No Jacobin No. III1
[Philadelphia, August 8, 1793]2
Another accusation against the Executive of the UStates preferred by the Jacobin3 is derived from this circumstance—That while by the Treaty between the UStates & France the goods of her enemies on board our Ships are exempt from capture; the goods of France on board our Ships are subject to the depredations of her enemies; without any “Steps being taken by the Executive to cause French property to be returned and to prevent similar hardships being in future imposed.”
This has, if possible, still less color than either of the others.
By the general law of Nations, as laid down by all writers and practiced upon by all Nations previous to the late War between the UStates & Great Britain, this principle was clearly and fully established—That the goods of an enemy in the Ships of a friend (that is of a neutral power) are lawful prize and that the goods of a friend in the Ships of an enemy (those called contraband excepted) not lawful prize;4 subject only to such exceptions as are introduced by particular treaties.
During the war between the UStates and Great Britain certain Powers who associated under the denomination of the armed neutrality5 set up a6 rule the reverse of that which had before prevailed, and which has been stated. But this association made with a view to the then existing War, terminated with it. The UStates, though they approved the new principle; never acceded to that association.
They contented themselves with introducing it into their Treaties with such Powers, with whom they formed treaties. Accordingly it is to be found in our Treaties with France7 Holland8 Sweden9 & Prussia.10
Great Britain on her part, [it is understood, has not acceded to that principle, which she regarded as originating in hostility to ⟨her⟩ except in the single instance of her late Treaty with France.]11 And there are several other powers of Europe who did not originally unite in the attempt to introduce it and who are not known to have since done any act amounting to an adoption of it.
An established rule of the law of Nations can only be deemed to be altered by agreements between all the civilized powers or a new usage generally adopted and sanctioned by time.
Neither having happened in the present case, the old principle must be considered as still forming the basis of the general Law of Nations; liable only to the exceptions resulting from particular Treaties.
With France Holland & Prussia, three of the belligerent parties, we have treaties containing the new principle, but with Russia Spain Portugal Austria Savoy12 we have no treaties whatever. Against the former powers therefore we have a right to claim the new principle.13 Between us and the latter powers the old rule must govern, unless a departure from it can be regulated by mutual consent.
As we cannot of right assert the new principle against those Powers with whom we have not established it by Treaty so neither can we in prudence or good policy insist upon it under the circumstances of the case.14 There is not a doubt that all the powers who are at liberty to pursue the old rule will do it. In a war of opinion and passion like the present, concessions to ill founded or doubtful pretensions are not to be expected. Nor are the UStates in a condition to attempt to enforce such claims.
But it seems the not having hitherto manifested a disposition towards this species of Knight errantry is an injury and offence to France. The Jacobin deems it a breach of our Treaty with her that we do not quarrel with other nations for an object which we can claim of them neither by the law of Nations nor by Treaty.
It appears that the Jacobin is ready enough to insist upon, and even to enlarge constructively, all the peculiar advantages which our Treaty with France gives to her; but any circumstance of supposed inconvenience to her is in his eyes a sore grievance.15
This very reasonable Gentleman ought to remember that if the property of the enemies of France in our Ships is protected by our Treaty with her, the property of our Citizens in the Ships of those enemies lose by that treaty the munity or security to which they would otherwise be intitled,16 and he ought to remember that the Citizens of France have already enjoyed the sweets of this17 at the expence of our Citizens.* He ought also to remember that it is at best problematical whether the citizens of the UStates have not more property afloat in the bottoms of the Powers at War with France than the Citizens of France have afloat in bottoms of the UStates—and consequently whether the ballance is not in favour of France.
What is there in our history that can authorise our being degraded with the supposition that we are ignorant both of our duties and our rights?20
ADf, Hamilton Papers, Library of Congress; Dunlap’s [Philadelphia] American Daily Advertiser, August 8, 1793.
2. This essay has been assigned the date on which it was published in Dunlap’s American Daily Advertiser. In JCHW description begins John C. Hamilton, ed., The Works of Alexander Hamilton (New York, 1851–1856). description ends , VII, 130–33, and HCLW description begins Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York, 1904). description ends , V, 36–40, it is dated “1793.”
4. At this point in the newspaper version the following material is inserted: “This rule is founded upon the principle, that one enemy may lawfully take the goods of another wheresoever he finds them, except within the jurisdiction or dominion of a neutral state; of course he may take them upon the high seas, where no nation can have jurisdiction or dominion. Vattel, book iii. § 115, 116. Bynkershock Quæs. Jur. Pub. lib. i cap. 13, 14.
“It necessarily follows, that French property taken by the enemies of France in American vessels is, by the law of nations, lawful prize; and that American property (not of the contraband kind) taken by Frenchmen in the ships of their enemies, is not, according to the same law, lawful prize. To the forming a right judgment then, on this part of the Jacobin’s charges, and to determine whether France is not benefitted, rather than injured, by the alterations which have taken place, the following observations may perhaps be useful.”
H is referring to 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 , and Bynkershoek, Quæstionum description begins Cornelis van Bynkershoek, Quœstionum juris publici libri duo, quorum primus est de regus bellicis, secondus de rebus varii argumenti (Leyden, 1752). description ends .
5. A league to protect neutral rights was proposed by Catharine II of Russia as early as 1778, but it was not until 1780 that the League of Armed Neutrality was established. Between 1780 and 1783, Russia, Denmark and Norway, Sweden, Austria, Prussia, the Netherlands, Portugal, and the Two Sicilies became members of the League. Among other principles agreed to by the contracting powers were the stipulations “that neutral vessels may navigate freely from port to port and along the coasts of the nations at war” and “that the effects belonging to subjects of the said Powers at war shall be free on board neutral vessels, with the exception of contraband merchandise” (“Declaration of the Empress of Russia regarding the Principles of Armed Neutrality, addressed to the Courts of London, Versailles and Madrid, February 28, 1780,” printed in James Brown Scott, ed., The Armed Neutralities of 1780 and 1800 [New York, 1918], 274).
6. At this point in the draft H wrote and crossed out the following: “different rule (to wit) that free Ships should make free goods and vice versa.”
7. See Article 12 (originally Article 14) and Article 23 (originally Article 25) of the 1778 Franco-American Treaty of Amity and Commerce (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 12–13, 20–21). For the discrepancy in the numbering of the articles of the treaty, see H to John Jay, first letter of April 9, 1793, note 2.
8. See Article 11 of the 1782 Treaty of Amity and Commerce between the United States and the Netherlands (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 68–70).
9. See Article 7 of the 1783 Treaty of Amity and Commerce between the United States and Sweden (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 128–29).
10. See Article 12 of the 1785 Treaty of Amity and Commerce between the United States and Prussia (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 170–71).
11. The material within brackets was omitted from the newspaper version. This is a reference to Article 20 of the 1786 Franco-British Commercial Treaty, which conceded the principle that free ships make free goods (George Chalmers, A Collection of Treaties Between Great Britain and Other Powers [London, 1790], I, 530–31).
12. In the newspaper version England is also named.
13. At this point in the newspaper version the following words are inserted: “as they would against us, were we in a state of war and they at peace.”
14. In the newspaper version the words “unless we are prepared to support it” are substituted for “under the circumstances of the case.”
15. At this point in the newspaper version the words “while he seems insensible to those which operate against us” are inserted.
16. At this point in the newspaper version the following is inserted: “and that this important sacrifice, on our part, was agreed to, that we might have the advantage of being the carriers during European wars. His silence, on this head, can only be accounted for, on the supposition, that if he really belongs to this country, he is blinded to her interests by foreign influence.”
17. At this point in the newspaper version the words “departure by treaty from the law of nations” are inserted.
18. For the Little Sarah, see “Cabinet Meeting. Opinion on the Case of the Little Sarah,” July 8, 1793, note 2.
19. Part of the cargo on board the Little Sarah when she was captured had belonged to the Philadelphia merchants Benjamin Holland and Peter Mackie. Although the merchants petitioned for restitution, their claim was rejected on the advice of Edmund Randolph, who stated that “the flour and meal were actually shipped after the declaration of war, made by France on the 1st. of february 1793. If the enquiry was to depend on their knowledge of the declaration, their relief would be very doubtful at least. But as two months had passed after the declaration and before the shipment, it is impossible for the government of the United States, to wrest the property from the captain” (Randolph to Thomas Jefferson, May 26, 1793 [ALS, Thomas Jefferson Papers, Library of Congress]). Randolph’s rejection of the firm’s claim was based on Article 14 of the 1778 Franco-American Treaty of Amity and Commerce. For Article 14, see H to George Washington, August 5, 1793, note 3.
20. The newspaper version ends with the following paragraph: “The result of what has been shewn evidently is, that the Jacobin’s charge has no better foundation, than that the executive of the U. States has not quarrelled with the enemies of France for doing what, by the law of nations, they had a right to do.”