Front Page Titles (by Subject) no. xxxiii - The Works of Alexander Hamilton, (Federal Edition), vol. 6
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no. xxxiii - 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 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.1
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.1
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”1 ; 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 Grotius1 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,1 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.
[1.]An opinion has been propagated that Sweden armed in concert with Denmark, in order to maintain the neutral right of carrying corn and flour to France, in opposition to the convention of March, 1793, between Great Britain and Russia; and that in consequence of this proceeding, the remonstrances of these powers have proved more successful than we have been in obtaining satisfaction from Great Britain
[1.]Vela, Restes et si quæ alia ad apparatum nauticum pertinent.
[1.]Quandoque tamen accidit ut et navium materia prohibeatur, si hostis ea quam maxime indigeat at absque ea commode bellum gerere haud possit.—Quæstionum Furis Publici, L. I., chap. x., page 80.
[1.]Book III., chaps. i., v.
[1.]Institutes of Natural Law, Book II., chaps. x., xix.