To Thomas Jefferson
[Philadelphia, May 20–27, 1792]5
Mr. Hamilton presents his respectful Compliments to The Secretary of State. He has perused with as much care and attention as time has permitted the draft of a letter in answer to that of Mr. Hammond of March 5th.
Much strong ground has been taken and strongly maintained, particularly in relation to—
1 The recommendatory clauses of the Treaty6
2 The previous infractions by G Britain as to Negroes & Posts.7
3 The Question of Interest.8
And many of the suggestions of the British Minister concerning particular acts and adjudications, as far as can be judged without consulting the documents, appear to be satisfactorily obviated.
But doubts arise on the following particulars—
1. The expediency of the retaliation in the 1. 2 & 3d. Pages.9 Much of the propriety of what is said depends on the question of the original right or wrong of the war. Should it lead to observations on that point, it may involve an awkward and irritating discussion. Will it not be more dignified as well as more discreet to observe concisely and generally on the impropriety of having deduced imputations from transactions during the war, and alluding in the aggregate and without specification to the instances of Legislative Warfare on the part of the British Parliament which might be recriminated, to say, that this is foreborne as leading to an unprofitable and unconciliating discussion?10
2 The soundness of the doctrine (page 4) that all Governmental acts of the States prior to the 11 of April are out of the discussion.11 Does not the term “sujets,” to whom, according to Vatel, notice is necessary, apply merely to Individuals? Are not states members of a fœderal league the “parties contractantes” who are bound by the treaty itself from the time of its conclusion; that is, in the present case, from the time the provisional treaty took effect by the ratification of the preliminary articles between France & Britain?12
3 The expediency of so full a justification of the proceedings of certain states with regard to Debts.13 In this respect, Extenuation rather than Vindication would seem to be the desireable course. It is an obvious truth and is so stated that Congress alone had the right to pronounce a breach of the Treaty and to fix the measure of retaliation. Not having done it the states which undertook the task for them contravened both their Fœderal duty and the Treaty. Do not some of the Acts of Congress import that the thing was viewed by that body in this light? Will it be well for the Executive now to implicate itself in too strong a defence of measures which have been regarded by a great proportion of the Union and by a respectable part of the citizens of almost every state as exceptionable in various lights? May not too earnest an apology for installment and paper-money laws, if made public hereafter, tend to prejudice somewhat the cause of good government and perhaps to affect disadvantageously the character of the General Government?
To steer between too much concession and too much justification in this particular is a task both difficult and delicate—but it is worthy of the greatest circumspection to accomplish it.14
4 The expediency of risking the implication of the tacit approbation of Congress of the “retaliations of the four states” by saying that they neither gave nor refused their sanction to those retaliations? Will not the national character stand better if no ground to suspect the connivance of the National Government is afforded? Is not the fact, that Congress were inactive spectators of the Infractions which took place, because they had no effectual power to controul them?15
5 The truth of the position which seems to be admitted (Page 57) that the quality of Alien Enemy subsisted till the Definitive Treaty.16 Does not an indefinite cessation founded too on a preliminary Treaty, put an end to the State of War and consequently destroy the relation of alien enemy. The State of War may or may not revive if points which remain to be adjusted by a definitive Treaty are never adjusted by such a treaty—but it is conceived that a definitive Treaty may never take place and yet the state of War and all its consequences be completely terminated.17
6 The expediency of grounding any argument on the supposition of either of the parties being in the wrong as in Page 65.18 The rule in construing Treaties is to suppose both parties in the right, for want of a common judge &c. And a departure from this rule in argument might possibly lead to unpleasant recrimination.19
The foregoing are the principal points that have occurred on one perusal. They are submitted without reserve. Some lesser matters struck which would involve too lengthy a commentary. Many of them merely respecting particular expressions. A mark thus + ⟨is⟩ in the margin of the places, which will probably suggest to the Secretary of State, on a revision, the nature of the reflections which may have arisen. It is imagined that there is a small mistake in stating that Waddington paid no rent.20
AL, Thomas Jefferson Papers, Library of Congress; copy, Hamilton Papers, Library of Congress.
5. In JCHW description begins John C. Hamilton, ed., The Works of Alexander Hamilton (New York, 1851–1856). description ends , IV, 141, this letter is dated “March, 1791” and in HCLW description begins Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York, 1904). description ends , IV, 354, it is dated “March, 1792.”
6. The treaty of peace of 1783 between the United States and Great Britain provided that the states should place no impediments in the way of the collection of debts owed to British merchants and that Congress should earnestly recommend to the states the restitution of confiscated Loyalist property.
7. H is referring to Negroes taken by the British at the conclusion of the American Revolution and to British retention of the western posts in violation of the terms of the peace treaty. These infractions, Jefferson had argued, occurred before the American violations of the treaty.
8. Jefferson had denied the British contention that interest on American debts to British merchants should be paid for the years of the War of Independence.
9. To prove that “legislative warfare” was begun by the British, Jefferson had cited a list of acts passed by Parliament before the American Revolution. Among these acts, Jefferson cited 16 Geo. III, C. 5 (1776), which made American ships on the high seas legal prizes in Britain. Jefferson called this act “confiscation, by wholesale,” whereas American acts, which Hammond had maintained were violations of the peace treaty, Jefferson believed “retaliated but on the small scale of individual confiscation.”
10. Jefferson’s comment on H’s objection reads as follows: “1. The retaliating clause is struck out, and only a general allusion to the instances of legislative warfare by the British parliament, as here proposed.”
11. Jefferson had stated that, while Congress on March 24, 1783, received “informal intelligence from the Marquis de la Fayette that Provisional articles were concluded,” it was not until April 11 that Congress received “an official copy of these articles from Doctor Franklin, with notice that a Preliminary treaty was now signed between France, Spain & England.” These facts, Jefferson wrote Hammond, “place all acts preceding the 11th. of April out of the present discussion, & confine it to the treaty itself, and the circumstances attending it’s execution.
12. Jefferson made the following comment on H’s objection: “2. The reason of the rule will guide it’s application to particular cases, and prove the 11th. of April to be the true time after which acts of the state legislatures inconsistent with the treaty became wrongful. Notice alone of a law, renders an action against that law criminal in pure theory but as the proof of individual notice, would, in most cases be impossible, societies have been obliged to adopt the rule that promulgation is individual notice. This then fixes the point of time at which a law or a treaty becomes a rule of action for subjects, or those who have no other means of knowing it. But the Executives of the two nations have a knowledge of the transaction from it’s first embryon to it’s perfection. They are the ‘parties contractantes’ of Vattel, and the ‘paciscentes’ of Wolf cited. 48. though they do not transact the Business in person, but by Plenipotentiaries, at some distance from themselves, yet the correspondence with these Plenipotentiaries through the whole is understood to be so constant, and every proposition which passes is so immediately communicated, that, tho’ at a distance, they know in fact what is doing, and hence their real knowledge is dated from the signature, and their acts must conform to it from that instant, though the formal knowledge may come to them some days later. But our State legislatures had no such constant communication of the progress of the negotiation; they had no privity with it at all. As to matters of treaty, the State governments were mere subjects. Their actions, like those of corporations in England, or like any other individuals, can only be governed by the promulgation, which, therefore, is the term for their conformity. They are the ‘sujets’ of Vattel and ‘subditi’ of Wolf in the passages before referred to.”
13. H is referring to Jefferson’s defense of various state laws which hindered collection of debts owed to British creditors. Jefferson’s vindication of these laws rested on the precedent set by British infractions of the treaty of peace.
14. On this objection, Jefferson commented as follows: “3. the 1st: question is Whether this Ground is defensible? the 2nd. Whether it ought to be abandoned? It cannot be disputed that Great Britain has been guilty of the first infractions; that these infractions have been highly injurious to us, that when one party has witheld execution of any article of a Treaty, the other has a right to retaliate by equivalent inexecutions. Had Congress after the first refusal to evacuate the posts, (the holding of which with an armed force, was, and is, a continuance of the war on that part of our territory) declared firmly, that they would withold the execution of the article for opening the Courts of Justice, in all the States, till all the States should be completely evacuated, it would have been justifiable. Can a part of the act then be less justifiable than the whole? If a refusal to open the courts in every State would have been right, can a refusal in a few States be wrong, and even in these, not an absolute refusal, but a permission under modifications? It was a refusal in fact to such Creditors only, as did not chuse to prosecute under those modifications. Whether this partial retaliation has been by Congress, by the States, or by Individuals, which form collectively the one party to the agreement, is a question which the other party has no right to ask. It is a point of internal order between Congress and those who undertook to act, and which they alone are competent to question, or decide. Congress, it is true, may disavow the retaliation. This will make it a wrongful act from the Beginning, and thereby render the Union, in the first instance, and the retaliating States ultimately, liable to make good the damage sustained by the adverse party, though the aggressor. But Congress have a right also to avow the act, if nothing else is wanting to make it rightful: or without either avowal or disavowal, to demonstrate to Great Britain, that, as to her, it was right. And this is what has been attempted in the answer under consideration.
“Shall this ground be abandoned? There is certainly room to suspect that Great Britain means to come forward with a demand of indemnification to her citizens for the debts pretended to have been lost through our wrong. If we have been guilty of a wrong, we must make good the losses it has occasioned. But if nothing more than a moderate and justifiable retaliation has taken place, we are liable for nothing. Will the Executive undertake to say that an unreasonable retaliation has taken place? to subject the Union, or the retaliating States to the demand of indemnification? to commit the nation by a language of extenuation, which is pleading guilty, when vindication is truth? If any respectable part of our citizens have regarded these measures as exceptionable, with respect to Great Britain, they have been misled either by the bold assertions of the opposite interest, or from a want of knowledge of the facts, or of industry to put them together, and to form a judgment for themselves. Whenever they shall know and consider them, they will condemn any complaisance we might now shew to their uninformed and premature opinions. I am therefore of opinion that Great Britain cannot say we have done wrong in retarding in the moderate degree we have done, execution of some parts of the treaty, as an equivalent to what she had previously refused to fulfil on her part; that she cannot found on that any claim of indemnification for debts lost by lapse of time; and that the justifiable rights of our country ought not to be given up by those whom they have appointed and trusted to defend them where they may be justly defended.”
15. H is referring to Jefferson’s statement: “That Congress had so far thought it best neither to declare, nor relinquish, the infractions of the other party, neither to give, nor refuse, their sanction to the retaliations by the four states.” In the body of the report Jefferson lists five states (Virginia, South Carolina, Rhode Island, New Jersey, and Georgia) which had modified the conditions of debt recovery for British merchants. Jefferson commented on H’s objections as follows: “4. the passage here alluded to is in the Recapitulation II. 3. It is struck out, and it stands now that Congress induced by assurances from the British court, &c. required from the States a repeal, &c.”
16. In describing the opinion of a Georgia court, Jefferson had written: “… it is impossible to say that a treaty is become a law of the land as soon as it is provisionally signed only, & consequently to say that at the time Judge [George] Walton gave this opinion, the law of the land was repealed which denied to Alien enemies the right of maintaining suits.” Jefferson modified this statement as follows: “And the Judge seems to have been of opinion that it was necessary the treaty should be definitively concluded, before it could become a law of the land, so as to change the legal character of an alien enemy, who cannot maintain an action, into that of an alien friend who may.”
17. Jefferson’s comment on H’s fifth objection reads as follows: “5. I rather consider a preliminary Treaty as establishing certain heads of agreement, and a truce, till these and others can be definitively arranged; as suspending acts of hostility, but not changing the legal character of enemy into that of friend. However as this might be susceptible of a contradiction not worth our while to excite in this instance, I have struck out all affirmation of the position, and observed that whether Judge Walton was right or wrong in supposing that between the Preliminary and Definitive articles no subject of either party could maintain an action in the Courts of the other, the interval was so short, and this probably the only instance of an action essayed, that it is not worth an investigation.”
18. In writing of the British complaint that American debtors had not paid interest on debts during the war, Jefferson had said: “… that it is a rule of natural, as well as municipal, law, that in questions de damno evitando, melior est conditio possidentis. If this maxim be just where each party is equally innocent, how much more so, where the loss has been produced by the wrong of the creditor?”
19. To H’s sixth objection Jefferson made the following answer: “6. The word wrong, in the passage here alluded to 54. is struck out, and the word act substituted. We may say with truth that it was by their act we were hindered from paying interest, while, not qualifying it with epithet either of right or wrong, they are free to consider it as the former, while we do tacitly as the latter.”
20. In answering this paragraph, Jefferson wrote: “Wherever the mark + has been found, and it’s object understood, the passage has been corrected. They seem principally to have been affixed to those passages susceptible of being softened in the manner of expression. In some instances they were not understood. The mistake in the case of Wadington V Rutgers is corrected.”
In section 41 of his draft, Jefferson had stated that Joshua Waddington had occupied Elizabeth Rutgers’s brewhouse part of the time by permission of the quarter-master general and for the rest of the time by permission of the British commanding officer, “and during no part of it had he paid any rent.” Jefferson deleted this section to accord with information which H sent to him in a letter dated April 19, 1792. Jefferson used H’s letter of April 19 as Item No. 46 in the letter he wrote to Hammond on May 29, 1792.