The analogy of the stipulation in the 10th article with stipulations in our other treaties and in the treaties between other Nations is the remaining topic of discussion.2 After this, attention will be paid to such observations by way of objection to the article as may not have been before expressly or virtually answered.

The 20th. article of our treaty of Amity and Commerce with France3 is in these words “For the better promoting of commerce on both sides it is agreed, that if a war shall break out between the said two Nations, six months after the proclamation of War shall be allowed to the Merchants in the cities and towns where they live for selling and transporting their goods and merchandizes, and if any thing be taken from them or any injury be done them within that term by either party or the people or subjects of either full satisfaction shall be made for the same.”

The 18th article of our Treaty of Amity and Commerce with the Netherlands4 is in these words “For the better promoting of Commerce on both sides, it is agreed, that if a war should break out between their High Mightinesses the States General of the United Netherlands and the United States of America, there shall always be granted to the subjects on each side the term of Nine Months after the date of the rupture, or the proclamation of War, to the end that they may retire with their effects and transport them where they please, which it shall be lawful for them to do, as well as to sell or transport their effects and goods, in all freedom and without any hindrance, and without being able to proceed, during the said term of Nine Months to any arrest of their effects much less of their persons; on the contrary there shall be given them for their vessels and their effects which they would carry away passports and safe conducts for the nearest ports of their respective countries and for the time necessary for the voyage.”

The 22d article of our Treaty of Amity and Commerce with Sweden5 is in these words “In order to favour Commerce on both sides as much as possible, it is agreed that in case War should break out between the two nations, the term of nine months after the declaration of War shall be allowed to the Merchants and subjects respectively on one side and the other, in order that they may withdraw with their effects and moveables, which they shall be at liberty to carry off or to sell where they please without the least obstacle; nor shall any seize their effects and much less their persons during the said nine months; but on the contrary passports which shall be valid for a time necessary for their return shall be given them for their vessels and the effects which they shall be willing to carry with them. And if any thing is taken from them or any injury is done to them by one of the parties their people & subjects, during the term above prescribed, full and entire satisfaction shall be made to them on that account.”

The 23 article of our Treaty of Amity and Commerce with Prussia6 contains this provision “If war should arise between the two contracting parties, the merchants of either country then residing in the other shall be allowed to remain nine months to collect their Debts and settle their affairs, and may depart freely carrying off all their effects without molestation or hindrance.”

These articles of four and the only commercial Treaties we had with foreign powers, prior to the pending Treaty with Great Britain, though differing in terms agree in substance; except as to time which varies from six to nine months. And they clearly amount to this, that upon the breaking out of a War between the contracting parties in each case, there shall be for a term of six or nine months full protection and security to the persons and property of the subjects of one which are then in the territories of the other; with liberty to collect their debts* to sell their goods and merchandizes and to remove with their effects to their own country.7 For this term of six or nine months, there is a complete suspension of the pretended right to confiscate or sequester, giving and being designed to give an opportunity to withdraw the whole property which the subjects or citizens of the one party have in the country of the other.

The differences between these stipulations and that in the article under examination are chiefly these. The latter is confined to debts property in the public funds, and in public & private banks, without any limitation of the duration of the protection. The former comprehend, besides, goods and merchandizes, with a limitation of the protection to a term of six or nine months, but with the intent and supposition that the term allowed may and will be adequate to intire security. The principle therefore of all the stipulations is the same. Each aims at putting the persons and property of the subjects of one enemy, especially Merchants, being within the country of the other enemy at the commencement of a war, out of the reach of confiscation or sequestration.8

The persons, whose names are to our other treaties, on the part of the UStates, are Benjamin Franklin, Silas Deane, Arthur Lee, John Adams and Thomas Jefferson. The three first are to the Treaty with France. Mr. Adams is singly to that with the United Netherlands, Doctor Franklin singly to that with Sweden, and these two with Mr. Jefferson are jointly to that with Prussia. The treaty with Sweden was concluded in April 1783 that with Prussia in August 1785. These dates repel the idea that considerations of policy relative to the war might have operated in the case.

We have consequently the sanction of all these characters to the principle, which governed the stipulation entered into by Mr. Jay, and not only from the ratification of the former treaties at different periods distant from each other by different descriptions of men in our public councils, but also from there never having been heard in the community, a lisp of murmurs against the stipulations, through a period of seventeen years counting from the date of the Treaty with France there is just ground to infer a coincidence of the public opinion of the Country.

I verily believe that if in the year 1783 a Treaty had been made with England containing an article similar to the 10th in the present Treaty, it would have met with general acquiescence. The spirit of party had not then predisposed mens minds to estimate the propriety of a measure, according to the agent, rather than according to its real fitness and quality. What would then have been applauded as wise liberal equitable and expedient is now in more instances than one, under the pestilential9 influence of that baleful spirit condemned as improvident impolitic and dangerous.

Our Treaty with Prussia, the 23 article of which has been cited, is indeed a model of liberality, which for the principles it contains does honor to the parties, and has been in this country a subject of deserved and unqualified admiration. It contradicts, as if studiously, those principles of restriction and exclusion, which are the foundations of the mercantile and navigating system of Europe. It grants perfect freedom of conscience and worship to the respective subjects and citizens, with no other restraint than that they shall not insult the religion of others. Adopting the rule that free ships shall make free goods, it extends the protection to the persons as well as the goods of enemies. Enumerating as contraband only “arms amunition and military stores” it even provides that contraband articles shall not be confiscated but may be taken on the condition of paying for them. It provides against embargoes of vessels and effects. It expressly exempts women children scholars of every faculty, cultivators of the earth, artizans manufacture[r]s and fishermen unarmed and inhabiting unfortified towns villages and places, and in general all others whose occupations are for the common subsistence and benefit of mankind—their houses fields and goods, from molestation in their persons and employments and from burning wasting and destruction, in time of war; and stipulates payment at a reasonable price for what may be necessarily taken from them for military use. It likewise protects from seizure and confiscation in time of war vessels employed in trade, and inhibits the granting commissions to private armed vessels empowering them to take or destroy such trading vessels or to interrupt their commerce. And it makes a variety of excellent provisions to secure to prisoners of War a humane treatment.

These particulars are stated as evidence of the temper of the day, and of a policy which then prevailed to bottom our system with regard to foreign nations upon those grounds of moderation and equity, by which reason religion and philosophy had tempered the harsh maxims of more early times. It is painful to observe an effort to make the public opinion in the respect retrograde, and to infect our Councils with a spirit contrary to these salutary advances towards improvement in true civilization and humanity.

If we pass from our own Treaties to those between other Nations, we find that the provisions which have been extracted from ours have very nearly become formulas in the Conventions of Europe. As samples of this may be consulted the following articles of Treaties between Great Britain & other powers (to wit) the XVIII article of a Treaty of Peace & Commerce with Portugal in 164210 the XXXVI article of a Treaty of Peace Commerce and Alliance with Spain in 166711 the XIX article of a Treaty of Peace and the II of a Treaty of Commerce with France both in 171312 and the XII article of a Treaty of Commerce and Navigation with Russia in 1766.13

The article with Portugal provides that if difficulties and doubts shall arise between the two Nations, which give reason to apprehend the interruption of Commerce public notice shall be given of it to the subjects of both sides, and after that notice, two years shall be allowed to carry away their merchandizes and goods, and in the mean time there shall be no injury or prejudice done to any persons or goods on either side.

The articles with France, in addition to the provisions common in other cases, particularly stipulate that during the term of the protection (six months) “the subjects on each side shall enjoy good and speedy justice, so that during the said space of six months, they may be able to recover their goods and effects, entrusted as well to the public as to private persons.”

The article with Russia, besides stipulating an exemption from confiscation for one year with the privilege to remove and carry away in safety, provides additionally that the subjects of each party “shall be further permitted either at or before their departure to consign the effects, which they shall not as yet have disposed of, as well as the debts that shall be due to them to such persons as they shall think proper, in order to dispose of them according to their desire & for their benefit—which debts, the Debtors shall be obliged to pay in the same manner as if no such rupture had happened.”

All these articles are with those in our treaties analogous in principle, as heretofore particularly explained, to the tenth article of the Treaty under discussion. That of the British Treaty with France designates expressly debts due from the Public as well as those due from private persons—that with Russia goes the full length of our tenth article; empowering the creditors on each side to assign the debts which they are not able to collect within the term of their residence to whomsoever they think fit for their own benefit, and declaring that these debts shall be paid to the Assignees in the same manner as if no rupture had happened.

There is a document extant which may fairly be supposed to express the sense of the Government of France at the period to which [it] relates of the foundation of these stipulations. It is a memorial of Mr. Bussy Minister from the Court of France to that of London for negotiating peace dated in the year 176114 and contains these passages “As it is impracticable for two princes who make war with each other to agree between them which is the aggressor in regard to the other,* Equity and Humanity have dictated these precautions, that where an unforeseen rupture happens suddenly and without any previous declaration, foreign vessels, which navigating under the security of peace and of treaties happen, at the time of the rupture, to be in either of the respective ports shall have time and full liberty to withdraw themselves.”

“This wise provision, so agreeable to the rules of good faith, constitutes a part of the law of Nations; and the article of the Treaty which sanctifies these precautions, ought to be faithfully executed notwithstanding the breach of the other articles of the Treaty, which is the natural consequence of the War.”

“The Courts of France & Great Britain used this salutary precaution in the Treaties of Utrecht15 and Aix la Chapelle.”16

These passages place the security stipulated in the Treaties for the persons and property of the subjects of one party found in the Country of another at the beginning of a War upon the footing of its constituting a part of the law of Nations; which may be considered as a formal diplomatic recognition of the principle for which I contend. As this position was not itself in dispute between the two Governments, but merely a collateral inference from it, applicable to vessels taken at sea prior to a declaration of War, it may be regarded as a respectable testimony of the law of Nations on the principal point.

If the law of Nations confers this exemption from seizure upon vessels, which at the time of the rupture happen to be in the respective ports of the belligerent parties, it is evident that it must equally extend its protection to debts contracted in a course of lawful Trade. Vessels are particularly mentioned because the discussion turned upon vessels seized at sea. But the reference to the Treaties of Utrecht and Aix la Chapelle shews that the Minister in his observation had in view the whole subject matter of the articles of those treaties, which provide for the security of Merchants and their effects in the event of War.

This conformity, in principle, of the article, under examination with the provisions in so many Treaties of our own and of other Nations, taken in connection with the comment of Mr. Bussy, brings a very powerful support to the article. It is additional and full evidence that our Envoy in agreeing to it did not go upon new and untrodden ground, that on the contrary he was in a beaten tract, that in pursuing the dictate of reason and the better opinion of Writers as to the rule of the law of Nations respecting the point, he was at the same time pursuing the examples of all the other Treaties we had ourselves made and of many of those of other Countries.

It is now incumbent upon me to perform my promise of replying to such objections to the Article as may remain unanswered by the preceding remarks. It is with pleasure, I note, that the field is very narrow—that indeed there scarcely remains any thing which is not so frivolous and impotent as almost to forbid a serious replication. It will therefore be my aim to be brief.

It is said there is only an apparent reciprocity in the article, millions being due on our side and little or nothing on the other.17

The answer to this is, that no right being relinguished on either side—no privilege granted—the stipulation amounting only to a recognition of a rule of the law of Nations—to a promise to abstain from injustice & breach of faith—there is no room for an argument about reciprocity—further than to require that the promise should be mutual, as is the case. This is the only equivalent which the nature of the subject demands or permits. It would be dishonorable to expect a boon merely for an engagement to fulfil a moral obligation.18

But it has been shewn, that the stipulation will be beneficial to us by the confidence which it will give on the other side;19 obviating and avoiding the obstructions to trade, the injuries to and incumbrances upon Credit naturally incident to the distrust and apprehension, which after the question had been once moved, were to be expected. Here if a compensation were required there is one. Let me add as a truth which perhaps has no exception20 that in the wise order of Providence Nations in a temporal sense may safely trust the maxim that the observance of Justice carries with it its own and a full reward.

It is also said that having bound ourselves by Treaty we shall hereafter lose the credit of moderation which would attend a forbearance to exercise the right. But it having been demonstrated that no such right exists, we only renounce a claim to the negative merit of not committing injustice, and we acquire the positive praise of being willing to renounce explicitly a pretension which might be the instrument of oppression and fraud. It is always honorable to give proof of upright intention.

It is further said, that under the protection of this stipulation, The King of Great Britain, who has already speculated in our funds* may engross the whole Capital of the Bank of the U States and thereby secure the uncontrouled direction of it—that he may hold the Stock in the name of his ambassador or of some citizen of the U States, perhaps a Senator, who if of the virtuous twenty,† might be proud of the honor—that thus our citizens in time of peace might experience the mortification of being beholden to British Directors for the accommodations they might want, that in time of War our operations might be cramped at the pleasure of his Majesty and according as he should see fit or not to accommodate our Government with loans & that both in peace and war we may be reduced to the abject condition of having the whole Capital of our national Bank administered by his Britannick Majesty.21

Shall I treat this Rhapsody with seriousness or ridicule?

The Capital of the Bank of the U States is ten millions of dollars; little short at the present Market Price of [three millions of]22 pounds Sterling; but from the natural operation of such a demand in raising price ’tis not probable that much less than four Millions Stereling would suffice to complete the monopoly. I have never understood that the private purse of his Britannic Majesty, if it be true as asserted that he has already witnessed a disposition to speculate in our funds (a fact however from which it was natural to infer a more pacific disposition towards us) was so very ample as conveniently to spare an item of such size for a speculation across the Atlantic. But perhaps the national purse will be brought to his aid. As this supposes a parliamentary grant, new taxes and new loans it does not seem to be a very manageable thing, without disclosure of the object; and if disclosed so very unexampled an attempt of a foreign Government would present a case completely out of the reach of all ordinary rules, justifying by the manifest danger to us even war and the confiscation of all that had been purchased. For let it be remembered, that the article does not protect the public property of a foreign Government Prince or State; independent of the observation just made that such a case would be out of the reach of all ordinary rules. It may be added that an attempt of this kind from the force of the pecuniary Capital of G Britain would, as a precedent, threaten and alarm all Nations. Would consequences like these be incurred?

But let it be supposed that the inclination shall exist and that all difficulties about funds have been surmounted, still to effect the plan there must be in all the stockholders a willingness to sell to the British King or his Agents as well as the will and means on his part to purchase. Here too some impediment might be experienced. There are persons who might choose to keep their property in the shape of Bank Stock, and live upon the income of it, whom price would not readily tempt to part with it. Besides there is an additional obstacle to complete success. The U States are themselves the proprietors of two Millions of the Bank Stock.23

Of two things one—Either the monopoly by his Britannic Majesty would be known (and it would be a pretty arduous task to keep it a secret especially if the Stock was to stand as suggested in the name of his ambassador) or it would be unknown and concealed under unsuspected names. In the former supposition, the observations already made recur—there would be no protection to it from the article—and the extraordinary nature of the case would warrant any thing. Would his Majesty or the Parliament choose to trust so large a property in so perilous a situation?

If to avoid this the plan should be to keep the operation unknown the most effectual method would be to place the Stock in the names of our own citizens. This it seems would be attended with no difficulty; since even our senators would be ambitious of the honor; and if they should have qualms or fears, others could no doubt be found amongst the numerous sec [re]taries or adherents of Great Britain in our Country—probably some of the patriots would not be inexorable if properly solicited, or in the last resort persons might be sent from Great Britain to acquire naturalization for the express purpose.

In this supposition too the article would be at least innocent. For its provisions are intirely foreign to the case of stock standing in the names of our own citizens. It neither enlarges nor abriges the power of the Government in this respect.

Further. How will the article, work the miracle of placing the Bank under the management of British directors? It gives no new rights, no new qualifications.

The constitution of the Bank (Sections the 5th. and 7th of the Act of Incorporation)24 has provided with solicitude these important guards against foreign or other sinister influence. I  That none but a citizen of the U States shall be eligible as a Director. II  That none but a stockholder actually resident within the U States shall vote in elections by proxy. III  That one fourth of the Directors, who are to be elected annually, must every year go out of the direction. IV That a Director may at any time be removed & replaced by the Stockholders at a general Meeting. V  That a single share shall give one vote for directors, while any number of shares, in the same person copartnership or body politic, will not give more than thirty votes.

Hence it is impossible that the Bank can be in the management of British Directors. A British subject is incapable of being a director. It is also next to impossible that an undue British Influence could operate in the choice of Directors out of the number of our own Citizens. The British King, or British subjects out of the U States, could not even have a vote by Attorney in the choice. Schemes of secret monopoly could not be executed because they would be betrayed unless the secret was confined to a small number. A small number, no one of whom could have more than thirty votes, would be easily overruled by the more numerous proprietors of single or small number of shares with the addition of the votes of the U States.

But here again it is to be remembered that as to combinations with our own citizens, in which they were to be ostensible for any pernicious foreign project, the article under consideration is perfectly nugatory. It can do neither good nor harm, since it merely relates, as to the exemption from confiscation and seizure on our part to the known property of British subjects.

It follows therefore that the dangers pourtrayed to us from the speculating enterprizes of His Britannic Majesty are the vagaries of an overheated imagination or the contrivances of a spirit of Deception, and that so far as they could be supposed to have the least colour, it turns on circumstances upon which the Treaty can have no influence whatever. In taking pains to expose their futility I have been led principally by the desire of making my fellow Citizens sensible in this instance, as in others, of the extravagances of the opposers of the Treaty.

One artifice to render the article unacceptable has been to put cases of extreme misconduct on the other side, of flagrant violations of the laws of nations of war of justice and of humanity and to ask whether under such circumstances the confiscation or sequestration of debts would not be justifiable. To this the answer is, that if circumstances so extraordinary should arise as without the Treaty would warrant so extraordinary an act, they will equally warrant it under the Treaty. For cases of this kind are exceptions to all general rules. They would excuse the violation of an express or positive as well as of a tacit or virtual pledge of the public faith which describes the whole difference between the existence & non existence of the Article in question. They resemble those cases of extreme necessity (through excessive hunger for instance) which in the eye of the law of nature will excuse the taking of the property of another, or those cases of extreme abuse of authority in rulers, which amounting unequivocally to tyranny, are admitted to justify forcible resistance to the established authorities. Constitutions of Government laws, Treaties, all give way to extremities of such a description. The point of obligation is to distinguish them with sincerity and not to indulge our passions and our interests in substituting pretended for real cases.

A writer who disgraces by adopting the name of Cicero makes a curious remark by way of objection.25 He affirms that the article is nugatory because a Treaty is dissolved by the state of War, in which the provision is designed to operate.26 If this be true, the article is at least harmless, and the trouble of painting it in such terrific colours might have been spared. But it is not true. Reason, writers, the practice of nations all accord in this position that those stipulations which contemplate the state of War—in other words which are designed to operate in case of War preserve their force and obligation when war takes place.27 To what end else all the stipulations which have been cited from so many Treaties?A

Previous to a conclusion, I shall observe barely with a view to accuracy, that the article leaves unprotected all Vessels goods and merchandize, every species of property indeed, except debts between individuals and the property of individuals in the public funds and in public and private banks. With this exception whatever may have been before liable to confiscation or sequestration, still remains so, notwithstanding anything contained in this article.

To overrate the value or force of our own arguments is a natural foible of self love—to be convinced without convincing others is no uncommon fate of a writer or speaker but I am more than ordinarily mistaken if every mind open to Conviction will not have been satisfied by what has been offered that the tenth article of the Treaty lately negotiated with Great Britain does nothing but confirm by a positive agreement a rule of the law of Nations indicated by reason supported by the better opinion of Writers ratified by modern usage—dictated by justice and good faith recognised by formal acts and declarations of different nations—witnessed by diplomatic testimony—sanctioned by our treaties with other countries and by treaties between other countries—and conformable with sound policy and the true interest of the U States.

The discussion has been drawn out to so great length, because the objections to this article are among those which have been urged with most warmth and emphasis against the Treaty, and its vindication from them if satisfactory must go far towards securing to it the public suffrage. Citizens of America! tis for you to perform your part of the task; tis for you to weigh with candor the arguments which have been submitted to your judgments; to consult without byass the integrity of your hearts; to exile prejudice, and to immolate on the altar of Truth the artifices of Cabal and Falshood.B There can then be no danger that Patriotism will have to lament, or National Honor to blush at the sentence you shall pronounce.

The articles, which adjust the matters of controversy between the two Countries, all those which are permanent, have now been reviewed. Let me appeal to the consciences of those who have accompanied me in the Review. If these articles were all that composed the Treaty, would it be better that they should exist, or that all the sources of rupture and War with Great Britain should have survived the negotiation to extinguish them and should still subsist in full vigour? If every enlightened and honest man must prefer the former, then let me make another observation & put another question. The remaining articles of the Treaty which constitute its commercial part expire by their own limitation at the end of twelve years. It is in the power of either party consistently with the instrument to terminate them at the expiration of two years after the present war between France & Great Britain. Is it at all probable that they can contain any thing so injurious, considering the short duration which may be assigned to them, as to counterballance the important consideration of preserving peace to this young Country, as to warrant the excessive clamours which have been raised, as to authorise the horrid calumnies which are vented and to justify the systematic efforts which are in operation to convulse our country and to hazard even civil War.