The Defence No. XXV1
[New York, November 18, 1795]
It will be useful, as it will simplify the Examination of the commercial articles of the Treaty, to bear in mind and preserve the Division that we find established by the 12.2 13.3 & the 14.4 & 15.5 articles. Each respects a particular Branch or portion of the trade between the two Countries, the regulations whereof, differ from, and are severally independent of each other. Thus one is relative to the west Indies, another to the east Indies, and the third distinct from both the former respects our Trade with the british Dominions in Europe.
That Great Britain will consent to place our Trade with her west India Colonies, upon an equally advantageous footing with her own, is improbable. This would be doing what none of the great colonizing Nations has done, or is likely to do. It would be to relinquish the principal ends of the Establishment, and Defence, of her Colonies—it would be equivalent to making her Islands in the west Indies, the common Property of Great Britain & america for all commercial, & profitable, purposes; and exclusively her own, in the Burthen of Support & Defence.
The Senate have however, & I think wisely, considered the Terms and Conditions on which it is agreed by the XII article that we should participate in the Trade to the British west Indies as less liberal than we may with reason expect.6 The exclusion of all vessels above the Burthen of Seventy Tons, would diminish the Benifits, and value, of this Trade; and tho we cannot calculate upon obtaining, by future negotiation, a total removal of a Limitation on this Subject, it is altogether improbable that a Tonnage something larger may be procured.
Those who are conversant with our present intercourse with the west Indies can best determine, whether many Vessels under Seventy Tons Burthen are not at this Time profitably employed in that Trade: It is believed to be true, that previous to our Independence, Vessels of this Burthen were much engaged in this Employ, as well in the southern, as in the eastern, States.
This Limitation tho’ disadvantageous, is not the strongest Objection to the XII Article; the Restraining, or regulating of a Portion of our Trade, which does not proceed from, and is independent of the Treaty, forms a more decisive Reason against the article, than any thing else that it contains.
The cause of this Restraint is found in that commercial Jealousy, and Spirit of monopoly, which have so long reigned over the Trade of the Colonies. Under [our Treaty with France &] the french colonial Laws, it has been shewn, that we could not procure from the french Islands, Sugar, Coffee, Cocoa, Cotton, or any of their other Productions, Melasses and Rum excepted7—Great Britain has seen it, to be compatible with her Interests, to admit us to share more extensively in the Productions of her Islands; but she has desired to place limitations on this Intercourse—to have left it entirely open & free, would have been [to have enabled us not only to supply ourselves by means of our own navigation, but to have made it an instrument of the supply of other Nations with her West Indian productions.]
When we reflect upon the established maxims of the colony System, and moreover when we consider that an entire Freedom of Trade with the British west Indies, might at Times materially raise the Price of west India productions on the British consumers, the supply of whom is essentially a monopoly in the Hands of the British Planters; we shall be the less inclined to believe, that Great Britain will yield an unrestrained commerce with her West India possessions to any nation whatever.
But if this was the Object of the Restraint, it may be asked why it was not confined to such enumerated articles as were of the Growth or Production of her own Islands; instead of being so extended, as to comprehend, all molasses, Sugar, Coffee, Cocoa, & Cotton, including even the Cotton of the growth of our own Country. It is very possible that the Circumstance of our native Cotton’s becoming an article of Export to foreign Markets might not have occured to our negotiator. This would be the less extraordinary, as heretofore it has not been cultivated except in a [very] limited degree, and as an article of export rather, in the manner of Experiment than otherwise, and as moreover, from the Expence and Difficulty of separating the Seeds from the Cotton,8 we have been [hardly] able hitherto, to class Cotton among our Exports. It’s cultivation is said latterly to have become an object of attention in Georgia, & South Carolina—still however it cannot yet be considered as a staple commodity. But from the recent Invention of an ingenious, & simple, Machine, for ginning Cotton, It is hoped that the cultivation may be extended, so that not only our own Domestic manufactures may be relieved from a Dependence on foreign Supply, but the catalogue of our valuable Exports inriched by the addition of this inestimable production.
In answer to the Question that has been stated, it may be further observed, that these enumerated articles, though the production of different Territories [being] so much alike, as not easily to be distinguished, It is probable that the Difficulty in discriminating the productions of the British Islands, from those of a different Growth, was supposed to be so great, that an apprehension was entertained that the prohibition to reexport the former would be easily evaded, and illusory, while the latter remained free.
This apprehension however, it is believed, [was carried too far,] as on a minute examination of the subject it will be found, that our Laws relative to Drawbacks [with a few analogous provisions in addition] can be made sufficiently to discriminate, and identify [on reexportation,] all such articles of the Growth of the British Islands as may be within our Country, and that they will afford the same security, for a faithful, and exact, execution of the prohibition to reexport such articles, as that on which our own Government relies against Frauds upon the Revenue. [The application of these laws with the requisite additions and sanctions may be secured by a precise stipulation for that purpose in the Treaty in such manner as would afford an adequate guard against material evasions.]9
But though the conduct of the Senate in with-holding their assent to this article, is conceived to have been upon the whole well judged and wise, yet there were not wanting reasons of real weight to induce our negotiator to agree to it as it stands.
The inviolability of the principles of the navigation act10 had become a kind of axiom incorporated in the habits of thinking of the British government and nation. Precedent, it is known, has great influence as well upon the councils as upon the popular opinions of nations!—and there is perhaps no country in which it has greater force than that of Great Britain. The precedent of a serious and unequivocal innovation upon the system of the navigation act dissolved as it were the spell, by which the Public prejudices had been chained to it. It took away a mighty argument derived from the past inflexibility of the system, and laid the foundation for greater inroads upon opinion for further and greater innovations in practice. It served to strip the question of every thing that was artificial and to bring it to the simple test of real national interest, to be decided by that best of all arbiters, experience.
It may upon this ground be strongly argued that the precedent of the privilege gained was of more importance than its immediate extent—an argument certainly of real weight and which is sufficient to incline candid men to view the motives that governed our negotiator in this particular, with favor, and the opinion to which he yielded with respect. It is perhaps not unimportant, by way of precedent that the article, tho’ not established, is found in the treaty.
Though the XII. article so far as respects the Terms and conditions of the Trade to the British Islands forms no part of the Treaty, having been excepted, and made the Subject of further negotiation, it may nevertheless be useful to take notice of some of the many ill founded Objections that have been made against it. Of this character is that which asserts that the Catalogue of articles permitted to be carried by us to the British Islands, may be abridged, at the pleasure of Great Britain, and so the trade may be annihilated.
The article stipulates that we may carry to any of his majesty’s Islands and Ports in the west Indies from the United States in american vessels not exceeding Seventy Tons, any Goods or merchandizes, “being of the Growth manufacture or Production of the said States, which it is, Or may be, lawful to carry to the said Islands from the said States in british Vessels”—not all such articles as it is, & May be, lawful to carry; but in the disjunctive, all such as it is, or may be lawful to carry; in other words, all such articles as it is now lawful to carry, together with such others, as hereafter it may be lawful to carry: the Catalogue may be enlarged, but cannot be diminished. [It may also be remarked incidentally that this objection sounds ill in the mouths of those who maintain the essentiality of the supplies of this Country under all possible circumstances to the British West Indies; for if this position be true there never can be reasonable ground of apprehension of too little latitude in the exportation in British vessels, which is to be the standard for the exportation in ours.]
The article has been further criticised, on account of the adjustment of the impost and tonnage Duties payable in this Trade, and it has been attempted to be shewn that the Footing, on which we were to share in the same, would on this account be disadvantageous and the competition unequal. What is this adjustment? The Article proposed that British vessels employed in this Trade shall pay on entering our Ports the alien Tonnage Duty payable by all foreign Vessels, which is now Fifty Cents per Ton;11 further, the Cargoes imported in british Bottoms from the british west Indies shall pay in our Ports the same impost, or Duties, that shall be payable on the like articles imported in american Bottoms; and on the other Side, that Cargoes imported into the British Islands in american Bottoms shall pay the same impost or Duties that shall be payable on the like articles imported in British Bottoms—that is to say the Cargoes of Each, shall pay in the Ports of the other, only native Duties, it being understood that those imposed in the british west Indies on our Productions are small and unimportant, while those imposed in our Ports on the productions of the west Indies are high, and important to our Revenue. The vessels of each shall pay in the ports of the other, an equal alien Tonnage Duty and our Standard is adopted as the common Rule.
Is not this equal? Can we expect, or ask, that british vessels should pay an alien Tonnage Duty in our ports, and that american vessels should enter their ports freely, or on payment only of native Tonnage Duties? can we in equity require them to pay on the importation of their Cargoes in British Vessels, an addition of ten per Cent on the Duties payable on the importation of the like articles in american Vessels, and at the same Time, demand to pay no higher or other Duties on the Cargoes carried in our Vessels to the British Islands, than those payable by them on the like articles imported in British Vessels? The very stating of the Question suggests to a candid mind, an answer that demonstrates the injustice of the Objection. [To expect more were to expect that in a Trade in which the opinions and practices of Europe contemplate every privilege granted to a foreign nation as a favour—we were by Treaty to secure a greater advantage to ourselves, than would be enjoyed by the Nation which granted the privilege.] But it is added that our Laws impose a Tonnage Duty of six Cents per Ton on the entry of american vessels engaged in foreign Trade,12 and it is not known that british Vessels pay any Tonnage Duty on their Entry in their Ports in the West-Indies, and so uniting the two entries, that is the entry in the west Indies and the entry on a return to our Ports, an american vessel will pay Fifty Six Cents per Ton, when the British vessel will pay only Fifty Cents per Ton. If the British Government impose no tonnage Duty on their own Vessels, and we do impose a Tonnage Duty on ours, this certainly cannot form an Objection against them. They are as free to abstain from the imposition of a Tonnage Duty on their own Ships, as we are to impose one on ours. If their policy is wiser than ours in this respect, we are at liberty to adopt it by repealing the Tonnage Duty levied on american navigation [which if we please may be confined to the particular case;] the effect of such a measure [as far as it should extend] tho the Duty is small, would be to add a proportional advantage to our Shipping in foreign competition. But the object of the Article in this particular, is to equalize not the Duties that each may choose to impose on their own Vessels, but those that they shall impose on the Vessels of each other; and in this Respect the Article is perfectly equal. [It is perhaps the first time that the question of inequality was founded on a circumstance depending on the laws of the party affected by it and removeable at his own option.]
This view of the Subject authorises a Belief that in the revision of the article, a modification of it may be agreed [to], that will prove satisfactory. Indeed from the short duration of the article taken in connexion with the Expressions made use of towards the close of it, relative to the renewal of the Negotiation for the purpose of such further Arrangements as shall conduce to the mutual advantage, and Extension, of this Branch of commerce, we may infer that Great Britain contemplates a more enlarged, and equal adjustment on this Point.
The Relaxations which now exist in the colonial Systems, in consequence of the necessities of the War, and which will change to our Disadvantage, with the return of Peace, have been considered by some as the permanent State of things. And this Error has had its influence in misleading the public in respect to the Terms & Conditions in which we may reasonably expect to participate in the Trade to the British west Indies. But let it be remembered that the Restoration of Peace will bring with it a Restoration of the Laws of limitation, & Exclusion, which constitute the colonial System. Our Efforts therefore should be directed to such an adjustment with Great Britain on this Point, as will secure to us, a Right, after the return of Peace, to the greatest attainable Portion of the Trade to her Islands in the west Indies.
It has been alledged should the expected modification of this article retain its present stipulation on the subject of Impost & Tonnage Duty, that as France by Treaty may claim to enjoy the Rights & privileges of the most favoured nation, she would demand an exemption from the ten per Cent on the Duties [upon] the productions of the west Indies imported in foreign Bottoms, and would moreover be free to impose an alien Tonnage on our Vessels entering their Ports in the West Indies, equal to that imposed on her Vessels in our Ports. This is true, but in order to make this Demand, France must agree by Treaty to open all her Ports in the west Indies, to give us a Right to import into them Flour, Bread, Tobacco, and such other articles as Great Britain shall permit, and which France prohibits; she must also concede to us a Right to purchase in her Islands, and bring away Sugar, Coffee, & Pimento, which by her permanent System13 she prohibits. [She must do all this because by our Treaty with her she can only intitle herself to a special privilege granted to another Nation by granting on her part to us, the equivalent of what was the consideration of our Grant.]14 Should France be inclined, so to arrange the Trade between us and her Islands, we certainly shall not object; because, [besides the right,] such an arrangement would be more advantageous to us, than that, which now regulates our intercourse with her west Indies.
So much of the twelfth article as respects its duration, and the renewal of the negotiation, previous to the expiration of two years after the conclusion of the war, in order to agree in a new arrangement on the subject of the west Indies Trade, as well as for the Purpose of endeavouring to agree whether in any, and in what Cases, neutral Vessels shall protect Enemy Property, and in what cases Provisions and other articles not generally contraband may become such, form a part of the Treaty as ratified by the President. These Clauses sufficiently explain themselves, and require no comment in this Place. They however prove one point, which is, that after every Effort on the Part of our Negotiator the Parties were not able to agree in the Doctrine that free Bottoms should make free Goods, nor in the Cases in which alone Provisions and other Articles not generally contraband should be deemed such—leaving therefore both these Points, precisely as they found them (except in respect to provisions, the payment for which, when by the law of Nations liable to capture & used as contraband15 is secured) to be regulated by the existing Law of Nations, it is stipulated to renew the Negotiation on these Points, at the Epoch assigned for the future adjustment of the west India Trade, in order then to endeavour to agree in a conventional Rule, which, instead of the Law of Nations, should thereafter regulate the conduct of the Parties in these Respects.
[The 11th Article16 has been passed over in silence as being merely introductory & formal.
Df, Hamilton Papers, Library of Congress; The [New York] Herald; A Gazette for the Country, November 18, 1795.
1. Although most of the draft was written by Rufus King, substantial portions of the MS are in H’s handwriting. The material by H is enclosed in brackets.
For background to this document, see the introductory note to “The Defence No. I,” July 22, 1795.
2. For the text of Article 12 of the Jay Treaty, see H to Rufus King, June 11, 1795, note 2. See also H to William Bradford, June 13, 1795; Bradford to H, July 2, 1795; George Washington to H, July 13, 1795; Thomas FitzSimons to H, July 14, 1795; and “Horatius No. II,” July, 1795. See also “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795.
3. For the text of Article 13 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 54. See also “Horatius No. II,” July, 1795.
4. For the text of Article 14 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 56.
5. For the text of Article 15 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 57.
7. See Article 30 (originally 32) of the Treaty of Amity and Commerce between the United States and France, February 6, 1778, which states that subjects of the United States might use “… the free Ports which have been and are open in the french Islands of America …, agreable to the Regulations which relate to them” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 27). See also the “Arrêt du conseil concernant le commerce étranger dans les îles françaises de l’Amérique,” August 30, 1784, which established seven entrepôt ports for the islands of St. Lucia, Martinique, Guadeloupe, Tobago, and St. Domingo, and declared: “Il sera permis aux navires étrangers qui iront dons les ports d’entrepôt, soit pour y porter les marchandises permises par l’art. 2, soit à vide, d’y charger pour l’étranger, uniquement des sirops et taffias, et des marchandises venues de France” (Isambert, Recueil Général des Anciennes Lois Françaises, XXVII, 460).
8. In the draft at this point an asterisk has been crossed out. At the bottom of the page H wrote and crossed out the following: “Note * Some recent inventions of machinery promise to obviate this disadvantage—but their effects have hitherto been ⟨negligi⟩ble.”
9. At this point in the MS, H wrote: “Take in A seperate.” As the material marked “A” has not been found, the next three paragraphs have been taken from the newspaper.
11. This is a reference to Section 1 of “An Act imposing duties on the tonnage of ships or vessels” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 135 [July 20, 1790]).
12. This is a reference to Section 1 of “An Act imposing duties on the tonnage of ships or vessels” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 135).
13. See note 7.
14. See Article 2 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 , 5).
16. For the text of Article 11 of the Jay Treaty, see July 9–11, 1795, note “Remarks on the Treaty … between the United States and Great Britain,”.