made to depend on a further arrangement of the West India trade. This separate article is positive and conclusive, absolutely annulling the treaty at that time, if such an arrangement be not made, and thereby places it in the power of either party so to manage the matter as to put an end to all the commercial part of it, except what relates to inland trade and navigation with the neighboring British territories, at the end of the short period of two years from the termination of the existing war. This alone is sufficient to confound all the high-charged declamations against the tendency of the treaty to ruin our trade and navigation.
It is now time to fulfil my promise of an examination of the constitutionality of the treaty. Of all the objections which have been contrived against this instrument, those relating to this point are the most futile. If there be a political problem capable of complete demonstration, the constitutionality of the treaty, in all its parts, is of this sort.—It is even difficult to believe, that any man in either house of Congress, who values his reputation for discernment or sincerity, will publicly hazard it by a serious attempt to controvert the position.
It is, nevertheless, too much a fashion with some politicians, when hard pressed on the expediency of a measure, to intrench themselves behind objections to its constitutionality—aware that there is naturally in the public mind a jealous sensibility to objections of that nature, which may predispose against a thing otherwise acceptable, if even a doubt, in this respect, can be raised. They have been too forward to take advantage of this propensity, without weighing the real mischief of the example. For, however it may serve a temporary purpose, its ultimate tendency is, by accustoming the people to observe that alarms of this kind are repeated with levity and without cause, to prepare them for distrusting the cry of danger when it may be real: yet the imprudence has been such, that there has scarcely been an important public question, which has not involved more or less of this species of controversy.
In the present case, the motives of those who may incline to defeat the treaty, are unusually strong for creating, if possible, a doubt concerning its constitutionality.
The treaty, having been ratified on both sides, the dilemma plainly is between a violation of the Constitution, by the treaty, and a violation of the Constitution by obstructing the execution of the treaty.
The VIth article of the Constitution of the United States declares, that “the Constitution and the laws of the United States, made in pursuance thereof, all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.” A law of the land, till revoked or annulled, by the competent authority, is binding, not less on each branch or department of the government than on each individual of the society. Each house of Congress collectively, as well as the members of it separately, are under a constitutional obligation to observe the injunctions of a pre-existing law, and to give it effect. If they act otherwise, they infringe the Constitution; the theory of which knows, in such case, no discretion on their part. To resort to first principles for their justification, in assuming such a discretion, is to go out of the Constitution for an authority which they cannot find in it; it is to usurp the original character of the people themselves; it is, in principle, to prostrate the government.
The cases must be very extraordinary that can excuse so violent an assumption of discretion. They must be of a kind to authorize a revolution in government; for every resort to original principles, in derogation from the established Constitution, partakes of this character.
Recalling to view, that all but the first ten articles of the treaty are liable to expire at the termination of two years after the present war, if the objection to it in point of constitutionality cannot be supported, let me ask, who is the man hardy enough to maintain, that the instrument is of such a nature as to justify a revolution in government?
If this can be answered in the affirmative, adieu to all the securities which nations expect to derive from constitutions of government. They become mere bubbles, subject to be blown away by every breath of party. The precedent would be a fatal one; our government, from being fixed and limited, would become revolutionary and arbitrary; all the provisions which our Constitution, with so much solemnity, ordains “for forming a more perfect union, establishing justice, insuring domestic tranquillity, providing for the common defence, promoting the general welfare, and securing the blessings of liberty to ourselves and posterity,” would evaporate and disappear.
Equally will this be the case, if the rage of party spirit can meditate, if the momentary ascendency of party, in a particular branch of the government, can effect, and if the people can be so deceived as to tolerate—that the pretence of a violation of the Constitution shall be made the instrument of its actual violation.
This, however, cannot be; there are already convincing indications on the very subject before us, that the good sense of the people will triumph over prejudice and the acts of party, that they will finally decide according to their true interest, and that any transient or partial superiority which may exist, if abused for the purpose of infracting the Constitution, will consign the perpetrators of the infraction to ruin and disgrace. But alas! what consolation would there be in the ruin of a party for the ruin of the Constitution?
It is time to enter on the momentous discussion. The question shall be examined in the four following views: 1. In relation to the theory of the Constitution. 2. In relation to the manner in which it was understood by the convention who framed it, and by the people who adopted it. 3. In relation to the practice upon a similar power in the Confederation. 4. In relation to the practice under our present Constitution, prior to the treaty with Great Britain. In all these views, the constitutionality of the treaty can be vindicated beyond the possibility of a serious doubt.
1. As to the theory of the Constitution. The Constitution of the United States distributes its powers into three departments, legislative, executive, judiciary. The first article defines the structure, and specifies the various powers, of the legislative department; the second article establishes the organization and powers of the executive department; the third article does the same with respect to the judiciary department; the fourth and fifth and sixth articles, which are the last, are a miscellany of particular provisions.
The first article declares that “all legislative power granted by the Constitution shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.”
The second article, which organizes and regulates the executive department, declares that the “executive power shall be vested in a President of the United States of America”; and proceeding to detail particular authorities of the executive, it declares that the “President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur.” There is in no part of the Constitution any explanation of this power to make treaties, any definition of its objects, or delineation of its bounds. The only other provision in the Constitution respecting it is in the sixth article, which provides, as already noticed, that all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land!—and this notwithstanding any thing in the Constitution or laws of any State to the contrary.
It was impossible for words more comprehensive to be used than those which grant the power to make treaties. They are such as would naturally be employed to confer a plenipotentiary authority. A power “to make treaties,” granted in these indefinite terms, extends to all kinds of treaties, and with all the latitude which such a power, under any form of government, can possess; the power “to make” implies a power to act authoritatively and conclusively, independent of the after-clause which expressly places treaties among the supreme laws of the land. The thing to be made is a treaty.
With regard to the objects of the treaty, there being no specification, there is, of course, a carte blanche. The general proposition must, therefore, be, that whatever is a proper subject of compact, between nation and nation, may be embraced by a treaty between the President of the United States, with the advice and consent of the Senate, and the correspondent organ of a foreign state.
The authority being general, it comprises, of course, whatever cannot be shown to be necessarily an exception to it.
The only constitutional exception to the power of making treaties is, that it shall not change the Constitution; which results from this fundamental maxim, that a delegated authority cannot alter the constituting act, unless so expressly authorized by the constituting power. An agent cannot newmodel his own commission. A treaty, for example, cannot transfer the legislative power to the executive department, nor the power of this last department to the judiciary; in other words, it cannot stipulate that the President, and not Congress, shall make laws for the United States,—that the judges, and not the President, shall command the national forces.
Again, there is also a national exception to the power of making treaties, as there is to every other delegated power, which respects abuses of authority in palpable and extreme cases. On natural principles, a treaty, which should manifestly betray or sacrifice the private interests of the state, would be null. But this presents a question foreign from that of the modification or distribution of constitutional powers. It applies to the case of the pernicious exercise of a power, where there is legal competency. Thus the power of treaty, though extending to the right of making alliances offensive and defensive, might not be exercised in making an alliance so injurious to the state as to justify the non-observance of the contract.
Beyond these exceptions to the power, none occurs that can be supported.
Those which have been insisted upon, towards invalidating the treaty with Great Britain, are not even plausible. They amount to this: that a treaty can establish nothing between the United States and a foreign nation, which it is the province of the legislative authority to regulate in reference to the United States alone. It cannot, for instance, establish a particular rule of commercial intercourse between the United States and Great Britain; because it is provided in the Constitution, that Congress “shall have power to regulate commerce with foreign nations.” This is equivalent to affirming that all the objects upon which the legislative power may act, in relation to our country, are excepted out of the power to make treaties.
Two obvious considerations refute this doctrine: one, that the power to make treaties, and the power to make laws, are different things, operating by different means, upon different subjects; the other, that the construction resulting from such a doctrine would defeat the power to make treaties, while its opposite reconciles this power with the power of making laws.
The power to make laws is “the power of pronouncing authoritatively the will of the nation as to all persons and things over which it has jurisdiction”; or it may be defined to be “the power of prescribing rules binding upon all persons and things over which the nation has jurisdiction.” It acts compulsively upon all persons, whether foreigners or citizens, and upon all things within the territory of such nation, and also upon its own citizens and their property without its territory in certain cases and under certain limitations. But it can have no obligatory action whatsoever upon a foreign nation, or upon any person or thing within the jurisdiction of a foreign nation.
The power of treaty, on the other hand, is the power by agreement, convention, or compact, to establish rules binding upon two or more nations, their respective citizens and property. The rule established derives its reciprocal obligation from promise, from the faith which the contracting parties pledge to each other, not from the power of either to prescribe a rule for the other. It is not here the will of a superior that commands; it is the consent of two independent parties that contract.
The means which the power of legislation employs are laws which it enacts, or rules which it enjoins; the subject upon which it acts is the nation of whom it is, and the persons and property within the jurisdiction of the nation. The means which the power of treaty employs are contracts with other nations, who may or may not enter into them; the subjects upon which it acts are the nations contracting, and those persons and things of each to which the contract relates. Though a treaty may effect what a law can, yet a law cannot effect what a treaty does. These discriminations are obvious and decisive; and however the operation of a treaty may, in some things, resemble that of a law, no two ideas are more distinct than that of legislating and that of contracting.
It follows that there is no ground for the inference pretended to be drawn, that the legislative powers of Congress are excepted out of the power of making treaties. It is the province of the latter to do what the former cannot do. Congress (to pursue still the case of regulating trade) may regulate, by law, our own trade and that which foreigners come to carry on with us; but they cannot regulate the trade which we may go to carry on in foreign countries; they can give to us no rights, no privileges, there. This must depend on the will and regulations of those countries; and, consequently, it is the province of the power of treaty to establish the rules of commercial intercourse between foreign nations and the United States. The legislative may regulate our own trade, but treaty only can regulate the national trade between our own and another country.
The Constitution accordingly considers the power of treaty as different from that of legislation. This is proved in two ways: 1. That while the Constitution declares that all the legislative powers which it grants shall be vested in Congress, it vests the power of making treaties in the President with consent of the Senate. 2. That the same article by which it is declared that the executive power shall be vested in a President, and in which sundry executive powers are detailed, gives the power to make treaties to the President, with the auxiliary agency of the Senate. Thus the power of making treaties is placed in the class of executive authorities; while the force of laws is annexed to its results. This agrees with the distribution commonly made by theoretical writers, though perhaps the power of treaty, from its peculiar nature, ought to form a class by itself.
When it is said that Congress shall have power to regulate commerce with foreign nations, this has reference to the distribution of the general legislative power of regulating trade between the national and the particular governments; and serves merely to distinguish the right of regulating our external trade, as far as it can be done by law, which is vested in Congress, from that of regulating the trade of a State within itself, which is left to each State.
This will the better appear from the entire clause. “The Congress shall have power to regulate commerce with foreign nations and among the several States and with the Indian tribes,” which is the same as if it had been said: The whole powers of regulating trade by law shall reside in Congress, except as to the trade within a State, the power to regulate which shall remain with such State. But it is clearly foreign to that mutual regulation of trade between the United States and other nations, which, from the necessity of mutual consent, can only be performed by treaty. It is indeed an absurdity to say, that the power of regulating trade by law is incompatible with the power of regulating it by treaty; since the former can, by no means, do what the latter alone can accomplish; consequently, it is an absurdity to say, that the legislative power of regulating trade is an exception to the power of making treaties.
Laws are the acts of legislation of a particular nation for itself. Treaties are the acts of the legislation of several nations for themselves jointly and reciprocally. The legislative powers of one state cannot reach the cases which depend on the joint legislation of two or more states. For this, resort must be had to the pactitious power, or the power of treaty. This is another attitude of the subject, displaying the fallacy of the proposition, that the legislative powers of Congress are exceptions to, or limitations of, the power of the President, with the aid of the Senate, to make treaties.
It shall now be shown that the objections to the treaty, founded on its pretended interference with the power of Congress, tend to render the power of making treaties, in a very great degree, if not altogether, nominal. This will be best seen by an enumeration of the cases of pretended interference.
1st.—The power of Congress to lay taxes is said to be impaired by those stipulations which prevent the laying of duties on particular articles; which also prevent the laying of higher or other duties on British commodities than on the commodities of other countries; and which restrict the power of increasing the difference of duties on British tonnage and on goods imported in British bottoms.
2d.—The power of Congress to regulate trade is said to be impaired by the same restrictions respecting duties, inasmuch as they are intended, and operate, as regulations of trade; by the stipulations against prohibitions in certain cases; and, in general, by all the rights, privileges, immunities, and restrictions in trade, which are contained in the treaty; all which are so many regulations of commerce, which are said to encroach upon the legislative authority.
3d.—The power of Congress to establish a uniform rule of naturalization, is said to be interfered with by those provisions of the treaty which secure to the settlers, within the precincts of the British posts, the right of becoming citizens of the United States, and those which, in certain cases, remove the disability of alienism as to property.
4th.—The power of Congress “to define and punish piracies and felonies, committed on the high seas, and offences against the law of nations,” is said to be contravened by those parts of the treaty which declare that certain acts shall be deemed piracy, which constitute certain other things offences, and stipulate the reciprocal punishment of them by each.
5th.—It is also said that the Constitution is violated in relation to that provision which declares, that “no money shall be drawn from the treasury but in consequence of appropriations made by law”; by those parts of the treaty which stipulate compensations to certain commissioners, and indemnifications to Great Britain, in certain cases to be adjusted and pronounced by the commissioners; and, generally, by all those parts which may involve an expenditure of money.
6th.—The Constitution is said to be violated in that part which empowers Congress to dispose of, and make all needful rules and regulations respecting, the territory, or other property of the United States, by those provisions of the treaty which respect the adjustment of boundary in the cases of the rivers St. Croix and Mississippi.
Lastly.—The Constitution is said to be violated, in its provisions concerning the judiciary department, by those parts of the treaty which contemplate the confiding to the determination of commissioners certain questions between the two nations.
A careful inspection of the treaty, with these objections in view, will discover that of the twenty-eight articles which compose it, at least seventeen are involved in the charge of unconstitutionality; and that these seventeen comprise all the provisions which adjust past controversies, or establish rules of commercial intercourse between the parties. The other eleven, which are the 1st, 9th, 10th, 17th, 18th, 19th, 20th, 22d, 23d, 24th, and 28th, except the 1st, are made up of provisions which have reference to war; the first merely declaring that there shall be peace between the parties. And it is a question, even with respect to all of these, except the first and tenth, whether they also are not implicated in the charge; inasmuch as some of their dispositions have commercial relations. Is not this alone sufficient to bring under a strong suspicion the validity of the principles which impeach the constitutionality of the instrument?
It must have been observed that the argument in the last number is applicable to all the legislative powers of Congress, as well as to that of regulating trade, which was selected, by way of illustration, on the ground of its being common to all. Indeed the instance of the regulations of trade is that which is most favorable to the opposite doctrine, since foreign nations are named in the clause; the true intent of which, however, has been explained.
The same reasoning, too, would extend the power of treaties to those objects which are consigned to the legislation of individual States; but here the Constitution has announced its meaning in express terms, by declaring, that the treaties which have been and shall be made under the authority of the United States, shall be the supreme law of the land, any thing in the Constitution or laws of any State to the contrary notwithstanding. This manifestly recognizes the supremacy of the power of treaties over the laws of particular States, and goes even a step further.
The obvious reason for this special provision, in regard to the laws of individual states, is, that there might otherwise have been room for question—whether a treaty of the Union could embrace objects, the internal regulation of which belonged to the separate authorities of the States. But with regard to the United States there was no room for a similar question.
The power of treaty could not but be supposed commensurate with all these objects to which the legislative power of the Union extended, which are the proper subjects of compacts with foreign nations.
It is a question among some theoretical writers—whether a treaty can repeal pre-existing laws? This question must always be answered by the particular form of government of each nation. In our Constitution, which gives, ipso facto, the force of law to treaties, making them equal with the acts of Congress, the supreme law of the land, a treaty must necessarily repeal an antecedent law contrary to it; according to the legal maxim that “leges posteriores priores contrarias abrogant.”
But even in those forms of government, in which there may be room for such a question, it is not understood that a treaty containing stipulations which require the repeal of antecedent laws, is, on that account, unconstitutional and null. The true meaning is, that the antecedent laws are not, ipso facto, abrogated by the treaty; but the Legislature is, nevertheless, bound in good faith, under the general limitation stated in another place, to lend its authority to remove obstacles which previous laws might oppose to a fair execution of a treaty.
One instance of the inconsistency prevailing in the arguments against the treaty negotiated by Mr. Jay, is observable in this point. To get rid of the infractions of our treaty of peace with Great Britain by certain laws of particular States, it is strenuously maintained that treaties control the laws of States. To impeach the constitutionality of the treaty under consideration, it is objected that, in some points, it interferes with the objects of State legislation. The express provision of the Constitution in this particular, quoted above, has not been sufficient to check the rage for objection.
The absurdity of the alleged interferences will fully appear, by showing how they would operate upon the several kinds of treaties usual among nations. These may be classed under three principal heads: 1, treaties of commerce; 2, treaties of alliance; 3, treaties of peace.
Treaties of commerce are, of course, excluded; for every treaty of commerce is a system of rules devised to regulate and govern the trade between contracting nations; invading directly the exclusive power of regulating trade which is attributed to Congress.
Treaties of alliance, whether defensive or offensive, are equally excluded, and this on two grounds: 1. Because it is their immediate object to define a case or cases in which one nation shall take part with another in war, contrary, in the sense of the objection, to that clause of the Constitution which gives to Congress the power of declaring war; and 2. Because the succors stipulated, in whatever shape they may be, must involve an expenditure of money—not to say, that it is common to stipulate succors in money, either in the first instance or by way of alternative. It will be pertinent to observe incidentally, in this place, that even the humane and laudable provision in the seventeenth article, which all have approved, is within the spirit of the objection; for the effect of this is to restrain the power and discretion of Congress to grant reprisals, till there has been an unsuccessful demand of justice. Nothing can better illustrate the unreasonable tendency of the principle.
Treaties of peace are also excluded, or, at the least, are so narrowed as to be in the greatest number of cases impracticable. The most common conditions of these treaties are restitutions or cessions of territory, on one side or on the other, frequently on both sides—regulations of boundary—restitutions and confirmations of property—pecuniary indemnifications for injuries or expenses. It will, probably, not be easy to find a precedent of a treaty of peace, which does not contain one or more of these provisions, as the basis of the cessation of hostilities, and they are all of them naturally to be looked for in an agreement which is to put an end to the state of war between conflicting nations.
Yet they are all precluded by the objections which have been enumerated: pecuniary indemnifications, by that which respects the appropriations of money; restitutions or cessions of territory or property, regulations of boundary, by that which respects the right of Congress to dispose of, and make all needful rules and regulations concerning the territory and property of the United States. It is to be observed, likewise, that cessions of territory are almost always accompanied with stipulations in favor of those who inhabit the ceded territory, securing personal privileges and private rights of property; neither of which could be acceded to on the principles of that objection, which relates to the power of naturalization; for this power has reference to two species of rights, those of privilege and those of property. An act allowing a foreigner to hold real estate is so far an act of naturalization; since it is one of the consequences of alienism, not to be able to hold real estate.
It follows, that if the objections which are taken to the treaty, on the point of constitutionality, are valid, the President, with the advice and consent of the Senate, can make neither a treaty of commerce nor alliance, and rarely, if at all, a treaty of peace. It is probable, that on a minute analysis, there is scarcely any species of treaty which would not clash, in some particular, with the principle of those objections; and thus, as was before observed, the power to make treaties, granted in such comprehensive and indefinite terms, and guarded with so much precaution, would become essentially nugatory.
This is so obviously against the principles of sound construction; it, at the same time, exposes the Government to so much impotence in one great branch of political power, in opposition to a main intent of the Constitution; and it tends so directly to frustrate one principle object of the situation of a general government, the convenient management of our external concerns, that it cannot but be rejected by every discerning man who will examine and pronounce with sincerity. It is against the principles of sound construction; because these teach us, that every instrument is so to be interpreted, as that all the parts may, if possible, consist with each other, and have their effect. But the construction which is combated would cause the legislative power to destroy the power of making treaties. Moreover, if the power of the executive department be inadequate to the making of the several kinds of treaties which have been mentioned, there is, then, no power in the Government to make them; for there is not a syllable in the Constitution which authorizes either the legislative or judiciary departments to make a treaty with a foreign nation. And our Constitution would then exhibit the ridiculous spectacle of a government without a power to make treaties with foreign nations; a result as inadmissible as it is absurd; since, in fact, our Constitution grants the power of making treaties, in the most explicit and ample terms, to the President, with the advice and consent of the Senate. On the contrary, all difficulty is avoided, by distinguishing the province of the two powers, according to ideas which have been always familiar to us, and which were never exposed to any question till the treaty with Great Britain gave exercise to the subtilties of party spirit.
By confining the power to make laws within its proper sphere, and restricting its actions to the establishment of rules for our own nation and those foreigners who come within our jurisdiction, and by assigning to the power of treaty the office of concerting those rules of mutual intercourse and connection, between us and foreign nations, which require their consent as well as our own, allowing to it the latitude necessary for this purpose, a harmonious agreement is preserved between the different powers of the Government—that to make laws, and that to make treaties; between the authority of the legislative and the authority of the executive department. Hence—
Though Congress, by the Constitution, have power to lay taxes, yet a treaty may restrain the exercise of it in particular cases. For a nation, like an individual, may abridge its moral power of action by agreement; and the organ charged with the legislative power of a nation may be restrained in its operation by the agreements of the organ of its federative power, or power to contract. Let it be remembered, that the nation is the constituent, and that the executive, within its sphere, is no less the organ of its will than the Legislature.
Though Congress are empowered to make regulations of trade, yet they are not exclusively so empowered; but regulations of trade may also be made by treaty, and, where other nations are to be bound by them, must be made by treaty.
Though Congress are authorized to establish a uniform rule of naturalization, yet this contemplates only the ordinary cases of internal administration. In particular and extraordinary cases, those in which the pretensions of a foreign government are to be managed, a treaty may also confer the rights and privileges of citizens; thus the absolute cession and plenary dominion of a province or district possessed by our arms in war may be accepted by the treaty of peace on the condition that its inhabitants shall, in their persons and property, enjoy the privileges of citizens.
The same reasoning applies to all the other instances of supposed infraction of the legislative authority: with regard to piracies and offences against the laws of nations, with regard to expenditures of money, with regard to the appointment of officers, with regard to the judiciary tribunals, with regard to the disposal and regulation of the national territory and property. In all these cases, the power to make laws and the power to make treaties are concurrent and co-ordinate. The latter, and not the former, must act, where the co-operation of other nations is requisite.
As to what respects the commissioners agreed to be appointed, they are not, in a strict sense, officers. They are arbitrators between the two countries. Though in the Constitutions, both of the United States and of most of the individual States, a particular mode of appointing officers is designated, yet, in practice, it has not been deemed a violation of the provision to appoint commissioners or special agents for special purposes in a different mode.
As to the provision, which restricts the issuing of money from the treasury to cases of appropriation by law, and which, from its intrinsic nature, may be considered as applicable to the exercise of every power of government, it is, in no sort, touched by the treaty. In the constant practice of the Government, the cause of an expenditure, or the contract which incurs it, is a different thing from the appropriation for satisfying it. Thus the salary of a public officer is fixed by one law, the appropriation for its payment by another. So, the treaty only stipulates what may be a cause of expenditure. An appropriation by law will still be requisite for actual payment.
As to the disposal and regulation of the territory and property of the United States, this will be naturally understood of dispositions and regulations purely domestic, and where the title is not disputed by a foreign power. Where there are interfering claims of foreign powers, as neither will acknowledge the right of the other to decide, treaty must directly or indirectly adjust the dispute.
So far then it is from being true, that the power of treaty can extend to nothing upon which, in relation to ourselves, the legislative power may act, that it may rather be laid down as a general rule, that a treaty may do between different nations whatever the legislative power of each may do with regard to itself. The exceptions to this rule are to be deduced from the unfitness and inconvenience of its application to particular cases, and are of the nature of abuses of a general principle.
In considering the power of legislation in its relations to the power of treaty, instead of saying that the objects of the former are excepted out of the latter, it will be more correct, indeed it will be entirely correct, to invert the rule, and to say that the power of treaty is the power of making exceptions, in particular cases, to the power of legislation. The stipulations of treaty are, in good faith, restraints upon the exercise of the last-mentioned power. Where there is no treaty, it is completely free to act. Where there is a treaty, it is still free to act in all the cases not specially excepted by the treaty. Thus, Congress are free to regulate trade with a foreign nation, with whom we have no treaty of commerce, in such manner as they judge for the interest of the United States; and they are also free so to regulate it with a foreign nation with whom we have a treaty, in all the points which the treaty does not specially except. There is always, therefore, great latitude for the exercise of the legislative power of regulating trade with foreign nations, notwithstanding any treaties of commerce which may be formed.
The effects of a treaty to impose restraints upon the legislative powers may, in some degree, be exemplified by the case of the compacts which the Legislature itself makes, as with regard to the public debt. Its own compacts are, in good faith, exceptions to its power of action. Treaties with foreign powers, for obvious reasons, are much stronger exceptions.
no. xxxviii—and last
The manner in which the power of treaty, as it exists in the Constitution, was understood by the convention in framing it, and by the people in adopting it, is the point next to be considered.
As to the sense of the convention, the secrecy with which their deliberations were conducted does not permit any formal proof of the opinions and views which prevailed in digesting the power of treaty. But from the best opportunity of knowing the fact, I aver, that it was understood by all to be the intent of the provision to give to that power the most ample latitude—to render it competent to all the stipulations which the exigencies of national affairs might require; competent to the making of treaties of alliance, treaties of commerce, treaties of peace, and every other species of convention usual among nations; and competent, in the course of its exercise for these purposes, to control and bind the legislative power of Congress. And it was emphatically for this reason that it was so carefully guarded; the co-operation of two thirds of the Senate, with the President, being required to make any treaty whatever. I appeal for this, with confidence, to every member of the convention—particularly to those in the two houses of Congress. Two of these are in the House of Representatives, Mr. Madison, and Mr. Baldwin. It is expected by the adversaries of the treaty, that these gentlemen will, in their places, obstruct its execution. However this may be, I feel a confidence that neither of them will deny the assertion I have made. To suppose them capable of such a denial were to suppose them utterly regardless of truth. But though direct proof of the views of the convention on the point cannot be produced, yet we are not wholly without proof on this head.
Three members of the convention dissented from the Constitution: Mr. Mason, Mr. Gerry, and Mr. Randolph. Among the reasons for his dissent, published by Mr. Mason, we find this clause: “By declaring all treaties supreme laws of the land, the Executive and Senate have, in many cases, an exclusive power of legislation, which might have been avoided by proper distinctions with respect to treaties, and requiring the assent of the House of Representatives where it could be done with safety.” This shows the great extent of the power, in the conception of Mr. Mason: in many cases amounting to an exclusive power of legislation; nor did he object to the extent, but only desired that it should have been further guarded, by certain distinctions, and by requiring, in certain cases, the assent of the House of Representatives.
Among the objections to the Constitution, addressed by Mr. Gerry to the Legislature of Massachusetts, we find one to have been, “that treaties of the highest importance might be formed by the President, with the advice of two thirds of a quorum of the Senate.” This shows his idea of the magnitude of the power; and impliedly admitting with Mr. Mason, the propriety of its extent, he seems only to have desired that the concurrence of the Senate should have embraced two thirds of the whole body, instead of two thirds of a quorum. But how small and how insignificant would the power of treaty be, according to the doctrine lately promulgated, with regard to its constitutional limit?
As to the sense of the community in the adoption of the Constitution, this can only be ascertained from two sources: the writings for and against it, and the debates in the several State conventions, while it was under consideration.
I possess not, at this moment, materials for an investigation, which would enable me to present the evidence they afford; but I refer to them, with confidence, for proof of the fact, that the organization of the power of treaty in the Constitution was attacked and defended with an admission on both sides, of its being of the character which I have assigned to it. Its great extent and importance—its effect to control, by its stipulations, the legislative authority, were mutually taken for granted, and upon this basis it was insisted, by way of objection, that there were not adequate guards for the safe exercise of so vast a power; that there ought to have been reservations of certain rights, a better disposition of the power to impeach, and a participation, general or special, of the House of Representatives in the making of treaties.
The reply to these objections, acknowledging the delicacy and magnitude of the power, was directed to show that its organization was a proper one, and that it was sufficiently guarded.
The manner of exercising a similar power under the Confederation shall now be examined.
To judge of the similarity of the power it will be useful to quote the terms in which it was granted. They are these: “The United States in Congress assembled shall have the sole and exclusive right and power of entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners as their own people are subject to, or from prohibiting the importation or exportation of any species of commodities whatsoever.” (Article IX.)
It will not be disputed that the words “treaties and alliances” are of equivalent import, and of no greater force than the single word “treaties.” An alliance is only a species of treaty, a particular of a general;—and the power of “entering into treaties,” which terms confer the authority under which the former government acted, will not be pretended to be stronger than the power “to make treaties,” which are the terms constituting the authority under which the present government acts; it follows, that the power, respecting treaties, under the former, and that under the present government, are similar.
But though similar, that under the present government is more comprehensive; for it is divested of the restriction in the provision cited above, and is fortified by the express declaration, that its acts shall be valid notwithstanding the constitution or laws of any State. This is evidence (as was the fact) of a disposition in the convention to disembarrass and reinforce the power of treaty. It ought not to pass unnoticed, that an important argument results from the proviso, which accompanies the power granted by the Confederation as to the natural extent of this power. The declaration that no treaty of commerce shall be made restraining the legislative power of a State from imposing such duties and imposts on foreigners as their own people are subject to, or from prohibiting the importation or exportation of any species of commodities whatsoever, is an admission (1) that the general power of entering into treaties included that of making treaties of commerce, and (2) that without the limitation in the proviso, a treaty of commerce might have been made which would restrain the legislative authority of the State in the points interdicted by that proviso.
Let it not be said, that the proviso, by implication, granted the power to make treaties of commerce, under which Congress afterwards acted; for besides that this is inconsistent with the more obvious meaning of the clause, the first article of the Confederation leaves to the States individually every power not expressly delegated to the United States in Congress assembled. The power of Congress, therefore, to make a treaty of commerce, and every other treaty they did make, must be vindicated on the ground that the express grant of power to enter into treaties and alliances is a general, which necessarily included as particulars the various treaties they have made, and the various stipulations of those treaties.
Under this power, thus granted and defined, the alliance with France was contracted; guaranteeing, in the case of a defensive war, her West India possessions, and when the casus fœderis occurs, obliging the United States to make war for the defence of those possessions, and consequently, to incur the expenses of war.
Under the same power, treaties of commerce were made with France, the Netherlands, Sweden, and Prussia. Besides that every treaty of commerce is necessarily a regulation of commerce between the parties, it has been shown, in the antecedent comparison of those treaties with that lately negotiated, that they produce the specific effects of restraining the legislative power from imposing higher or other duties on the articles of those nations than on the like articles of other nations, and from extending prohibition to them which shall not equally extend to other nations the most favored; and thus abridge the exercise of the legislative power to tax, and the exercise of the legislative power to regulate trade.
These treaties likewise define and establish the same case of piracy which is defined in the treaty with Great Britain. Moreover, the treaty with France, as has been elsewhere shown, with regard to the rights of property, naturalizes the whole French nation.
The consular convention with France, negotiated, likewise, under the same power, grants to the consuls of that country various authorities and jurisdiction, some of a judicial nature, which are actual transfers to them of portions of the internal jurisdiction and ordinary judiciary power of the country, the exercise of which our government is bound to aid with its whole strength. It also grants exemptions to French consuls from certain kinds of taxes, and to them, and French citizens, from all personal service; all which are extremely delicate interferences with our internal policy and ordinary jurisdiction.
Under the same power, the treaty with Morocco was formed, which, besides various other regulations relative to war, and several relative to trade, contains the rule, that neither party shall make war without a previous demand of reparation; in restraint of the general discretionary power of Congress to declare war.
Under the same power, the treaty of peace with Great Britain was made. This treaty contains the establishment of a boundary line between the parties, which, in part, is arbitrary, and could not have been predicated upon precise antecedent right. It also prohibits the future confiscation of the property of adherents to Great Britain; declares that no person shall, on account of the part he took in the war, suffer any future loss or damage in his person, liberty, or property, and provides for the release of such persons from confinement, and the discontinuance of prosecutions against them.
It is difficult to conceive a higher act of control, both of the legislative and judiciary authority, than by this article. These provisions are analogous, in principle, to those stipulations which, in the second and ninth articles of the treaty under examination, have given occasion to constitutional objection.
Under the same power, various treaties with Indians, inhabiting the territory of the United States, have been made, establishing arbitrary lines of boundary with them, which determine the right of soil on the one side and on the other. Some of these treaties proceed on the principle of the United States having conquered the Indian country, and profess to make gratuitous concessions to them of the lands which are left to their occupation. There is also a feature of importance common to these treaties, which is the withdrawing of the protection of the United States from those of their citizens who intrude on Indian lands, leaving them to be punished at the pleasure of the Indians.
Hence it appears that, except as to the stipulations for appointing commissioners, the treaties made under the Confederation contain all the features, identically or by analogy, which create constitutional objections to the treaty before us: they restrain, in certain instances, the legislative power to lay taxes; they make numerous and important regulations of trade; they confer the benefit of naturalization as to property; they define cases of piracy; they create causes of expenditure; they direct and modify the power of war; they erect, within the country, tribunals unknown to our constitutions and laws, in cases to which these are competent—whereas the treaty with Great Britain only provides for the appointment of arbitrators in cases to which our tribunals and laws are incompetent; and they make dispositions concerning the territory and property of the United States.
It is true, that some of the treaties made under the former government, though subsequent to the proposing of the articles of confederation to the States, were prior to the final adoption of these articles; but still it is presumable that the treaties were negotiated with an eye to the powers of the pending national compact. Those with Great Britain, Sweden, Russia, and Morocco, and the convention with France, were posterior to the completion of that compact.
It may, perhaps, be argued that a more extensive construction of the power of treaty in the Confederation, than in our present Constitution, was countenanced by the union in the same body of legislative powers with the power of treaty. But this argument can have no force, when it is considered that the principal legislative powers, with regard to the objects embraced by the treaties of Congress, were not vested in that body, but remained with the individual States. Such are the power of specific taxation, the power of regulating trade, the power of naturalization, etc.
If in theory the objects of legislative power are excepted out of the power of treaty, this must have been equally, at least, the case with the legislative powers of the State governments as with those of the United States. Indeed the argument was much stronger for the objection, where distinct governments were the depository of the legislative power, than where the same government was the depository of that power and of the power of treaty. Nothing but the intrinsic force of the power of treaty could have enabled it to penetrate the separate spheres of the State governments. The practice under the Confederation for so many years, acquiesced in by all the States, is, therefore, a conclusive illustration of the power of treaty, and an irresistible refutation of the novel and preposterous doctrine which impeaches the constitutionality of that lately negotiated. If the natural import of the terms used in the Constitution were less clear and decisive than they are, that practice is a commentary upon them, and fixes their sense. For the sense in which certain terms were practised upon in a prior constitution of government, must be presumed to have been intended, in using the like terms in a subsequent constitution of government for the same nation.
Accordingly, the practice under the present government, before the late treaty, has corresponded with that sense.
Our treaties with several Indian nations regulate and change the boundaries between them and the United States. And in addition to compensations in gross, they stipulate the payment of certain specific and perpetual annuities. Thus a treaty in August, 1790, with the Creeks (article 5) promises them the yearly sum of one thousand five hundred dollars. And similar features are found in subsequent treaties with the Six Nations, the Cherokees, and the Northwestern Indians. This last has just been ratified by the unanimous voice of the Senate. It stipulates an annuity of 9,500 dollars, and relinquishes to the Indians a large tract of land which they had, by preceding treaties, ceded to the United States.
Hence we find that our former treaties under the present government, as well as one subsequent to that under consideration, contradict the doctrine set up against its constitutionality, in the important particulars of making dispositions concerning the territory and property of the United States, and binding them to raise and pay money. These treaties have not only been made by the President, and ratified by the Senate, without any impeachment of their constitutionality, but the House of Representatives has heretofore concurred, and without objection, in carrying them into effect, by the requisite appropriation of money.
The consular convention of France stands in a peculiar predicament. It was negotiated under the former government, and ratified under the present; and so may be regarded as a treaty of both governments, illustrative of the extent of the power of treaty in both. The delicate and even the extra-ordinary nature of the provisions it contains, have been adverted to. Though all reflecting men have thought ill of the propriety of some of them, as inconveniently breaking in upon our interior administration, legislative, executive, and judiciary, only acquiescing in them from the difficulty of getting rid of stipulations entered into by our public agents under competent powers, yet no question has been heard about their constitutionality. And Congress have, by law, assisted their execution by making our judicial tribunals, and the public force of the country, auxiliary to the decrees of the foreign tribunals which they authorize within our territory.
If it should be said that our Constitution, by making all former treaties and engagements as obligatory upon the United States, under that Constitution, as they were under the Confederation, rendered the ratification of the convention a matter of necessity, the answer is, that either the engagements which it contracted were already conclusive, or they were not; if the former, there was no need of a ratification; if the latter, there was no absolute obligation to it. And, in every supposition, a ratification by the President, with the consent of the Senate, could have been predicated only upon the power given in the present Constitution in relation to treaties; and to have any validity, must have been within the limit of that power.
But it has been heretofore seen that the inference from this instrument is no less strong, if referred to the power under the Confederation, than if referred to the power under the present Constitution.
How happens it, that all these invasions of the Constitution, if they were such, were never discovered, and that all the departments of the government, and all parties in the public councils, should have co-operated in giving them a sanction? Does it not prove that all were convinced, that the power of treaty applied in our exterior relations to objects which, in the ordinary course of internal administration and in reference to ourselves, were of the cognizance of the legislative power? and particularly that the former was competent to bind the latter in the delicate points of raising and appropriating money? If competent to this, what legislative power can be more sacred, more out of its reach?
Let me now ask (and a very solemn question it is, especially for those who are bound by oath to support the Constitution), has it not been demonstrated that the provisions in the treaty are justified by the true and manifest interpretation of the Constitution—are sanctioned by the practice upon a similar power under the Confederation, and by the practice in other instances under the present government?
If this has been demonstrated, what shall we think of the candor and sincerity of the objections which have been erected on the basis of a contrary supposition? Do they not unequivocally prove, that the adversaries of the treaty have been resolved to discredit it by every artifice they could invent? That they have not had truth for their guide, and consequently are very unfit guides for the public opinion, very unsafe guardians of the public welfare?
It is really painful and disgusting to observe sophisms so miserable as those which question the constitutionality of the treaty, retailed to an enlightened people, and insisted upon with so much seeming fervency and earnestness. It is impossible not to bestow on sensible men who act this part, the imputation of hypocrisy. The absurdity of the doctrine is too glaring to permit even charity itself to suppose it sincere. If it were possible to imagine that a majority in any branch of our government could betray the Constitution, and trifle with the nation, so far as to adopt and act upon such a doctrine, it would be time to despair of the republic.
There would be no security at home, no respectability abroad. Our constitutional charter would become a dead letter. The organ of our government for foreign affairs would be treated with derision whenever he should hereafter talk of negotiation or treaty. May the great Ruler of nations avert from our country so grievous a calamity!