The Defence No. XVI1
[New York, September 18, 1795]
The second object of the seventh article,2 as stated in my last number, is “compensation to British Citizens, for captures of their property within the limits and jurisdiction of the U States, or elsewhere by vessels originally armed in our ports, in the cases in which the captured property having come within our power, there was a neglect to make restitution.”
This precise view of the thing stipulated is calculated to place the whole subject at once before the mind in its true shape—to evince the reasonableness of it—and to dismiss the objections which have been made, as being foreign to the real state of the fact. These objections are in substance, that the compensation promised is of great and indefinite extent and amount—that an enormous expence is likely to be incurred,3 and that it is difficult to prove that a neutral Nation is under an obligation to go the lengths of this stipulation.4
These remarks obviously turn upon the supposition—erroneously entertained or disingenuously affected—that compensation is to be made for all captures within our limits or jurisdiction, or elsewhere by vessels originally armed in our ports, where restitution has not in fact been made. Did the stipulation stand on this broad basis it would be justly liable to the criticism which has been applied to it. But the truth is that its basis is far more narrow, that instead of extending to all those captures, it is confined to the particular cases of them only in which the captured property came or was after the capture within our power so as to have admitted of restitution by us, but restitution was not made through the omission or neglect of our government. It does not extend to a single case where the property if taken within our jurisdiction was immediately carried out of our reach—or where if taken without our jurisdiction it was never brought within our reach—or where if at any time within our reach due means were employed without success to effect restitution.
It will follow from this that the cases within the purview of the article must be very few—for except with regard to three prizes made in the first instance,5 where special considerations restrained the government from interposing, there has been a regular and constant effort of the Executive, in which our courts have efficaciously cooperated, to restore prizes made within our jurisdiction or by vessels armed in our ports. The extent or amount therefore of the compensation to be made can by no possible means be considerable.
Let us however examine if the construction I give to the clause be the true one.
It is in these words—“It is agreed that in all such cases where restitution shall not have been made agreeably to the tenor of the letter from Mr. Jefferson to Mr. Hammond dated September 5th 1793,6 a copy of which is annexed to this Treaty, the complaints of the parties shall be and hereby are referred to the Commissioners to be appointed by virtue of this article, who are hereby authorised and required to proceed in the like manner relative to these as to the other cases committed to them: and the United States undertake to pay to the complainants in specie without deduction the amount of such sums as shall be awarded to them respectively &c.”
The letter of Mr. Jefferson by this reference to it and its annexation to the Treaty is made virtually a part of the Treaty. The cases in which compensation is promised are expressly those in which restitution has not been made agreeably to the tenor of that letter.
An analisis of the letter will of course unfold the cases intended.
I It recapitulates an assu[r]ance before given by a letter of the 7 of August to the British Minister7 that measures were taken for8 excluding from further asylum in our ports vessels armed in them to cruise on nations with which we were at peace, and for the restoration of the prizes the Lovely Lass, Prince William Henry, and the Jane of Dublin, and that should the measures of restitution fail in their effect, The President considered it as incumbent on the U States to make compensation for the Vessels.9 These Vessels had been captured by French Privateers originally armed in our ports and had been afterwards brought within our ports.
II It states that we are bound by our treaties with three of the belligerent nations * by all the means in our power to protect and defend their vessels and effects in our ports or waters or on the seas near our shores, and to recover and restore the same to the right owners when taken from them—adding that if all the means in our power are used and fail in their effect we are not bound by our treaties to make compensation.
It further states that though we have no similar Treaty with Great Britain, it was the opinion of the President that we should use towards that Nation the same rule which was to govern us with those other nations, and even to extend it to captures made on the high seas and brought into our ports if done by vessels which had been armed within them.11
III It then draws this conclusion—that having for particular reasons forebore to use all the means in our power for the restitution of the three vessels mentioned in the letter of the 7th of August, The President thought it incumbent upon the U States to make compensation for them: And though nothing was said in that letter of other vessels taken under like circumstances and brought in after the 5th of June and before the date of that letter, yet when the same forbearance had taken place it was his opinion that compensation would be equally due. The cases then here described are those in which illegal prizes had been made & brought into our ports prior to the 7 of August 1793 and in which we had foreborne to use all the means in our power for restitution. Two characters are made essential to the cases in which the compensation is to be made, one that the prizes were brought within our ports the other that we forebore to use all the means in our power to restore them.
IV The letter proceeds to observe that, as to prizes made under the same circumstance and brought in after the date of that letter, The President had determined that all the means in our power should be used for their restitution—that if these failed, as we should not be bound to make compensation to the other powers in the analogous case, he did not mean to give an opinion that it ought to be done to Great Britain. But still if any cases shall arise subsequent to that date, the circumstances of which shall place them on a similar ground with those before it, The President would think compensation equally incumbent on the U States. The addition of cases of which an expectation of compensation is given in this part of the letter must stand on similar ground with those before described—that is they must be characterised by the two circumstances of a bringing within our ports and a neglect to use all the means in our power for their restitution. Every where the idea of compensation is negatived where the prizes have not come within our power or where we have not foreborne to use the proper means to restore them.
The residue of the letter merely contains suggestions for giving effect to the foregoing assurances.
The analysis leaves no doubt that the true construction is such as I have stated. Can there be any greater doubt that the expectations given by the President in the first instance and which have been only ratified by the Treaty were in themselves proper and have been properly ratified?
The laws of nations as dictated by reason as received and practiced upon among nations, as recognised by writers establish these principles for regulating the conduct of neutral powers.
A neutral nation (except as to points to which it is clearly obliged by antecedent treaties) whatever may be its opinion of the justice or injustice of the war on either side cannot without departing from its neutrality, favour one of two belligerent parties more than the other—benefit one to the prejudice of the other—furnish or permit the furnishing to either the instruments of acts of hostility or any warlike succour or aid whatever, especially without extending the same advantage to the other—cannot suffer any force to be exerted or warlike enterprise to be carried on from its territory by one party against the other or the preparation or organisation there, of the means of annoyance—has a right and is bound to prevent acts of hostility within its jurisdiction—and if they happen against its will to restore any property which may have been taken in exercising them. These positions will all be found supported by the letter or spirit of the following Authorities—Barbeyrac’s note on Puffendorf B VIII C VI § 712 Grotius B III C: XVII § III13 Bynkershoek B I C VIII Page 61. 65 C: IX Page 69.70.14 Vatel B III C VII15—Bynkershoeck cites examples of restitution in the case mentioned.
Every Treaty we have made with foreign powers promises protection within our jurisdiction and the restoration of property taken there. A similar stipulation is indeed a general formula in Treaties giving an express sanction to the rule of the laws of Nations in this particular.
An Act of Congress of the 5 of June 179416 which is expressly a declaratory act recognizes at large the foregoing principles of the laws of Nations—providing among other things for the punishment of any person who within the UStates fits out & arms or attempts to fit out and arm or procures to be fitted out and armed or is knowingly concerning in furnishing fitting out or arming of any ship or vessel with intent to be employed in the service of a foreign State to cruise or commit hostilities upon the subjects or citizens of another foreign State with which the U States are at peace or issues or delivers a commission for any such Ship or Vessel or increases or augments or procures to be increased or augmented or is knowingly concerned in increasing or augmenting the force of any ship of War cruiser or other armed vessel in the service of a foreign state at war with another foreign state with which the U States are at peace or within the territory of the U States begins or sets on foot or provides or prepares the means of any military expedition or enterprise to be carried on from thence against the dominions of any foreign State with which the U States are at peace.
Our Courts have also adopted in its fullest latitude as conformable in their opinion with those laws the principle of restitution of property when either captured within our jurisdiction or elsewhere by vessels armed in our ports. The Supreme Court of the U States has given to this doctrine by solemn decisions the most complete and comprehensive sanction.17
It is therefore undoubtedly the law of the land, determined by the proper constitutional Tribunal in the last resort, that restitution is due in the abovementioned cases.
And It is a direct & necessary consequence from this that where it is not made by reason of the neglect of the Government to use the means in its power for the purpose—there results an obligation to make reparation. For between Nations as between Individuals, wherever there exists a perfect obligation to do a thing, there is a concomitant obligation to make reparation for omissions and neglects.
The President was therefore most strictly justifiable upon principle in the opinion which he communicated, that in the cases of such omissions or neglects compensation ought to be made. And in point of policy nothing could be wiser, for had he not done it there is the highest probability that war would have ensued.
Our Treaty with France forbids us expressly to permit the privateers of her enemy to arm in our ports or to bring or sell there the prizes which they have made upon her.18 We could not for that reason have made the privilege of arming in our ports, if it had been allowed to France, reciprocal. The allowance of it to her would consequently have been a clear violation of neutrality, in the double sense of permitting a military aid, and of permitting it to one and refusing it to the other. Had we suffered France to equip privateers in our ports to cruise thence upon her enemies and to bring19 back and vend there the spoils or prizes taken, we should have become by this the most mischievous foe they could have. For While all our naval resources might have augmented the force of France our neutrality if tolerated would in a great degree have sheltered and protected her cruisers. Such a state of things no nation at war could have acquiesced in. And as well to the efficacy of our endeavours to prevent equippments in our ports, as to the proof of the sincerity of those endeavours, it was essential that we should restore the prizes which came within our reach made by vessels armed in our ports. It is known that notwithstanding the utmost efforts of the government to prevent it French privateers have been clandestinely equipped in some of our ports subsequent to the assurances which were given that the practice would be discountenanced.20 If prizes made by such vessels were suffered to be brought into our ports and sold there, this would be not only a very great encouragement to the practice, but it would be impossible that it should be regarded in any other light than as a connivance.
In such a circumstance can we blame our Chief Magistrate—can we even deny him praise for having diverted an imminent danger to our peace, by incurring the responsibility of giving an expectation of compensation? The conjuncture we may remember was critical and urgent. Congress were at the time in recess. A due notice to convene them in so extensive a country can hardly be rated at less than three months.
In this situation our envoy found the business. It is not true in the sense in which it has been advanced that he was to be governed by the fitness of the thing unmindful of the opinion of the President. An opinion of the Chief Magistrate of the Union was to a diplomatic Agent an authority and a guide which he could not justifiably have disregarded. The claim of compensation on the other side was greatly fortified by that opinion. Nor was it a matter of indifference to our national delicacy and respectability21 that the expectation given by it should be fulfilled. It would have been indecent in our envoy to have resisted it. It was proper in him by acceding to it to refer the matter to the ultimate decision of that authority which by our constitution is charged with the power of making Treaties. It was the more proper because the thing was intrinsically right. Every candid man, every good citizen will rejoice that the President acted as he did in the first instance, that our Envoy acted as he did in the second, and that the conduct of both has received the final constitutional Sanction.22
The opinions of Mr. Jefferson when they can be turned to the discredit of the Treaty are with its adversaries oracular truths. When they are to support it they lose all their weight. The presumption that the letter referred to had the concurrence of the judgment of that officer results from a fact generally understood and believed namely that the proceedings of the President at the period when it was written in relation to the War were conformable with the unanimous advice of the heads of the Executive Departments.
This case of British property captured by Privateers originally armed in our ports falsifies the assertion of the adversaries of the Treaty that all the pretensions of Great Britain have been fully provided for.23 She had a colorable ground to claim compensation for all captures made by vessels armed in our ports whithersoever carried or howsoever disposed of—especially where the equipment had been tolerated by our Government. This toleration was to be inferred as well from a forbearance to suppress those vessels when they came within our power as from an original permission. Had compensation been stipulated on this scale it is not certain that it would not have amounted to as much more than that which has been promised—as would counterballance our claims for negroes carried away and for the detention of the posts. But instead of this, it is narrowed down by the Treaty to such prizes of those vessels as were brought within our ports and in respect to which we forbore to use all the means in our power for restitution. Here then is a sett off against doubtful and questionable claims relinquished on our side. Here also is another proof how much the antagonists of the Treaty are in the habit of making random assertions. But can we wonder at it when we reflect that they have undertaken to become the instructors of their fellow citizens on a subject, on the examination of which they unite a very superficial knowlege with the most perverse dispositions?
ADf, Hamilton Papers, Library of Congress; The [New York] Argus, or Greenleaf’s New Daily Advertiser, September 18, 1795.
1. For background to this document, see the introductory note to “The Defence No. I,” July 22, 1795.
2. For the text of Article 7 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 39.
3. At this point in the draft H wrote and crossed out: “(Mr Hammond the British Minister having estimated the captures described at 1800000 £ Sterling).”
4. These objections to Article 7 of the Jay Treaty were made by “Decius” (Brockholst Livingston), who wrote: “… If … [the United States] are to be charged with all the prizes therein referred to, no one can foresee what will be the amount. It is said, that, long since, Mr. Hammond stated the demand at eighteen hundred thousand pounds sterling. It is no excuse in those who defend the treaty, to say, that the president had already pledged the government to this measure; he had no right to do so; and we are now enquiring, not what the president has done, but what is proper and incumbent on the United States. It will be difficult to show that a neutral nation is obliged to go to the lengths which the present treaty imposes upon us” (The [New York] Argus, or Greenleaf’s New Daily Advertiser, July 11, 1795). For the authorship of the “Decius” essays, see the introductory note to “The Defence No. I,” July 22, 1795.
5. On August 7, 1793, Thomas Jefferson wrote to George Hammond: “A constant expectation of carrying into full effect the declaration of the President, against permitting the armament of vessels within the ports of the United States, to cruize on nations with which they are at Peace, has hitherto prevented my giving you a final answer on the subject of such vessels and their prizes. Measures to this effect are still taking, and particularly for excluding from all further asylum in our ports, the vessels so armed, and for the restoration of the Prizes, the Lovely Lass, the Prince William Henry and the Jane of Dublin, taken by them: and I am authorized, in the mean time to assure you, that should the measures for restoration fail in their effect, the President considers it incumbent on the United States to make compensation for the Vessels” (ALS, letterpress copy, Thomas Jefferson Papers, Library of Congress; Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 270).
For information concerning the Lovely Lass, Prince William Henry, and Jane of Dublin, see “Cabinet Meeting. Opinion Respecting Certain French Vessels and Their Prizes,” August 5, 1793; “Cabinet Meeting. Opinions Concerning the Relations of the United States with Certain European Countries,” November 1–22, 1793; H to Jefferson, December 18, 1793; “Treasury Department Circular to the Collectors of the Customs,” December 19, 1793.
6. ADf, Thomas Jefferson Papers, Library of Congress; Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 265–66. This letter is also 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, 174–75.
7. See note 5.
8. In MS, “from.”
9. At this point in the MS H wrote and crossed out the following sentences: “These vessels captured by the privateers fitted out of Charleston & brought into our ports. This is one of the cases of restitution contemplated compensation intended by the article applys specifically to these vessels.”
10. Treaty of Amity and Commerce with France, February 6, 1778 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 3–34); Treaty of Amity and Commerce with the Netherlands, October 8, 1782 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 59–90); Treaty of Amity and Commerce with Prussia, September 10, 1785 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 162–84); Treaty of Amity and Commerce with Sweden, April 3, 1783 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 123–50). See also “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 75.
11. In MS, H mistakenly numbered this paragraph “III.” In the newspaper it appears correctly as part of “II.”
12. Pufendorf, Of the Law of Nature and Nations description begins Of the Law of Nature and Nations. Eight Books. Written in Latin by the Baron Pufendorf, Counsellor of State to his late Swedish Majesty, and to the late King of Prussia. Done into English by Basil Kennett, D.D. late President of Corpus Christi College in Oxford. To which are added All the large Notes of Mr. Barbeyrac, Translated from the best Edition; Together with Large Tables to the Whole. The Fourth Edition, carefully Corrected (London: Printed for J. Walthoe, R. Wilkin, J. and J. Bonwicke, S. Birt, T. Ward, and T. Osborne, 1729). description ends .
13. Grotius, On the Law of War and Peace description begins Hugo Grotius, De Jure Belli Ac Pacis Libri Tres. The Translation, Book I, by Francis W. Kelsey (Oxford and London, 1925). description ends .
15. Vattel, Law of Nations description begins Emeric de Vattel, Law of Nations; or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns (London, 1759–1760). description ends .
16. “An Act in addition to the act for the punishment of certain crimes against the United States” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 381–84).
17. This is a reference to the decision in the case of Talbot v Jansen, which was heard on August 22, 1795 (3 Dallas, U.S. Reports description begins A. J. Dallas, Reports of Cases Ruled and Adjudged in the Several Courts of the United States and of Pennsylvania, Held at the Seat of the Federal Government. Vol. III, Second Edition. Edited, With Notes and References to Later Decisions, by Frederick C. Brightly (New York and Albany, 1882). description ends , 131–69).
18. This is a reference to Article 22 (originally 24) of the Treaty of Amity and Commerce between the United States and France, February 6, 1778 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 19–20).
19. In MS, “brink.”
21. In the newspaper this word is “dignity.”
22. In the margin opposite this paragraph H wrote and crossed out: “This is an instance that all that G Britain might have ever claimed was not provided for.”
23. At this point in the draft H wrote and crossed out: “It has been represented on the other side that Mr Hammond the British Minister had estimated the loss by such captures at one Million Eight hundred thousand pounds Sterling.”