Front Page Titles (by Subject) no. xxxv - The Works of Alexander Hamilton, (Federal Edition), vol. 6
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no. xxxv - 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 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.1 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.
[1.]See Mr. Jefferson’s letter of September 9, 1793, to Mr. Hammond; also his letter of the same date to Mr. Van Berckel.