No Jacobin No. I1
[Philadelphia, July 31, 1793]2
It is publicly rumoured in this City that the Minister of the French Republic has threatened to appeal from The President of The United States to the People.3
Various publications which have recently appeared in the papers particularly that under the signature of Juba in the National Gazette of the 10th instant—and that under the signature of A Jacobin in the General Advertiser of friday last seem to have begun the appeal.
Several traits in the latter carry conjectures of the Writer to the source of the threatened appeal. The idiom of it is evidently foreign and it abounds in terms and phrazes, which are said by those who have access to him to be frequently in the mouth of the supposed author.4 That the idiom is foreign will appear to a competent judge of the English language from the structure of every sentence; but there are particular expressions which will prove it even to those who have no very accurate knowlege of it. Witness these extracts—“I cannot be convinced that a plan of this kind should be approved by Congress or the People of the UStates”—“through a desire of giving a proof of the loyalty and confidence which ought to exist between the Agents of free Nations.” The word loyalty in the English language is only used to denote fidelity to a Prince to a lover or to a mistress. In the French it is a familiar expression of good faith candor sincere dealings &c.
That it probably proceeds from the source of the threatened appeal is to be inferred from the positive assertion of things, which if true can only be known to the5 principal officers of the General Government & to the public Agents of France. It is said that orders were given to the Military to take possession of a French vessel without previous complaint explanation or communication with the Agents of the French Republic. Again it is said that the Minister of France caused to be returned the Grange upon a simple request from the American Government.6 Declarations like these could only with propriety be made with so much peremptoriness by parties to the transactions. Indeed they seem intended to dismiss even the appearance of concealment.7
Let us now see in what manner the heavy charges of breach of Treaty which are brought against the Executive of the General Government are supported.
The first is the Detention of French vessels armed in the Ports of the UStates; which is said to be contrary to the XXII article of the Treaty of Commerce between the UStates & France.8
The words of the French original upon which this construction is put are as follows “Il ne sera permis à aucun corsaire étranger non apartenant a quelque sujet de sa Majesté tres chretienne ou à un citoïen des dits Etats Unis, lequel aura un commission de la part d’un prince ou d’une puissance en guerre avec l’une des deux nations d’armer leurs vaisseaux dans les ports de l’une des deux parties ni d’y vendre les prizes qu’il aura faites &c.”
The true translation of these words is “It shall not be permitted to any foreign privateers not belonging to subjects of His Most Christian Majesty nor to citizens of the UStates, which shall have commissions from a Prince or Power at War with one of the two Nations to arm their vessels in the ports of the one or the other of the two parties nor there to sell the prizes which they shall have made &c.”
The plain and evident meaning of this stipulation is, that neither of the contracting parties shall be at liberty to permit the privateers of a Power at War with the other to fit or arm in its ports, to sell their prizes there &c. But this stipulation not to permit the privateers of Powers at war with either of the parties to fit or arm in the ports of the other can by no rule of construction be turned into an agreement to permit the privateers of one party, when engaged in war with a third power with whom the other party is at peace, to fit or arm in the ports of the party at peace. This would be to convert a prohibition against doing one thing into a contract to do another.
Nor is there a syllable in the whole sentence that even implies such a contract. The attempt seems to be to deduce it from the words “not belonging to subjects of his Most Christian Majesty nor citizens of the UStates” as if these were introduced by way of exception to the generality of the terms “foreign privateers” to imply that the privateers of the subjects or citizens of the parties might be permitted to fit or arm in the ports of each other.
But these words “not belonging &c” must be taken merely as words of additional description more clearly to express what is intended by the words “foreign privateers.” Nor are they useless to this end. The sense of the term “foreign privateers” is not sufficiently precise or clear without them: For the Privateers of either party would be foreign with respect to the other; but the intention being to designate privateers foreign to both parties; to render this intention unequivocal the words “not belonging to the subjects of his Most C Majesty nor to the Citizens of the US” are added; which fixes the true meaning. It is equivalent to havg said “It shall not be permitted to foreign privateers, that is to say, privateers “not belonging &c.” Unless too these words are understood in this manner, they make nonsense of the whole clause. To perceive this it is only necessary to remark, that the foreign privateers intended to be prohibitted from the privilege of arming &c are expressly those which have commissions from a Power at war with one of the parties.
Then, if the words “not belonging &c” are to be understood as words of exception, the natural reading of the clause would be as follows—“It shall not be permitted to foreign privateers, which have commissions from a Prince or state at war with one of the two Nations to fit or arm in the ports of the other, unless those Privateers so commissioned belong to the subjects or citizens of the one or the other of the contracting parties.” This exception would then operate to produce one of these two effects both equally absurd—either to authorize one of [the] contracting parties to permit privateers belonging to its own citizens under commission from a Power at war with the other, to fit or arm in its ports—thus allowing its subjects or Citizens, with impunity and even countenance, to partake in the war against the other of the contracting parties; or to authorise one of the parties to permit privateers belonging to the subjects or citizens of the other under commission from a power at War with such other party, to fit or arm in the ports of the first mentioned party; thus enabling one party to give aid and countenance to the subjects of the other when carrying on war against their own nation or sovereign and consequently in the situation of rebels or pirates.
No sense more rational can be given to the words in question when understood as words of exception—having regard to the due and natural connection and import of the terms which immediately precede and succeed. It follows, that they cannot be understood as words of exception but merely as words of description, and that the inference attempted to be drawn from them is forced and unwarrantable. Indeed neither as words of exception nor as words of description do they give the least colour to that inference.
If the printed copies of the Treaty are accurate the punctuation is a further illustration that the words “not belonging &c” are merely words of additional description. In the French original, they are not divided even by a comma from the words “corsaire etranger” which they immediately follow, forming with them the first member of the sentence, and connected with the next member of it by the pronoun “lequel” or which. “Il ne sera permis a aucun corsaire etranger non apartenant a quelque sujet de sa Majeste tres chretienne ou a un citizen des dits Etats unis, lequel, &c.9
The words in question cannot, without making the clause nonsense be understood as words of exception in another view. The words foreign privateers are naturally to be understood of as privateers foreign to both parties. If the words “not belonging &c” are not taken as words of additional description but of exception, that is to say if they are to be understood as equivalent to saying, “except privateers belonging to the subject⟨s⟩10 of and commiss⟨ioned⟩ by one of the parti⟨es,”⟩ it leads to a contradiction of terms. It would be equivalent to saying—“It shall not be permitted to foreign privateers, not foreign &c” for privateers belonging to the subjects of and commissioned ⟨b⟩y one of the parties would not be foreign to both the parties.
But if it were possible consistently with the context to give the words “non apartenant” or “not belonging” the effect of an exception favouring the construction which is contended for, it could not at any rate go further than to authorise vessels previously fitted out and commissioned in the Ports of France, and coming into our ports in the capacity of Privateers, there to fit or arm: It could not possibly extend to the original fitting out arming and commissioning of privateers by one party in the Ports of the other. The expressions of every part of the clause presuppose that the vessels intended are already privateers having commissions &c. when they come into the ports of the respective parties.
And it is well known that the Detention complained of applies entirely to vessels which have been made privateers in our Ports.
If any confirmation was requisite, in so plain a case, of the construction, which appears to have been adopted by the Executive of the General Government; it might be found in the regulations of France herself at the time our treaty with her was made. Those regulations shew that it was the policy of France to restrict to her own Ports the fitting out of privateers with a variety of precautions to secure their good behaviour; their accountability, and the rights and interests of all concerned;11 from which it is to be inferred that the clause in question was not intended to establish a right on either side to fit out Privateers in the Ports of the other: such a right being incompatible with the then existing policy of France.
Indeed such a right would be incompatible with the preservation of peace by either party, when the other was engaged in war; for as it would make one auxiliary to the other in this vexatious and irritating mode of hostility to an indefinite extent, it would be stronger than the case of a definite succour stipulated in a defensive alliance; and could not fail to involve the party permitting it in the war.
It is not presumeable, that a mere incidental regulation in a Treaty of Commerce could have been intended to include a consequence so important; and it could only be admitted upon the strength of terms explicit and unequivocal.
All advantages relating to war which are stipulated in favour of one Nation so as to be incommunicable to another include more or less of hazard. They are apt to produce irritations which produce war. In every case of doubt therefore upon the construction of treaties the rule is against the concession of such advantages. The principles of interpretation favour nothing that tends to put the peace of a Nation in jeopardy. It is incumbent upon a Power at War claiming of a neutral nation on the ground of Treaty particular privileges of a military nature to rest his pretension upon clear and definite, not upon doubtful or obscure expressions. When founded upon expressions of the latter kind his claim is always to be rejected.
Hence consequently, the pretension even to fit or arm in our ports privateers antecedently commissioned in the Ports of France, beyond the mere point of reparation, is inadmissible. It is not necessary to admit it for the sake of finding a useful object of the clause in question. That clause will have a very natural & a very useful application when it is understood as merely a prohibition to each party to permit a power at war with the other to fit or arm its privateers in the ports of the party at peace. For without it each party would have been at liberty to grant by Treaty such a right to other powers, which is now prevented.
An argument against every construction of this kind may be drawn from the 17th Article of the Treaty of Commerce.12 That article grants affirmatively to the armed vessels of each party certain privileges in the Ports of the other. Tis there we should naturally look for a privilege so important as the one claimed, not in an article the general object of which plainly is to exclude other powers from privileges in the ports of the contracting parties. The omission of the privilege claimed in the clause where it would naturally be included is a reason against admitting it upon a forced construction of a clause where it would not naturally be expected.
Upon the whole there is evidently no plausible ground for the pretension set up. The natural construction of the clause of the treaty which has been quoted obviously excludes it. And the UStates cannot ex gratia accede to it without departing from neutrality and encountering the mischiefs of a War with which they have nothing to do.
The result is that a pretension to fit out privateers in our ports against our will is an insult to our understandings and a glaring infraction of our rights.
The residue of the Jacobins charges will be hereafter examined.
ADf, Hamilton Papers, Library of Congress; Dunlap’s [Philadelphia] American Daily Advertiser, July 31, 1793.
2. This essay has been given the date on which it was published in Dunlap’s American Daily Advertiser. The draft was apparently written between July 13 and July 18 since it refers to the publication “A Jacobin” as having appeared in the [Philadelphia] General Advertiser on “friday last.” “A Jacobin” appeared in the General Advertiser on Friday, July 13, 1793.
In JCHW description begins John C. Hamilton, ed., The Works of Alexander Hamilton (New York, 1851–1856). description ends , VII, 117–24, and in HCLW description begins Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York, 1904). description ends , V, 17–26, this essay is dated “August, 1793.”
4. Edmond Charles Genet.
5. In MS “be.”
6. For the incident of the Grange, see the introductory note to H to George Washington, May 15, 1793. “A Jacobin” had written: “The seizure of prizes, made known to the agents of the French republic at the moment those prizes were held up for sale, the orders given to the military to take possession of a French vessel without previous complaint, explanation or communication with the agents of the French republic, speak so loud as not to require comment.… The minister of France … has caused to be returned the Grange, an English vessel, upon a simple request from the American government, thro’ a desire of giving a proof of the loyalty and confidence which ought to exist between the agents of free nations; this was done at a time when upwards of 20 American vessels, loaded with French property, and having on board French citizens, were stopt, the passengers insulted, the goods stolen; and yet the Federal government, on other occasions so vigilant, does not appear to think it incumbent on them to take any steps in order that the French property be returned, and that similar hardships be not in future imposed.”
7. At this point in the draft H wrote and crossed out the following sentence: “It may be added that the proposed form of a decree is in the language and spirit of a real Jacobin.”
8. For the French and English versions of the 1778 Treaty of Amity and Commerce with France, see Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 3–29. For Article 22, see H to John Jay, first letter of April 9, 1793, note 2.
9. In “A Jacobin” Article 12 is stated as follows: “It shall not be lawful for any foreign privateer, not belonging to French citizens or citizens of the United States to arm their vessels in the ports of either nation.”
At this point in the draft H wrote and crossed out the following marginal insertion: “Suppose even the clause had stood in the following form (one much more favourable to the sense contended for than the existing form) viz ‘It shall not be permitted to privateers, which do not belong to either of the parties, and which have commissions from a prince or Power at war with one of them &c.’ Still the inference would not be that either of the parties had the right contended for; for the implication of such a right would be to a remote not a necessary one. And a privilege of that kind, so dangerous to the peace of a party in permitting it, can only with propriety be deduced from a direct affirmative stipulation—or an implication so necessary and irresistible as not to admit of any other meaning.”
10. The material within broken brackets has been taken from the newspaper version.
11. For French regulations concerning privateers in 1778, see Recueil Général des Anciennes Lois Françaises, Dupuis L’An 420 Jusqu’à La Révolution de 1789, par MM. Jourdan, Docteur en droit, Avocat à la Cour royale de Paris; Isambert, Avocat aux Conseils du Roi et à la Cour de Cassation; Decrusy, ancien Avocat à la Cour royale de Paris (Paris, May, 1826), XXV, 248–55, 314–28, 430–33.
12. For Article 17 of the 1778 Franco-American Treaty of Amity and Commerce, see H to John Jay, first letter of April 9, 1793, note 2.