Front Page Titles (by Subject) no. xxxiv 1 - The Works of Alexander Hamilton, (Federal Edition), vol. 6
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no. xxxiv 1 - 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 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].
[1.]John C. Hamilton says (History of the Republic, vi., 273): “It is perceived …that the first twenty-two numbers, the original drafts of which are in Hamilton’s autograph, were exclusively his. Of the remaining essays, ten, Nos. 23 to 30, both included, 34 and 35, were from another pen, with frequent alterations, interlineations, and additions by Hamilton. The residue of the numbers, being six, are also Hamilton’s exclusively.” Rufus King assisted Hamilton in the essays of Camillus, and to him the authorship of Nos. 34 and 35, as well as Nos. 23 to 30, inclusive, may be attributed.