Philo Camillus No. 21
[New York, August 7, 1795]
For the Argus.
A Writer, who signs himself Cinna3 has come forward to refute the argument which has been stated by Camillus, as that of Great Britain, in support of her construction of the article respecting the Negroes.4 If illiberal insinuation is argument, Cinna is an adept. But he mistakes the people to whom he addresses himself, if he hopes to supply the want of good reasons by invectives. If Camillus were known, it would be also known that no citizen of the United States has exceeded him in proofs of determined attachment to his country, and of determined opposition to the injustice of Great Britain; that no man is more incapable than he, of becoming the obsequious apologist of that country; of justifying her acts however wanton; or, of depreciating our own, and placing it improperly in the wrong, as calumniating Cinna has alledged. Camillus has no exotic ingredients in his creed. It is neither Grecian nor Trojan; neither French nor British. It is purely American. It would grieve him in the inmost recesses of his soul to see a country to which he is devoted, and to which he has made great sacrifices, destined to revolve like a satellite round either France or Great Britain. Would to heaven all his opponents could lay their hands upon their hearts and say as much! We should not then have seen the systematic efforts, which have continued from the time of our war with Great Britain to the present moment, to make the interests of our country subservient to those of France: We should not see, at this moment, such violent exertions to keep us, as it were, insulated from all the world but France. There would be no set of men who would not see and acknowledge the wisdom of multiplying and extending pacific and commercial relations with as many other powers as we can; avoiding close alliances, and the making of common cause, with all of them.
But while Camillus prides himself in this truly and only American creed; he distinguishes patriotism from a blind partiality for national errors, and from the art of making these errors the foundation of still greater. In our contests with other nations, he thinks it a duty to examine with candour, how far they, or ourselves may be to blame, as the true guide to a just and reasonable result; and he despises the cowardice of not telling his fellow-citizens what he believes to be true, because it may happen not to accord with their prepossessions.
Having replied this much to the calumny of Cinna, let us proceed to what he may call his argument. I affirm, that it does not meet fairly a single point, nor obviate a single difficulty in the opposite argument.
His first observation is this. “Whenever the meaning of an instrument is doubtful, there cannot be a safer or fairer way to attain its true sense, than by considering the circumstances and views of the parties at the time of making the contract, and that they acted with good faith to each other. To apply this rule: during the late war, many Negroes had been taken by, or had voluntarily joined the armies, or gone into the garrisons of Great Britain. To reclaim them and prevent their being carried away, was an object which our commissioners had much at heart, and it is not easy to conceive how this object could have been expressed in plainer or less ambiguous terms.”
Answer. The general rule here laid down is a good one; but by the very terms of it, “the circumstances and views” not of one party but of “the parties” are to be considered. Now, as on the one hand it was natural for us to wish to get back the Negroes, so on the other it was very unnatural that Great Britain should intend to violate the faith pledged to them, and after having declared them free, to abandon them to slavery. Hence the abandonment cannot be presumed to have accorded with the views of both parties, and therefore does not come within the rule.
But secondly, it is not good reasoning to draw a rule of interpretation of a promise to do several things, from a motive which is applicable to only one of the things to be done, and which is unreasonable as applied to the others. Cinna derives the reason of the stipulations from the single article of the negroes, while the stipulation itself speaks of “negroes and other property.” It is as true that many ships, horses, oxen, and other cattle; much furniture and various other articles of personal property, had been taken by the British forces, as that negroes had been taken by, or joined them. An intention, therefore, must be sought applicable to other property as well as to negroes. Then comes the question—Is it presumable that the United States meant to demand, or Great Britain to promise, an abandonment of all the booty of a seven years war? If the terms are in the least ambiguous, this must be answered in the negative. That they are ambiguous, no man who reads them will doubt, notwithstanding the inference from the alledged accuracy of Franklin, who, by the way, it is known, had less agency in that treaty than any other of the commissioners, and it is probable, did not pen a line of it. But the imperfection of language, and the urgency of conjunctures, frequently occasion the most accurate men to use inaccurate expressions. How much dispute has there been about the meaning of several parts of our treaty with France, in which Franklin had a predominant agency?
Cinna says it is not easy to conceive how the object could have been expressed in plainer or less ambiguous terms. I will convince him that nothing was more easy. These expressions would have been perfectly clear “without carrying away any negroes, which immediately previous to their being captured by, or to their joining the forces of his Britannic majesty, were the property of American inhabitants.” This would have avoided the ambiguity as to time, and as to the effect of capture, and by standing without the words “and other property” would have steered clear of the difficulty incident to the idea of a general and indiscriminate abandonment of booty, which is inseparable from our sense of the stipulation as it is now worded.
The second observation of Cinna is in these words; “It could not be necessary to guard against new depredations—peace being made, all hostilities of every kind ceased. To confine this article, therefore, to an engagement to abstain from further plunder5 is rendering it altogether negative and useless.”
Camillus anticipated this objection to the construction opposite to ours, and has conclusively answered it. But Cinna found it more convenient to pass by his answer, than to attempt a refutation of it. Camillus’s answer is founded upon this clause of the same article, “without causing any destruction,” which immediately precedes the provision respecting the negroes. The cessation of hostilities as much precluded the causing of further destruction, as the taking further plunder, and it was as unnecessary in strictness to provide against further destruction as against further plunder: but it is indisputable, that the first of these two unnecessary things is done by the article, and therefore, it being unnecessary with respect to the other part of the provision is no objection to understanding it in a similar sense. But the truth is, that nothing is more common in treaties than to insert, for greater caution, particular provisions, which are in strictness unnecessary, because they are comprehended in, or result from, other provisions, or from the nature of the thing.
But it may be remarked, that the article might have been intended to prevent the carrying away of negroes not taken in war, but who had joined the British, either previous to the invitations by proclamation, or after the cessation of hostilities.
The next observation of Cinna is, that “the reasoning of Camillus is constrained and contradictory; that in one breath he likens negroes to horses, cattle, and other moveables, and as such, liable to become booty; in the next, considers them as rational beings, and as intitled to liberty under British proclamations.” But what contradiction is there in this? on the contrary, these different aspects of the subject are incident to the nature of it.
The laws of certain states which give an ownership in the service of negroes as personal property, constitute a similitude between them and other articles of personal property, and thereby subject them to the right of capture by war. But being men, by the laws of God and nature, they were capable of acquiring liberty—and when the captor in war, to whom by the capture the ownership was transferred, thought fit to give them liberty, the gift was not only valid, but irrevocable.
Weakly, then, does Cinna put his question, “admitting that slaves may become booty, and that their property becomes vested in the captor, has he not a right to restore them, if he pleases, at a peace?”
I answer, yes; if he has retained till that time the property acquired by the capture; but most certainly not if he had previously parted with it by infranchisement of the slave—his right had then ceased. Liberty once gained could not be revoked. There was no legal or moral power of doing it, and to have done it at all would have been the extreme of treachery, perfidy, and baseness. All the observations of Cinna, founded upon a contrary supposition, are futile and absurd.
It is a mere sophism to say, that it was less immoral to abandon the negroes to slavery, than not to make restitution to the owners from whom they had been allured to be armed against their masters. Two wrongs do not make a right—one immoral thing does not obviate the immorality of a prior immoral thing. However censurable the first act was, the last would not have repaired the criminality. It would have added guilt to guilt—nor is there any comparison between the degree of turpitude of the two things. To have withdrawn slaves from their masters as a public enemy, and to have employed them against those masters, was an act, tho’ odious, far less odious than would have been the abandonment of those persons to the bondage of their former masters, after they had been so used on the promise of liberty. The feelings of every real friend to liberty must be in unison with this assertion.
Considering the first act as improper, & supposing there was an intention to make reparation, the true and the only way consistent with justice and morality was to stipulate compensation for the negroes in question.
But this the article does not do. If it promises any thing more than to abstain from new acts of depredation, it promises specifically the abandonment of the negroes to their former slavery.
This Camillus has truly asserted to be odious and immoral, and as such forming an objection to our construction of the article. And he also truly asserts that the substitution of compensation does not obviate the difficulty.
For no proposition in Euclid is more clear than this, “that where a specific thing is promised, nothing but the doing that very thing is performance of the promise.” The giving an equivalent may amount to reparation, but it is not performance. Whence it follows incontestibly, that the possibility of an equivalent, as a substitute which is not odious or immoral, cannot obviate an objection to such a meaning of a promise as would require a specific thing, which is odious and immoral.
It is a mere evasion of this argument to say with Cinna, that “nothing is more common than a satisfaction in damages for the breach of a promise to do a specific thing.” This presupposes, and so in all law proceedings it is constantly charged, that the promise has been broken, and the damages are awarded not as performance of the promise, but as satisfaction for the breach.
But this does not touch the point of Camillus’s argument, “that you cannot suppose a thing to be promised which is in itself odious or immoral, because pecuniary compensation may be made; inasmuch as compensation is not performance, but a substitute for it, which, especially as between nations, the party to whom the promise is made is not obliged to accept. Consequently if the thing itself was improper to be promised, or is improper to be performed, it is not the less objectionable, because it is possible by way of reparation to do another thing in lieu of it; that is, to make compensation.” This argument, if rightly understood is, unanswerable. If Cinna does not comprehend it, ‘tis not Camillus’s fault. He was not bound to find Cinna argument and understanding too.
Cinna charges Camillus with blazoning the virtues and humanity of his Britannic Majesty, and with representing him as very scrupulous about doing an odious or immortal act. This is false and despicable rant. There is not a syllable in Camillus which warrants the suggestion. He speaks of things only, and without any allusion whatever to the character of his Britannic Majesty.
He says, indeed, that the abandonment of negroes, who had been promised freedom, to bondage and slavery, would be odious and immoral, and as such cannot be presumed to have been intended. This is a general argument without allusion to personal character, and would have been equally true whether a Caligula or a Marcus Aurelius had filled the throne of Great Britain.
Cinna recommends a perusal of Mr. Jefferson’s letter as an antidote to the doctrines of Camillus,6 and as a convincing vindication of our pretensions. That letter does not even examine the point as to the true construction of the article in question, but takes our sense of it for granted, and builds on that foundation. On the score of ingenuity and good penmanship, it does credit to its writer; but its general complexion is that of the harangue of an advocate, resolved to justify his client through thick and thin. Camillus has truly observed that it’s the first public act which attempts to vindicate or excuse in the gross the conduct of this country in regard to the treaty of peace. It may be added, that it has the merit of attaching to the general government, by the justification of them, the disrepute of measures which was before confined to particular states, and which it had been the policy of the union to repel from itself, on the ground of its inability to prevent. And, in general, it is a piece which speaks loudly the prejudice of its writer, and more than any state paper of this country tends to do mischief, by misleading the public opinion. Camillus has shewn that its reasonings about the first breach of the treaty are inconclusive, and in doing this has pointed out two great errors; one, that it dates the obligation to performance on the part of Great Britain from the provisional articles, while it virtually considers the United States as not bound till after the definitive treaty; the other, that it asserts it to have been “perfectly understood, that treaties controuled the laws of the States,” when documents which itself quotes, prove, that the State of Virginia by solemn acts of its general assembly expressed and acted upon a different understanding.7 Errors like these overthrow the whole fabric.
The last observation of Cinna is by way of question. He asks “if Camillus is right, how happened it that a majority of the Senate at their late session agreed to invite the President to renew negociations for a compensation for the negroes?”8 By the way, while Camillus has stated the arguments which support the British construction, he has given no opinion of his own, except that it is a very doubtful point. But the measure of the Senate which Cinna cites is very easily explained. The claim of compensation for the negroes was near the heart of a respectable portion of the people of the United States. A right to it had become extensively a part of the public creed. It was desireable by every possible effort to give satisfaction. It is no proof that a Senator thought the merits of the question with us, because he was willing by one more experiment to mask his attention to the opinions and interests of a number, not inconsiderable of his fellow-citizens.
The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 7, 1795.
2. Thomas Greenleaf, the publisher of The Argus.
3. “Cinna” was the pseudonym used by Brockholst Livingston in a series of articles attacking the Jay Treaty. For the authorship of the “Cinna” essays, see the introductory note to “The Defence No. I,” July 22, 1795.
4. “Cinna’s” criticisms are directed against statements made in “The Defence No. III,” June 29, 1795, and are contained in the first of his six essays (The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 1, 1795).
5. In the newspaper, “to obtain from further plunster.”
6. “Cinna” had written: “It is proper to subjoin, that the construction of the article by Camillus is opposed to the interpretation which our government have uniformly put upon it, is contrary to the explanation of it, by Mr. Jefferson, the perusal of whose correspondence witih Mr. Hammond is recommended, as the best antidote against the mischievous and humiliating doctrines, so warmly inculcated by this writer” (The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 1, 1795). “Cinna” is referring to Thomas Jefferson’s letter of May 29, 1792, to George Hammond, the British Minister to the United States (ADf, Thomas Jefferson Papers, Library of Congress; 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, 201–37).
8. The motion was made by Senator James Gunn of Georgia on June 24, 1795, and with the deletion of one paragraph it was passed on June 25 (Annals of Congress description begins The Debates and Proceedings in the Congress of the United States; with an Appendix, Containing Important State Papers and Public Documents, and all the Laws of a Public Nature (Washington, 1834–1849). description ends , IV, 863–64).