The Defence No. XXXII1
[New York, December 16, 1795]
The 18th Article of the Treaty,2 which regulates the subject of contraband, has been grievously misrepresented. The objections urged against it with most acrimony are disingenuous and unfounded; yet while I make this assertion which I flatter myself I shall be able to prove, I shall not pretend to maintain that it is an article completely satisfactory. I even admit that it has one unpleasant ingredient in it. And I am convinced that our envoy must have consented to it with reluctance.
But while Candour demands this concession it equally admonishes us that under the circumstances of the moment the points in this respect to be adjusted were peculiarly unmanageable—that the position of the other party rendered an arrangement intirely agreeable to us impracticable—that without compromise nothing could have been regulated—that the article made no change for the worse in our prior situation but in some particulars made our ground better, and that estimating truly the relative circumstances of the parties there is no probability that any thing more acceptable could have been established.
I will add that the degree of imperfection which may fairly be attributed to this article is far from being of such importance as on solid calculations ought to defeat the Treaty. No clear right is abandonned—no material interest of the nation injured. It is one thing whether every part of a Treaty be satisfactory—another and a very different thing whether in the aggregate it be eligible or not and ought to be accepted or rejected. Nations could never make contract with one another if each were to require that every part of it should be adjusted by its own standard of right and expediency. The true question always is upon the collective merits of the instrument; whether upon the whole it reasonably accommodates the opinions and interests of both parties. Tried by this test, the Treaty negotiated with Great Britain fully justifies the acceptance of it by the constituted authorities of our country, and claims the acquiescence of every good Citizen.
The most laboured and at the same time the most false of the charges against the 18th article is that it allows provisions to be contraband in cases not heretofore warranted by the laws of Nations3 and refers to the discretion of the belligerent party the decision of what those cases are. This is the general form of the charge. The draft of a Petition to the Legislature of Virginia4 reduces it to this shape. The Treaty “expressly admits that provisions are to be held contraband in cases other than when bound to an invested place, and impliedly admits that such cases exist at present.” The first is a palpable untruth which may be detected by a bare perusal of the article. The last is an untrue inference impregnated with the malignant insinuation that there was a design to sanction the unwarrantable pretension of a right to inflect Famine on a whole Nation.
Before we proceed to an analysis of the article let us review the prior situation of the parties.
Great Britain it is known had taken and acted upon the ground that she had a right to stop and detain, on payment for them, provisions belonging to neutrals going to the dominions of France.5 For this violent and impolitic measure, which the final opinion of mankind will certainly condemn, she found colour in the saying, of some Writers of Reputation on public Law. A Passage of this kind from Vatel has been more than once quoted in these terms “Commodities particularly used in war and the importation of which to an enemy is prohibitted are called contraband goods. Such are arms military and naval stores, timber horses, and even provisions in certain junctures when there are hopes of reducing the enemy by famine.”6 [Heineceius* countenances the same opinion and even Groties seems to lean towards it.†
The U States with reason disputed this construction of the law of nations; restraining the general propositions which seemed to favour it to those cases in which the chance of reducing by famine was manifest and palpable, such as the cases of particular places bona fide besieged blockaded or invested. The Government accordingly remonstrated against the proceeding of Great Britain9 and made every effort against it which prudence in the then posture of affairs would permit. The order for seizing provisions was after a time revoked.10
In this state our Envoy found the business. Pending the very war in which Great Britain had exercised the pretension, with the same administration which had done it, was it to have been expected that she would in a Treaty with us even virtually or impliedly have acknowleged the injustice or impropriety of the conduct? Here was no escape as in the instance of the order of [the 6th of Nov. 1793]11 in the misconceptions of her officers—the question was to condemn a deliberate and unambiguous act of the administration itself. The pride the reputation the interest of that administration forbade it.
On our side to admit the pretension of Great Britain was still more impossible. We had every inducement of character right and interest against it.
What was the natural and only issue out of this embarrassment? Plainly to leave the point unsettled—to get rid of it—to let it remain substantially where it was before the Treaty.
This I have good ground to believe was the real understanding of the two negotiators; and the article has fulfilled their view.
After enumerating specifically what articles shall be deemed contraband it proceeds thus—“And whereas the difficulty of agreeing on the precise cases, in which alone provisions and other articles not generally contraband may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise: It is further agreed that whenever any such articles, so becoming contraband according to the existing laws of Nations, shall for that reason be seized, the same shall not be confiscated, but the owners thereof shall be speedily and completely indemnified; and the Captors or in their default the Government under whose authority they act shall pay to the Masters or Owners of such vessels the full value of all articles with a reasonable mercantile profit thereon, together with the freight and also the demurrage incident to such detention.”
The difficulty of agreeing on the precise cases in which articles not generally contraband become so from particular circumstances is expressly assigned as the motive to the Stipulation which follows. This excludes the supposition that any cases whatever were intended to be admitted or agreed. But this difficulty renders it expedient to provide against the inconveniences and misunderstandings which might thence arise. A provision with this view is therefore made, which is that of liberal compensation for the articles taken. The evident intent of this provision is that in doubtful cases the inconvenience to the neutral party being obviated or lessened by compensation, there may be the less cause for or temptation to controversy and rupture—the affair may be the more susceptible of negotiation and accommodation.
More than this cannot be pretended because it is further “agreed that whenever any such articles so becoming contraband according to the existing laws of nations shall for that reason be seized, the same shall not be confiscated but the owners thereof shall be speedily and completely indemnified &c.”
Thus the Criterion of the cases in which articles not generally contraband may from particular circumstances become so is expressly the existing laws of nations, in other words the laws of nations at the time the transaction happens. When these laws pronounce them contraband they may for that reason be seized; when otherwise they may not be seized. Each party is as free as the other to decide whether the laws of nations do in the given case pronounce them contraband or not, and neither is obliged to be governed by the opinion of the other. If one party on a false pretext of being authorised by the laws of nations makes a seizure, the other is at full liberty to contest it—to appeal to those laws and if it thinks fit, to oppose even to reprisals and war. This is the express tenor of the provision—there is nothing to the contrary—nothing that narrows the ground—nothing that warrants either party in making a seizure, which the laws of nations independent of the Treaty do not permit—nothing which obliges either to submit to one, where it is of opinion the law of nations has been violated by it.
But as liberal compensation is to be made in every case of seizure where a difference of opinion happens, it will become a question of prudence and expediency whether to be satisfied with the compensation or to seek further redress. The provision will in doubtful cases render an accommodation of differences of opinion the more easy, and as a circumstance conducing to the preservation of peace is a valuable ingredient in the Treaty.12
A cavil has arisen on the term “existing” as if it had the effect of enabling one of the parties to make a law of nations for the occasion. But this is a mere cavil. No one nation can make a law of nations; no positive regulation of one state or of a partial combination of states can pretend to this character. A law of nations is a law which nature agreement or usage has established between nations. As this may vary from one period to another by agreement or usage the article very properly uses the term “existing” to denote that law which at the time the transaction may happen shall be the then law of Nations. This is a plain and obvious use of the term, when nothing but a spirit of misrepresentation could have perverted to a different meaning.
The argument against the foregoing construction is in substance this (viz) It is now a settled doctrine of the law of nations that provisions and other articles not generally contraband can only become so when going to a place beseiged blockaded or invested—Cases of this kind are fully provided for in a subsequent part of the article. The implication therefore is that something more was intended to be embraced in the antecedent part.
Let us first examine the fact whether all the cases of that kind are comprehended in the subsequent part of the article. I say they are not. The remaining clause of the article divides itself into two parts. The first describes the case of a vessel sailing for a port or place belonging to an enemy without knowing that the same is either besieged, blockaded or invested, and provides that in such case the vessel may be turned away but not detained nor her cargo, if not contraband, confiscated unless after notice she shall again attempt to enter: The second describes the case of a vessel or goods which had entered into such port or place before it was besieged blockaded or invested and declares that the one or the other shall not be liable to confiscation but shall be restored to the Owners thereof. These are the only cases described or provided for. A third which occurs on the sligh [t] est reflection is not mentioned—the case of a vessel going to a port or place which is beseiged blockaded or invested, with notice of its being in that state when she commences her voyage or previous to her receiving notice from the beseiging blockading or investing party. This is left to the operation of the general law of Nations except so far as it may be affected by the antecedent clause. Thus the fact which is the foundation of the argument fails and with it of course the argument itself.13
But had this been otherwise the conclusion would still have been erroneous. The two clauses are intirely independent of each other, and though they might both contemplate the same cases in whole or in part they do it with an eye to very different purposes.
The object of the first is to lessen the danger of misunderstanding, by establishing this general rule that where ever articles not commonly contraband become so from particular circumstances, according to the laws of nations, they shall still not be confiscated but when seized the Owners of them shall be indemnified.
The object of the last is to regulate some special consequences with regard to vessels and goods going to or which had previously gone to places besieged blockaded or invested; and in respect to which the dispositions of the laws of nations may have been deemed doubtful or too rigorous. Thus it is held that the laws of nations permit the confiscation of ships & goods going to places besieged blockaded or invested; but this clause decides that if going without notice, so far from being confiscated, they shall not even be detained but shall be permitted to go whithersoever they please. If they persist after notice then the contumacy shall be punished with confiscation. In both instances the consequence is intirely different from every thing in the antecedent clause. There, there is seizure with compensation. Here in one instance seizure is forbidden and permission to go elsewhere is enjoined—in the other instance the offending things are confiscated which excludes the idea of compensation. Again the last part of the last clause stipulates in the case which it supposes the restoration of the property to its Owners, and so excludes both seizure and compensation. Hence it is apparent the objects of the two clauses are intirely foreign to each other, and that no argument nor inference whatever can be drawn from the one to the other.14
If it be asked what other cases there can be, except those of places besieged blockaded or invested, and if none other what difficulty in defining them—why leave the point so vague and indeterminate? One answer, which indeed has already been given in substance, is that the situation of one of the parties prevented an agreement at the time—that not being able to agree they could not define and that the alternative was to avoid definition. The want of definition only argues want of agreement. It is strange logic to assert that this or that is admitted because nothing is defined.
Another answer is that even if the parties had been agreed that there were no other cases than those of besieged blockaded or invested places—still there would have remained much room for dispute about the precise cases, owing to the impracticability of defining what is a besieged blockaded or invested place. About this, there has been frequent controversy; and the fact is so complicated a one, puts on such a variety of shapes that no definition can well be devised which will suit all. Hence nations in their compacts with each other have not attempted one. At least, I recollect no instance of the attempt.15
Moreover is it impossible to conceive other cases in which provisions and other articles not generally contraband might on rational grounds be deemed so? What if they were going expressly and with notice to a besieging army, whereby it might obtain a supply essential to the success of its operations? Is there no doubt that it would be justifiable in such case to seize them? Can the liberty of trade be said to apply to any instance of direct & immediate aid to a military expedition? It would be at least a singular effect of the rule, if provisions could be carried without interruption for the supply [of] a Spanish Army besieging Gibraltar when, if destined for the supply of the garrison in that place, the[y] might of right be seized by a Spanish fleet?
The Calu[m]niators of the article have not had the candour to notice that it is not confined to provisions but speaks of provisions and other articles. Even this is an ingredient which combats the supposition that countenance was intended to be given to the pretension of Great Britain with regard to provisions, which depending on a reason peculiar to itself cannot be deemed to be supported by a clause including other articles, to which that reason is intirely inapplicable.
There is one more observation against this part of the article which may deserve a moment’s attention. It is this, that though the true meaning of the clause be such as I contend for still the existence of it affords to Great Britain a pretext for abuse which she may improve to our disadvantage. I answer, it is difficult to guard against all the perversions of a contract which ill faith may suggest. But we have the same securities against abuses of this sort which we have against those of other kinds namely the right of judging for ourselves and the power of causing our rights to be respected. We have this plain and decisive reply to make to any uncandid construction which Great Britain may at any Time endeavour to raise. “The article pointedly and explicitly makes the existing law of Nations the standard of the cases in which you may rightfully seize provisions and other articles not generally contraband. This law does not authorise the seizure in the instance in question. You have consequently no warrant under the Treaty for what you do.”
The same disingenuous spirit which tinctures all the conduct of the adversaries of the Treaty has been hardy enough to impute to it the last order of Great Britain to seize provisions going to the dominions of France.16 Strange that an order issued before the Treaty had even been considered in this Country and embracing the other neutral powers besides the UStates should be represented as the fruit of that instrument!17
The appearances are that a motive no less imperious than that of impending scarcity had great share in dictating the measure, and Time, I am persuaded will prove, that it will not even be pretended to justify it by any thing in the Treaty.
ADf, Hamilton Papers, Library of Congress; The [New York] Herald; A Gazette for the Country, December 16, 1795.
1. For background to this document, see the introductory note to “The Defence No. I,” July 22, 1795. The material within brackets in this essay has been taken from the newspaper.
2. For the text of Article 18 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 63.
4. The petition “To the General Assembly of the Commonwealth of Virginia” was presented in a letter addressed “To the Independent Citizens of Virginia,” dated October 11, 1795 (The [Richmond] Virginia Gazette, and General Advertiser, November 11, 1795). The petition was also reprinted in The [New York] Argus, or Greenleaf’s New Daily Advertiser, November 11, 1795, from the Petersburg [Virginia] Intelligencier. The quotation is from Article II of the petition.
5. This is a reference to the British order in council of June 8, 1793. See “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 66.
6. 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 , Book III, Ch. VII, Sec. 112.
7. Johann Gottlieb Heineccius, A Methodical System of Universal Law; or The Laws of Nature and Nations Deduced From Certain Principles, and applied to Proper Cases. Written in Latin … Translated and illustrated with Notes and Supplements, By George Turnbull (London, 1741).
8. Grotius, On the Law of War of 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 . This reference should read: “Book III, Ch. I, Sec. V, Paragraphs 1–5.”
9. See Thomas Pinckney to Lord Grenville, December 2, 1794 (PRO:F.O., 15/3), a copy of which Pinckney sent to Secretary of State Edmund Randolph on January 28, 1794 (ALS, RG 59, Despatches from United States Ministers to Great Britain, 1791–1906, Vol. 3, November 29, 1791–May 4, 1797, National Archives). See also “Conversation with George Hammond,” April 15–16, 1794; H to Randolph, April 27, 1794.
10. This is a reference to the British order in council of August 6, 1794 (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, 482). See also Mayo, Instructions to British Ministers description begins Bernard Mayo, ed., “Instructions to the British Ministers to the United States, 1791–1812,” Annual Report of the American Historical Association for the Year 1936 (Washington, 1941), III. description ends , 66, note 54.
11. Space left blank in MS. The British order in council to which H is referring was addressed “to the commanders of our ships of war and privateers that have, or may have, letters of marque against France” and instructed them as follows: “That they shall stop and detain all ships laden with goods the produce of any colony belonging to France, or carrying provisions or other supplies for the use of any such colony, and shall bring the same, with their cargoes, to legal adjudication in our courts of admiralty” (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, 430). See the introductory note to H to George Washington, March 8, 1794.
12. In the newspaper the following sentences have been added to this paragraph: “A very different phraseology was to have been expected if the intention had been to leave each party at liberty to seize agreeably to its own opinion of the law of nations upon the condition of making compensation. The stipulation would thus have been ‘It is agreed that whenever either of the contracting parties shall seize any such articles as contraband &c.’—and not ‘It is agreed that whenever any such articles to becoming contraband and shall for that reason be seized.’ This makes not the opinion of either party, but the fact of the articles having become contraband by the laws of nations the condition of the seizure.”
13. In the margin opposite this paragraph H wrote: “These provisions do not occur in other Treaties.”
14. In the margin opposite this paragraph H wrote “Qr.”
15. In the newspaper the last two sentences of this paragraph have been changed to read: “Thence nations in their compacts with each other frequently do not attempt one: and where the attempt has been made it has left almost as much room for dispute about the definition as there was about the thing.”
17. In the newspaper there is an asterisk at the end of this sentence indicating a footnote which reads: “As reasonable would it be to place to its account the similar order which was issued before the mission of an envoy was thought of.” This is presumably a reference to the British order in council of November 6, 1793. See note 11.
18. On the cover of this essay H requested “Mr. Moreton to copy this as early as convenient.”