The Defence No. IX1
[New York, August 21, 1795]
It was my intention to have comprised in two numbers the examination of the second article;2 but on experiment it was found expedient to add a third. I resume for a moment the subject of indemnification for the detention of the Posts.
As an inducement to persist in this claim, we are assured that the magnimity of France would have procured for us its establishment. In the first place this supposes that we were to have become a party in the war for otherwise it would be silly to imagine that France would on our account embarrass herself with a difficulty of this sort. In this case, and supposing the object accomplished, still the injuries losses and expences of war would have greatly overballanced the advantage gained. But what certainty have we that France will be able to dictate terms even for herself? Could we expect or rely, after the terrible and wasting war, in which she has been engaged, that she would be willing to encumber the making of peace with additional obstacles to secure so trifling a point for us? Would it be even humane or friendly in us to ask her to risk the prolonging of her calamities for so trivial an object?3
A conduct like this with reference either to France or to ourselves would resemble that of the Gamester who should play millions against farthings. It is so preposterous in every sense that the recommendation of it, if sincere, admits of but one construction, namely, that those who recommend it wish our envoy to have acted not as if he had been sent to make peace but as if he had been sent to make war, to blow and spread the desolating flames of discord and contention.4
There is a marked disingenuousness running through the observations which are made to the prejudice of the Treaty—they endeavour constantly to have it understood that our envoy abandonned without effort the claims which have not been established? Whence is this inferred? Is it from the silence of the Treaty? Surely we can only expect to find there what was agreed upon, not what was discussed and rejected. The truth is, that as well on this point of indemnification for the detention of the posts; as on that of compensation for the negroes our envoy urged our pretensions as far and as long as he could do it without making them final obstacles to the progress of the Negotiation.
I shall now enumerate and answer the remaining objections which have appeared against this article. They are these 1 That the posts to be surrendered instead of being described in general terms should for greater certainty have been specifically enumerated—that now the uncertainty of a part of the boundary line may furnish a pretext for detaining some of them.5 2 that the expressions “precints and jurisdictions” which are excepted from our right of settlement previous to the surrender are so vague and indeterminate as to be capable of being made to countenance encroachments. 3 that it was improper to have stipulated for the inhabitants the option of residing & continuing British subjects, or of becoming American Citizens; that the first was to establish by Treaty a British colony within our limits, the last to admit, without the power of exception, bitter enemies of the Country to the privileges of citizens.6 4 that the securing to those inhabitants the enjoyment of their property is exceptionable, as being a “cession without equivalent of an indefinite extent of territory.” This is the character given to it by the Meeting at Philadelphia.7
The answer to the first objection is that the enumeration proposed might have included the very danger which is objected to the provision as it stands and which is completely avoided by it. The principal posts occupied by the British are known and might easily have been enumerated—but there is a possibility of there being others not known which might have escaped. Last year there started up a post which had not been before heard of,8 on the pretence of an old trading establishment. Who knows with absolute certainty how many similar cases may exist in the vast extent of wilderness as far as the Lake of the Woods which for several years past have been inaccessible to us? If our Envoys information could have been perfect at the time of his last advices from America, between that period and the signing of the Treaty changes might have taken place that is trading houses might have grown into military posts as they did in the case referred to, a case which in fact happened after the departure of our envoy from the U States. Was it not far better than to hazard an imperfect specification to use terms so general and comprehensive as could not fail in any circumstances, to embrace every case? Certainly it was—and the terms “all posts and places” which are those used in the article are thus comprehensive. Nothing can escape them.
Neither is there the least danger that the uncertainty9 of a part of the boundary line can be made a pretext for detaining any post which it was possible to enumerate. This will appear from an inspection of the Map. The only uncertain part of the boundary line (except that depending on the River St Croix which is on a side unconnected with the position of the posts) is that which is to run from the Lake of the Woods to the Mississippi. The most Western of our known Posts is at Misshilimacnac10 at or near the junction of the Lakes Huron and Michigan, Eastward, near eleven degrees of longitude of the Lake of the Woods, and about ten degrees of longitude of that point on the Mississippi below the falls of St. Anthony11 where a survey in order to a settlement of the line is to begin. Moreoever Our line by the Treaty of peace is to pass through the middle of Lake Huron and the water communicated between that lake and lake Superior and through the Middle of Lake Superior and thence Westward through other Waters to the Lake of the woods—that is about half a degree of latitude more Northward and about Eight degrees of longitude more Westward than any part of Lake Michigan. Whence it is manifest that any closing line to be drawn from the Lake of the Woods to the Mississippi must pass at a distance of several hundred Miles from Misshilimacnac. If the British therefore should be disposed to evade the surrender, they will seek for it some pretext more plausible than one which involves a palpable Geographical absurdity. Nor can we desire a better proof of the ignorance or disingenuousness of the objectors to the Treaty than their having contrived one of this nature.
The general terms were to be preferred for the very reason that there was a doubt about the course of a part of the boundary line; for if there should chance to exist any post now unknown so near that line as to render it questionable in the first instance on which side it may fall, the moment the line is settled the obligation to surrender will be settled with it.
The second objection loses all force when it is considered that the exception can only operate till the first of June next, the period for the surrender of the posts; and that in the mean time, there is ample space for settlement without coming near them.12 There was besides real difficulty in an accurate definition. What the precints and jurisdiction of the posts are is a question of fact. In some instances, where from there being no settlement over which an actual jurisdiction had been exercised, a good rule might have been the distance of gun shot from the fortifications which might have been settled at a certain extent in miles, say three or four. But in some cases, an actual jurisdiction had been exercised under circumstances which created obstacles to a precise definition. The case of Caldwell’s Manor, in the vicinity of Dutchman’s point is an example.13 There a mixed jurisdiction has been exercised by the British for military purposes, by the state of Vermont for some civil purposes. It was not easy to fix any convenient rule in this case.14 Detroit and its vicinity would also have occasionned embarrassment. From the situation of the settlements and of a number of dispersed trading establishments, a latitude was likely to have been required, to which it might have been inexpedient to give a sanction. In such situations, where a thing is to last but a short time, it is commonly the most eligible course to avoid definitions. It is obvious that no ill can result from the want of a definition if the posts are surrendered at the time agreed; if not, it is equally plain that it can be of no consequence, because the whole article will be void.
The third objection becomes insignificant the moment the real state of things is adverted to. This has been described in a former number for another purpose,15 but will now be recapitulated with one or two additional facts. The first posts beginning Eastward are Point au fer and Dutchmans point on Lake Champlain.16 The whole number of persons in their vicinity, over whom jurisdiction has been claimed by the British, may amount to a hundred families. But the claim of jurisdiction here has been only occasionally and feebly urged; and it is asserted in addition by well informed persons that the abovementioned families have been for some time regularly represented in the legislature of Vermont the ordinary civil jurisdiction of which state has with little interruption extended over them. At neither of the other posts (to wit) Oswego, Niagara, The Miami, Detroit, Michillimacnac, is there any settlement, except at Detroit where and in the vicinity of which there may be between two and three thousand persons chiefly French canadians and their descendants. It will be understood that I do not consider as a settlement two or three log houses for Traders.
It follows, that the number of persons who can be embraced by the privileges stipulated is too inconsiderable to admit of attaching any political consequence whatever to the stipulation. Of what importance can it possibly be to the U States, whether two or three thousand persons, men women and Children, are permitted to reside within their limits either as British or American subjects at their option? If the thing was an object of desire to Great Britain for the accommodation of the Individuals concerned, could it have merited a moment’s hesitation on our part? As to residence, it is of the ordinary curtesy of nations at peace to permit the mutual residence of the citizens of each other within their respective territories. British subjects are now free by our laws to reside in all parts of the U States.
As to the permission to become Citizens, it has been the general policy & practice of our Country to facilitate the naturalization of foreigners. And we may safely count on the interest of the Individuals & on that desire to enjoy equal rights which is so deeply planted in the human breast, that all who resolve to make their permanent residence with us will become Citizens.
It is true that there may be a few obnoxious characters (though I do not recollect to have heared of more than two or three) among the number of those who have acquired by the stipulation a right to become citizens of the U States—but would it ever have been worthy of the dignity of the national wrath to have launched its thunders against the heads of two or three or half a dozen despicable individuals? Can we suppose that without a stipulation it would have been thought worth the while to make a special exception of their cases out of the operation of our general laws of naturalization? and if this had not been done would they not have found means, if they desired it, after the lapse of a short period to acquire the rights of citizens? It is to be observed that citizens of our own, who may have committed crimes against our laws, not remitted by the Treaty of Peace, would find no protection under this article.
Suppose the stipulation had not been made what would have been the probable policy of the U States? Would it not have been to leave the handful of settlers undisturbed in quiet enjoyment of their property, and at liberty if British subjects to continue such or to become American Citizens on the usual conditions? A system of depopulation or of coertion to one allegiance or another would have been little congenial with our modes of thinking and would not, I am persuaded, have been attempted.
If then the Treaty only stipulates in this respect what would have been the course of things without it what cause for serious objection can there be on this account?
The matter of the fourth objection can only derive a moment’s importance from misapprehension. It seems to have been imagined that there are large tracts of land held under British grants made since the peace, which are confirmed by the part of the article that gives the Inhabitants the right of removing with, selling, or retaining their property.
In the first place, it is to be observed that if such grants had been made the stipulation could not be deemed to confirm them; because our laws must determine the question what is the property of the Inhabitants, and they would rightfully decide that the British Government since the treaty of peace could make no valid grants of lands within our limits. Upon the ground even of its own pretensions, it could not have made such grants. Nothing more was claimed than a right to detain the posts as a hostage. The right to grant lands presupposes much more, a full right of sovereignty and territory.
But in the second place it has always been understood and upon recent and careful inquiry is confirmed—That the British Government has never since the peace made a grant of lands within our limits. It appears indeed to have been its policy to prevent settlements in the vicinity of the posts.
Hence the stipulation as it affects lands does nothing more than confirm the property of those which were holden at the Treaty of peace.17 Neither is the quantity considerable; and it chiefly if not altogether depends on titles acquired under the French Government while Canada was a province of France.
In giving this confirmation it only pursues what is a constant rule among civilized nations. When territory is ceded or yielded up by one Nation to another it is a common practice, if not a special condition, to leave the inhabitants in the enjoyment of their property. A contrary conduct would be disgraceful to a nation; nor is it very reputable to the objectors to the Treaty, that they have levelled their battery against this part of it. It is a reflection upon them too, that they employ for the purpose terms which import more than is true even on their own supposition, and are therefore calculated to deceive; for the confirmation of property to Individuals could be at most a cession only of the right of soil, & not of territory, which term has a technical sense & includes jurisdiction.
Let it be added that the Treaty of Peace in the article which provides “that there should be no future confiscations nor prosecutions against any person or persons by reason of the part which he or they might have taken in the war and that no person should on that account suffer any future loss or damage either in his person liberty or property”18 did substantially what is made an objection to the Treaty under consideration.19 It will not I believe be disputed that it gave protection to all property antecedently enjoyed and not confiscated. Indeed it is a question whether the stipulations cited would not have effected with regard to other rights than those of property a great part of what is regulated by the last Treaty. Its provisions were perhaps in the main unnecessary, further than to obviate a doubt which might have arisen from the suspension of the Treaty by the witholding of the Posts.20
Thus have I gone through every objection to the second article which is in any degree colorable and I flatter myself have shewn not only that the acquisition made by it is of great and real value but that it stands as well as circumstances permitted, and is defensible in its details. I have been the more particular in the examination, because the assailants of the Treaty have exerted all their ingenuity to discredit this article from a consciousness no doubt that it is a very valuable item of the Treaty—and that it was important to their cause to envelope it in as thick a cloud of objections as they were able to contrive. As an expedient of party, there is merit in the artifice. Tis a false calculation that the people of this country can ever be ultimately deceived.
ADf, Hamilton Papers, Library of Congress; The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 21, 1795.
2. See “The Defence No. VII,” August 12, 1795, and “The Defence No. VIII,” August 15, 1795. For the text of Article 2 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 3.
3. At this point in the draft H wrote and crossed out the following sentence: “And have we so entirely reconciled our minds to becoming a dependency of France as to be ready to augment her pretensions upon us, by multiplying our obligations to her, even when no essential interest impels us.”
4. At this point in the draft H wrote and crossed out: “Alas poor suffering humanity! hast thou not already bled at every pore? hast thou not already agonised in every limb and feeble joint? Art thou to have no peaceable asylum no consecrated spot where thou might safely repose? What is it that thy persecutors would have? Will nothing satisfy their fanatical rage for slaughter and devastation? Will they not be content ‘till the world has become a desert inhabitated only by beasts of prey and erratic hordes of savage men?”
5. For this “objection” to the Jay Treaty, see the first essay by “Decius” (Brockholst Livingston), which appeared in The [New York] Argus, or Greenleaf’s New Daily Advertiser, July 10, 1795. The relevant section of this essay is quoted below in “Notes of Objections to the British Treaty,” August, 1795, note 3. For the authorship of the “Decius” essays, see the introductory note to “The Defence No. I,” July 22, 1795.
6. For this “objection” to the Jay Treaty, see Report of the Select Committee, Chosen By Ballot of the Citizens of the United States, in Charleston, South-Carolina, in pursuance of a Resolution of a general Meeting of the Citizens, in St. Michael’s Church, on Thursday, the sixteenth of July, 1795 (Charleston: Printed by W. P. Young, Broad-Street, n.d. [George Washington Papers, Library of Congress]). It is quoted below in “Notes of Objections to the British Treaty,” August, 1795, note 9.
7. This “objection” is taken from “The Memorial of the Citizens of Philadelphia, the Northern Liberties and District of Southwark, in the State of Pennsylvania,” July 25, 1795 (DS, George Washington Papers, Library of Congress). The first clause reads: “Because it [the Jay Treaty] does not provide for a fair and effectual settlement of the differences, that previously subsisted, between the United States and Great Britain, inasmuch as it postpones the surrender, and affords no compensation for the detention, of the Western Posts; inasmuch as it cedes, without affording any equivalent, an indefinite extent of territory to the settlers under British titles, within the precincts, and jurisdiction of those Posts; inasmuch as it waves a just claim for the value of the Negroes, who were carried off at the close of the war, in violation of positive compact; and inasmuch as it refers all the hopes of indemnity, for the recent spoliations, committed on the commerce of the United States, to an equivocal, expensive, tedious, and uncertain process.”
8. On February 17, 1794, Guy Carleton, Lord Dorchester, Governor in Chief and Captain General of the British Provinces in North America, ordered John Graves Simcoe, Lieutenant Governor of Upper Canada, to build Fort Miami on the Maumee River to protect Detroit from a possible attack by Major General Anthony Wayne (E. A. Cruikshank, ed., The Correspondence of Lieut. Governor John Graves Simcoe, with Allied Documents Relating to His Administration of the Government of Upper Canada [Toronto, 1923–31], II, 154).
9. At this point in the newspaper is the following note: “This uncertainty, it is to be observed, results not from the late treaty, but from the treaty of peace. It is occasioned by its being unknown, whether any part of the Mississippi extends far enough north to be intersected by a due west line from the lake of the Woods.”
10. H is referring to a post held by the British on Michilimackinac (Mackinac) Island.
11. The Falls of St. Anthony, the upper limit of the navigable Mississippi, are now within the city of Minneapolis.
12. In the newspaper the concluding part of this sentence reads: “without coming to disputable ground.”
14. In the newspaper these two sentences have been changed to read: “There a mixed jurisdiction has been sometimes exercised by the British, and by the state of Vermont, connected with a disputed title to that manor; one party claiming under an ancient French grant, the other under the state of Vermont.” H is referring to the appointment by the United States of a collector of customs at Alburg, Vermont. See “Conversation with George Beckwith,” June 15, 1791, notes 9 and 11.
17. At this point in the draft H wrote and crossed out: “as to this it may be affirmed that not to have protected it would have been to violate a rule which is common among civilized nations.”
18. H’s quotation differs slightly from the actual wording of Article 6 of the definitive treaty of peace (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 155).
19. At this point in the draft H wrote and crossed out the following sentence and footnote: “For the boundary line was assigned* on the principle of ancient limits not on that cession, whence it follows that no inhabitant who fell within our limits could be divested of what was before his property without a violation of the abovementioned stipulation.
“* This expression ‘assigned’ has been matter of Cavil though it is merely equivalent to ‘settled fixed or delineated.’”
20. At this point in the draft H wrote and then crossed out: “Moreover it may be observed, in the last place, that similar provisions frequently accompany settlements of boundaries and cessions on relinquishments of territory between Nations. A recent example may be cited from the Treaty of Peace and friendship between France & England dated the 3 of September 1783. The VII article of that Treaty which restores St Lucie & cedes Tobago to the French stipulates that the British inhabitants shall retain their possessions upon the same titles and conditions upon which they acquired them; and that for the better securing them the French King should issue letters Patent containing an abolition of the ‘droit d’aubaine’ in other words removing the disability of alienage. The 8th article contains a correspondent stipulation by G Britain with regard to their Islands.”
For the text of the definitive Treaty of Peace and Friendship between Great Britain and France, September 3, 1783, see Chalmers, Collection of Treaties description begins George Chalmers, A Collection of Treaties Between Great Britain and Other Powers (London: Printed for John Stockdale, Piccadilly, 1790). description ends , I, 495–517. The seventh article of this treaty stipulated that the king of France should abolish the droit d’aubain in Tobago. By the eighth article, France restored to Great Britain the islands of Grenada and the Grenadines, St. Vincent, Dominica, St. Christopher, Nevis, and Montserrat.