Front Page Titles (by Subject) no. xxxii - The Works of Alexander Hamilton, (Federal Edition), vol. 6
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no. xxxii - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 6 
The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 6.
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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.“ Heinecius1 countenances the same opinion, and even Grotius seems to lean towards it.1
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!1 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.
[1.]Law of Nature and Nations, Book II., chap. ix., sec. 201. Navibus ob vect.
[1.]Book III., chaps. i. and v., 3; chaps. i. and x.
[1.]As reasonable would it be to place to its account the similar order which was issued before the mission of an envoy was thought of.