The Defence No. III1
[New York, July 29, 1795]
The opposers of the Treaty seem to have put invention on the rack, to accumulate charges against it, in a great number of cases, without regard even to plausibility. If we suppose them sincere, we must often pity their ignorance; if insincere, we must abhor the spirit of deception which it betrays. Of the preposterous nature of some of their charges, specimens will be given in the course of these remarks; though while nothing, which is colorable, will remain unattended to, it were endless to attempt a distinct refutation of all the wild and absurd things which are and will be said. It is vain to combat the vagaries of diseased imaginations. The monsters they engender are no sooner destroyed, than new legions supply their places. Upon this, as upon all former occasions, the good sense of the people must be relied upon, and it must be taken for granted, that it will be sufficient for their conviction to give solid answers to all such objections as have the semblance of reason; that now, as heretofore, they will maintain their character abroad and at home, for deliberation and reflection, and disappoint those who are in the habit of making experiments upon their credulity; who treating them as children, fancy that sugar plumbs and toys will suffice to gain their confidence and attachment and to lead them blind fold, whithersoever it is desired.
In considering the treaty, it presents itself under two principal heads; the permanent articles, which are the first ten, and which, with some supplementary provisions, adjust the controverted points between the two countries; the temporary articles, which are all the remaining ones, and which establish the principles of mutual intercourse, as to general navigation and commerce. The manner of the discussion will correspond with this natural division of the subject.
An objection meets the treaty at the threshold. It is said that our envoy abandoned the ground which our government had uniformly held, and with it our rights and interests as a nation, by acceding, in the preamble of the treaty, to the idea of terminating the differences between the two countries, “in such a manner as, without reference to the merits of their respective complaints and pretentions, may be best calculated to produce mutual satisfaction and good understanding.”2
It is observed in support of this, that our government has constantly charged the first breaches of the treaty upon Great Britain, in the two particulars of carrying away the negroes, and detaining the posts;3 that while the evacuation of New-York was going on, a demand of the surrender of the negroes was made by Congress,4 through our Commander in Chief, which not being complied with, Commissioners were sent to ascertain the number carried away,5 with a view to a claim of compensation; that early and repeated applications were also made for the surrender of the Western Posts, which not only was not done but it is proved by the circumstances, that orders were not given for it according to the true intent of the treaty, and that there was, from the beginning, a design to infract and a virtual infraction of the article with respect to this object—all this, it is alledged, has been the uniform language of our government, and has been demonstrated by Mr. Jefferson to be true, in his letter to Mr. Hammond, of the 29th of May, 1792;6 and it is asserted that the ground ought not to have been given up by Mr. Jay, because it was the standard of the mutual rights and duties of the parties, as to the points unexecuted of the treaty of peace.
A proper examination of these matters is therefore called for, not only by the specific objection which is made to the principle which is contained in the preamble, but by the influence which a right solution is calculated to have, in giving a favourable or unfavourable complexion to the whole plan of the adjustment.
It is true, as suggested, that our government has constantly charged as breaches of the treaty by Great Britain, the two particulars which have been stated; but it is believed to be not true, that it has uniformly charged them as first breaches of the treaty. Individuals may have entertained this idea. The state of Virginia seems to have proceeded upon it in some public acts;7 but as far as is recollected, that ground was never formally or explicitly taken by the government of the United States, till in the above mentioned letter from Mr. Jefferson to Mr. Hammond, when, for the first time, an attempt was made to vindicate or excuse the whole conduct of this country, in regard to the treaty of peace, contrary, I will venture to say, to the general sense of well informed men.
The most solemn act of our government on this head, is an address of Congress to the different States of the 13th of April, 1787.8
This address admits contraventions of the treaty on our part, and instead of deriving either justification or extenuation of them from prior infractions by Great Britain, urges the different states to a repeal of all contravening laws.
But if the fact, in this respect, were admitted to be as stated by the adversaries of the treaty, it would not authorise their conclusion.
It would not follow, that, because the ground had been taken by the government, it ought to have been pertinaciously kept. If upon fair examination it had appeared to be not solid, or if an adherence to it would have obstructed a reasenable adjustment of differences.
Nations, no more than individuals, ought to persist in error, especially at the sacrifice of their peace and prosperity; besides, nothing is more common in disputes between nations, than each side to charge the other with being the aggressor or delinquent. This mutual crimination, either from the nature of circumstances or from the illusions of the passions, is sometimes sincere; at other times it is dictated by pride or policy. But in all such cases where one party is not powerful enough to dictate to the other, and where there is a mutual disposition to avoid war; the natural retreat for both is in a compromise, which waves the question of first aggression or delinquency. This is the salva for national pride; the escape for mutual error; the bridge by which nations, arrayed against each other, are enabled to retire with honor; and without bloodshed, from the field of contest. In cases of mutual delinquency, the question of the first default is frequently attended with real difficulty and doubt. One side has an equal right with the other, to have and maintain its opinion. What is to be done when the pride of neither will yield to the arguments of the other? War, or a waver of the point, is the alternative. What sensible man, what humane man will deny that a compromise, which secures substantially the objects of interest, is almost always preferable to war on so punctilious and unmanageable a point?
Reject the principle of compromise, and the feuds of nations must become much more deadly than they have heretofore been. There would scarcely ever be room for the adjustment of differences without an appeal to the sword; and when drawn, it would seldom be sheathed but with the destruction of one or the other party. The earth now too often stained, would then continually stream with human gore.
From the situation of the thing, and of the parties, there never could be a rational doubt that the compromising plan was the only one on which the United States and Great Britain could ever terminate their differences without war; that the question, who was the first delinquent, would have been an eternal bar to accommodation, and consequently that a dismission of that question was a prerequisite to agreement. Had our envoy permitted the negociation to be arrested by obstinacy on this head, he would have shewn himself to be the diplomatic pedant, rather than the able negociator, and would have been justly chargeable with sacrificing to punct[i]lio, the peace of his country. It was enough for him, as he did, to ascertain by a preliminary discussion, the impossibility of bringing the other party to concede the point.
An impartial survey of the real state of the question, will satisfy candid and discerning men, that it was wise and politic to dismiss it. This shall be attempted.
[It has been observed that two breaches of the Treaty of peace are charged upon Great Britain, the carrying away of the negroes and the detention of the posts. It remains to investigate the reality of these breaches and to fix the periods when they can be said to have happened.
As to the negroes, the true sense of the article in the Treaty of peace which respects them is disputed.
The words of the stipulation are (Article 7) that “His Britannic Majesty shall with all convenient speed and without causing any destruction or carrying away any negroes or other property of the American Inhabitants withdraw all his armies garrisons and fleets from the U States.”9
These terms admit of two constructions, one that no negroes or other articles which had been American property should be carried away—the other that the evacuations were to be made without depredation, consequently that no new destruction was to be committed and that negroes or other articles which at the time of the cessation of hostilities continued to be the property of the American inhabitants unchanged by the operations of War should be foreborne to [be]10 carried away.
The first is the construction which was adopted by this country—the last is that insisted upon by Great Britain.
The arguments which support her construction are these—
1 The established laws of War give to an enemy the use and enjoyment during the war of all real property of which he obtains possession, and the absolute ownership of all personal property which falls into his hands. The latter is called booty, and except Ships becomes vested in the Captors the moment they acquire a firm possession. With regard to Ships it seems to be a general rule of the Marine law that condemnation is necessary to the complete investment of the property in the Captor.
II Negroes by the laws of the states in which slavery is allowed are personal property.11 They therefore on the principle of those laws like horses, cattle and other moveables were liable to become booty—and belonged to the enemy as soon as they came into his hands. Belonging to him he was free either to apply them to his own use or to set them at liberty. If he did the latter the grant was irrevocable—restitution was impossible. Nothing in the laws of Nations or in those of Great Britain will authorise the resumption of liberty once granted to a human being.12
III The negroes in question were either taken in the course of military operations or they joined the British army upon invitation by proclamation. However dishonorable to Great Britain the latter may have been as an illiberal species of warfare, there is no ground to say that the strict rules of war did not warrant it or that the effect was not in the one case as well as the other a change of propery in the thing.
IV The stipulation relates to “negroes or other property of the American inhabitants,” putting Negroes upon the same footing with any other article. The characterickstic of the subject of the stipulation being property of American Inhabitants, whatever had lost that character could not be the object of the stipulation. But the negroes in question by the laws of war had lost that character. They were therefore not within the stipulation.
Why did not the U States demand the surrender of captured vessels and of all other moveables which had fallen into the hands of the enemy? The answer is because common sense would have revolted against such a construction. No one could believe that an indefinite surrender of all the spoils or booty of a seven years war was ever intended to be stipulated.
And yet the demand for a horse or an ox or a piece of furniture would have been as completely within the terms “negroes and other property” as a negro. Consequently the reasoning which proves that one is not included excludes the other.
The silence of the U States as to every other article is therefore a virtual abandonment of that sense of the stipulation which requires the surrender of Negroes.
V In the interpretation of Treaties things odious or immoral are not to be presumed. The abandonment of negroes, who had been induced to quit their Masters on the faith of Official proclamations promising them liberty, to fall again under the yoke of their masters and into slavery is as odious and immoral a thing as can be conceived. It is odious not only as it imposes an act of perfidy on one of the contracting parties; but as it tends to bring back to servitude men once made free. The general interests of humanity conspire with the obligations which Great Britain had contracted towards the Negroes to repel this construction of the Treaty if another can be found.
VI But Another and a less exceptionable construction is found in considering the clause as inserted, for greater caution, to secure evacuations without depredation. It may be answered, that this was superfluous, because hostilities having ceased the stipulation to surrender implied of itself that it was to be done without depredation. But to this the reply is that a part of the clause manifestly contemplates the case of new depredations and provides a guard against it in the promise that the evacuations shall be made without causing any destruction. To cause destruction is to do some new act of violence. This reflection destroys the argument drawn from the superfluousness of the stipulation in the sense here given to it, and by shewing that it must have such a sense in one part authorises the conclusion that the remainder of the clause has a similar sense. The connection of the two things as parts of one sentence confirms this inference.]13
These arguments certainly have great weight, and do not admit of easy refutation. It is a fact too, that the opinions of some of the ablest lawyers of our own country have, from the beginning, corresponded with the construction they enforce.
It is not enough for us to be presuaded, that some of the negociators, who made the peace, intended the article in our sense. It is necessary that it should be found in the instrument itself, and from the nature of it, ought to have been expressed with clearness and without ambiguity. If there be real ambiguity in such a case, the odiousness of the effect will incline the scale against us.
It does not remove the difficulty to say, that compensation for the negroes might have been a substitute for the thing. When one party promise a specific thing to another, nothing but the thing itself will satisfy the promise. The party to whom it is made cannot be required to accept in lieu of it an equivalent. It follows, that compensation for the negroes would not have been a performance of the stipulation to forbear to carry them away, and therefore, if there be any thing odious in the specific thing itself, the objection to the interpretation which requires it, is not done away by the idea of substituting compensation. For the article does not admit such substitution, and its sense cannot be defined by what it does not admit.
Some colour to our sense of the article results from these expressions in the same clause, “leaving in all fortifications, the American artillery that may be therein.” But this expression is not of equivalent force to that of property of American inhabitants. For example, suppose an American ship to have been captured and condemned, it might still be said of her in a certain sense, this is an “American ship” alluding to the country of which she had been the ship, but it could not be said in any sense of her, this ship is American property, or the property of American inhabitants. The country of which a thing was, may often be used with aptness as a term of description of that thing, though it may have changed owners; but the term property, which is synonimous with ownership, can never be used in the present tense as descriptive of an ownership which has ceased. Moreover, if the expressions in the two cases had been (as they are not) of equivalent force, it would not follow that they were to have the same meaning in both cases, being applied to different matters. For an odious consequence in one instance would be a reason for rejecting a particular sense of a word or phrase, which would be proper in another, to which no such consequence was attached.
Let me now ask this question of any candid man. Is our construction of the article respecting the negroes, so much better supported than that of Great Britain, as to justify our pronouncing with positiveness that the carrying them away was a breach of the treaty?
To me it appears clear, that this must be considered, speaking favorably for us, as a very doubtful point, and that we cannot with confidence predicate a breach of the treaty by Great Britain upon this event. If it was one it happened in May 1783.14
The affair of the western posts is now to be examined; that the detention of them, after the proper point of time for delivering them up, was a breach of the treaty, will not bear dispute. But what that proper time was, is a serious question between the parties.
Our government has contended, that the posts ought to have been surrendered with all convenient speed after the provisional treaty took effect, and Mr. Jefferson, who is much cited on the present occasion, has shewn, by an ingenious and elaborate deduction of circumstances, that this was not only not done, but never intended.15
But Mr. Jefferson has not even discussed the question, whether the provisional or the definitive treaty was the act from which the obligation to perform was to date.16 This is an important omission, for Great Britain affirms the definitive treaty to be the criterion.
As an original question much might be said on both sides. The natural relation of the terms provisional or preliminary and definitive seems to exhibit the former as inchoate and imperfect, and to refer to the latter the conclusive obligatory force and legal perfection. There is room therefore to say, that all but the mere cessation of hostilities, or for the execution of which there is no precise point of time fixed in the preliminary articles, is referred to the definitive treaty.
On the other hand, it may be argued, that a preliminary treaty, is as much a national treaty as a definitive one, both being made by an equal and the competent authority, and that there is no good reason why those things which are sufficiently regulated by the preliminary, should not go into immediate and complete effect, equally as if regulated by the definitive treaty, or why the latter should be considered as any thing more than an instrument for adjusting points which may have been left open by the preliminary articles, and for giving more perfect form. Accordingly, there are examples of preliminary treaties going into mutual and full execution, though never followed by definitive treaties.
But, however, this question may have stood on principle, the conduct of our government in the particular case has settled it against us, and has completely sanctioned the doctrine of Great Britain.
If performance was to date from the provisional articles, this applies as well to us as to Great Britain. It was incumbent upon Congress to have notified the treaty with the proper solemnities to the different States and their citizens; to have made the recommendations stipulated by the fifth article,17 and to have enjoined the observance of all those things which were promised on our part. The nature of some of these stipulations rendered it particularly urgent that no time should be lost. But all was deferred till after the ratification in this country of the definitive treaty. The 15th day of January 1784, is the date of the act which attempts to carry the treaty into effect on our part.18 This then is a practical settlement by ourselves of that principle that performance was to date from the definitive treaty.
It is no objection to the position, that our sea-ports were previously evacuated; that was matter of mutual convenience, and though done does not change the state of strict obligation between the parties. Even in the view of liberal and conciliating procedure, the prompt surrender of our sea-ports are, for obvious reasons, very different things.
But our dilemma is this, if the delay of orders for evacuating the western posts, previous to the ratification of the definitive treaty, was on the part of Great Britain a breach of treaty, our delay to act upon the points stipulated by us till after that ratification, must have been equally a breach of treaty; and it must have been at least cotemporary with any breach that could have been committed by Great Britain.
We are compelled then by our own example to agree with Great Britain that she was not obliged to surrender the western posts till after the mutual ratification of the definitive treaty, and to abandon the superstructure, however soothing to our wishes, which has been reared upon a different foundation. If so, we must look to the period of the exchange of the ratification in Europe for the date of the orders for evacuating. I have not in my possession materials for fixing with accuracy that period, but considering the time of the ratification here, and the time of its probable arrival in England, we are carried to the latter end of April or beginning of May 1784;19 so that it is not till about May 1784 that we can charge upon Great Britain a delinquency as to the surrender of the posts.
Having now examined the nature of the infractions of the treaty of peace charged upon Great Britain with reference to dates, I shall, in the next number of this defence, trace some instances of infraction on our part with a like reference. The conclusions to be drawn from this comparison, if I mistake not, will greatly disconcert some articles of the prevailing creed on this head, and go far towards confirming what was preliminarily offered to evince the prudence of our Envoy in relinquishing the favourite ground.
The [New York] Argus, or Greenleaf’s New Daily Advertiser, July 29, 1795; ADf (fragment), Hamilton Papers, Library of Congress.
1. For background to this document, see the introductory note to “The Defence No. I,” July 22, 1795.
The material within brackets in this document has been taken from H’s draft in the Hamilton Papers, Library of Congress.
2. The preamble to the Jay Treaty is printed in full in Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 245. For examples of the kinds of criticism of the treaty mentioned by H in this and the following paragraphs, see the first installment of Alexander J. Dallas’s “Features of Jay’s Treaty,” Dunlap and Claypoole’s [Philadelphia] American Daily Advertiser, July 18, 1795; the first article by “Decius” (Brockholst Livingston) in The [New York] Argus, or Greenleaf’s New Daily Advertiser, July 10, 1795; and the first and second articles by “Cato” (Robert R. Livingston) in The [New York] Argus, or Greenleaf’s New Daily Advertiser, July 15, 17, 1795. For the authorship of the “Decius” and “Cato” articles, see the introductory note to “The Defence No. I,” July 22, 1795.
3. For Article 7 of the definitive treaty of peace of 1783 to which H is referring, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 19.
4. On April 15, 1783, Congress “Resolved, That the Commander in Chief be, and he is hereby instructed to make the proper arrangements with the Commander in Chief of the British forces, for receiving possession of the posts in the United States occupied by the troops of his Britannic Majesty; and for obtaining the delivery of all negroes and other property of the inhabitants of the United States in the possession of the British forces …” (JCC description begins Journals of the Continental Congress 1774–1789 (Washington, 1904–1937). description ends , XXIV, 242–43).
5. See “Continental Congress. Report on Proposal of Sir Guy Carleton,” April 22, 1783. See also JCC description begins Journals of the Continental Congress 1774–1789 (Washington, 1904–1937). description ends , XXIV, 436; Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (Washington, 1921–1938). description ends , VIII, 62, 103.
6. ADf, Thomas Jefferson Papers, Library of Congress. Jefferson’s letter to George Hammond is printed in ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, I, 201–37.
9. See note 3.
10. In MS this is written as “the.”
11. By 1795 slavery had been abolished in Rhode Island, Vermont, Massachusetts, New Hampshire, Pennsylvania, and Connecticut.
12. For example, Sir William Blackstone states: “And now it is laid down, that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, and his property” (Commentaries on the Laws of England. In Four Books. By Sir William Blackstone, Knt. One of the Justices of His Majesty’s Court of Common Pleas. The Tenth Edition, With the Last Corrections of the Author; Additions by Richard Burn, LL.D. And Continued to the Present Time, By John Williams, Esq. [London: Printed for A. Strahan; T. Cadell, in the Strand; and D. Prince, Oxford, 1787], I, 424). Pufendorf, implying a contractual relationship between master and slave, argued against the resumption of slavery once the original contract had been broken. “… Persons,” he wrote, “cannot be challeng’d by any other Title, than what ariseth from their own Consent, or from some antecedent Deed, in which they are concern’d. And therefore, that Right being now extinct, which the Victor by War obtain’d over his Slave, natural Liberty returns …” (Of the Law of Nature and Nations, Book VI, Ch. III, Sec. XI).
13. H endorsed the draft: “Notes on the Treaty between the U States & G Britain For the President.” No evidence has been found that H sent this to George Washington.
14. See “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 20. This letter is printed in ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, I, 201–37.
15. See Jefferson to Hammond, May 29, 1792 (ADf, Thomas Jefferson Papers, Library of Congress).
16. The provisional peace treaty, which was signed on November 30, 1782, was ratified by the United States on April 15, 1783, and by Great Britain on August 6, 1783. The definitive treaty of peace was signed at Paris on September 3, 1783. It was ratified by the United States on January 14, 1784, and by Great Britain on April 9, 1784. On May 12, 1784, ratifications were exchanged (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 96, 151).
17. The fifth article of the definitive treaty of peace provided that Congress should recommend to the legislatures of the states that they provide for the restitution of the property of British subjects (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 154).
18. This is a reference to action taken by the Continental Congress on January 14 (not January 15), 1784. On that date, Congress ratified the definitive treaty of peace with Great Britain and issued a proclamation “notifying the said definitive treaty and ratification to the several states of the union, and requiring their observance thereof …” (JCC description begins Journals of the Continental Congress 1774–1789 (Washington, 1904–1937). description ends , XXVI, 29).
19. See note 3.