The Defence No. VI1
[New York, August 8, 1795]
There is one more objection to the Treaty for what it does not do, which requires to be noticed. This is an omission to provide against the empressment of our seamen.2
It is certain that our Trade has suffered embarrassments in this respect, and that there have been abuses which have operated very oppressively upon our seamen; and all will join in the wish that they could have been guarded against in future by the Treaty.
But it is easier to desire this than to see how it could have been done. A general stipulation against the impressment of our seamen would have been nugatory if not derogatory. Our right to an exemption is perfect by the laws of nations,3 and a contrary right is not even pretended by Great Britain. The difficulty has been and is to fix a rule of evidence by which to discriminate our seamen from theirs and by the discrimination to give ours protection, without covering theirs in our service.4 It happens that the two nations speak the same language and in every other exterior circumstance closely resemble each other—that many of the natives of Great Britain and Ireland are among our citizans and that others without being properly our citizens are employed in our vessels.
Every body knows that the safety of Great Britain depends on her Marine. This was never more emphatically the case, than in the war in which she is now engaged. Her very existence as an independent power seems to rest on a maritime superiority.
In this situation can we be surprised that there are difficulties in bringing her to consent to any arrangement which would enable us by receiving her seamen into our employment to detach them from her service? Unfortunately there can be devised no method of protecting our seamen which does not involve that danger to her. Language & appearance instead of being a guide, as between other nations, are between us and Great-Britain sources of mistake and deception. The most familiar experience in the ordinary affairs of society proves that the oaths of parties interested can not be fully relied upon. Certificates of citizenship by officers of one party would be too open to the possibility of collusion and imposition to expect that the other would admit them to be conclusive. If inconclusive, there must be a discretion to the other party which would destroy their efficacy.
In whatever light it may be viewed there will be found an intrinsic difficulty in devising a rule of evidence safe for both parties and consequently in establishing one by Treaty. No nation would readily admit a rule which would make it depend upon the good faith of another and the integrity of its agents whether her seamen in time of War might not be withdrawn from her service and transferred to that of a neutral power. Such a rule as between Great Britain and us would be peculiarly dangerous on account of the circumstances which facilitate a transfer of seamen from one to the other. Great Britain has accordingly perseveringly declined any definitive arrangement on the subject—notwithstanding earnest & reiterated efforts of our Government.
When we consider candidly the peculiar difficulties which various circumstances of similitude between the people of the two countries oppose to a satisfactory arrangement, and that to the belligerent party it is a question of national safety, to the neutral party a question of commercial convenience & individual security, we shall not be the less disposed to think the want of such a provision as our wishes would dictate, a blemish in the Treaty.
The truth seems to be that from the nature of the thing it is matter of necessity to leave it to occasional and temporary expedients—to the effect of special interpositions from time to time to procure the correction of abuses and if the abuse becomes intolerable to the ultima ratio. The good faith of the parties and the motives which they have to respect the rights of each other and avoid causes of offence, and vigilance in noting and remonstrating against the irregularities which are committed are probably the only peaceable securities of which the case is susceptible. Circumstances appear to forbid any thing more; and it was not to be expected of our envoy that he would accomplish impossibilities. Those who are in the habit of seeing that there is always more than one side to a question will be most ready to acknowlege the justice of this conclusion.5
Our Minister Plenapotentiary, Mr. Pinkney, it is well known has long had this matter in charge and has strenuously exerted himself to have it placed upon some acceptable footing. But his endeavours have been unsuccessful further than to mitigate the evil by some additional checks and by drawing the attention of the British Government to the observance of greater caution.6 A more sensible effect of our representations has been latterly experienced; and with attention and vigilance that effect may be continued and perhaps increased. But there is reason to conclude that it will be constantly found impracticable to establish a conventional and efficacious guard.
I proceed now to the examination of the several articles of the Treaty in the order in which they stand.
The first contains merely a general declaration that there shall be peace and friendship between the contracting parties the countries and people of each, without exception of persons or places.7
One would have imagined that this article at least would have escaped a formal objection, however it might have been secretly viewed as the most sinful of all, by those who pant after war and enmity between the two Countries. Nothing but the fact could have led to a surmise, that it was possible for it to have been deemed exceptionable; and nothing can better display the rage for objection which actuates the adversaries of the Treaty than their having invented one against so innocent a provision.
But the Comittee appointed by a Meeting at Charlestown South Carolina have sagaciously discovered that this article permits “the unconditional return to our Country of all persons who were proscribed during the late war.”8
With all but men determined to be dissatisfied it would be a sufficient answer to such an objection to say that this article is a formula in almost every treaty on record and that the consequence attributed to it was never before dreamt of, though other nations besides ourselves have had their proscriptions and their banishments.
But this is not all. Our Treaty of Peace with Great Britain in 1783 has an equivalent stipulation in these words (Article 6) “There shall be a firm and perpetual peace between his Britannic Majesty and the said States and between the subjects of the one and the Citizens of the other.”9 In calling this an equivalent stipulation I speak with reference to the objection which is made. The argument to support that objection would be to this effect. “Exiles and criminals are not regarded as within the peace of a country: but the people of each are by this article placed within the peace of the other: therefore proscribed persons are restored to the peace of the U States and so lose their character of exiles and criminals.”
Hence the argument will turn upon the word “peace” the word friendship will have no influence upon the question. In other respects there is no difference in substance between the two articles. For the terms “people” “subjects” “citizens” as used in the two treaties are synonimous. If therefore the last Treaty stipulates that there shall be peace between the Governments countries and people of the two Nations—the first stipulates what is equivalent that there shall be peace between the two Governments and the subjects & citizens of each. The additional words, without exception of persons or places can make no difference—being mere surplussage. If A says to B “I give you all the money in this purse”; the gift, is as complete as if he had said, “I give you all the money in this purse, without exception of a single dollar.”
But the object of the stipulation and the subject of the objection have no relation whatever to each other. National stipulations are to be considered in the sense of the laws of nations. Peace in the sense of those laws defines a state which is opposite to that of War. Peace in the sense of the municipal law defines a state which is opposite to that of criminality. They are consequently different things and a subject of Great Britain by committing a crime may put himself out of the peace of our Government in the sense of our municipal laws while there might be perfect peace with him in the sense of the laws of Nations & vice versa there might be war with him in the sense of the laws of Nations & peace in that of the municipal law.
The punishment of a subject of Great Britain as a felon would certainly not constitute a state of war between the parties nor interfere with the peace which is stipulated by this article—though it is declared that it shall be inviolable and might as well be affirmed to prevent the punishment of future as of former criminals.
But who in the contemplation of the laws of the respective States are the proscribed persons? They must be understood to have been subjects or citizens of the states which proscribed them—Consequently can not be presumed to be comprehended in an article which stipulates peace between the nations and their respective Citizens. This is not a stipulation of peace between a nation and its own criminal citizens—nor can the idea of expatriation be admitted to go so far as to destroy the relation of citizen as it regards amenability for a crime. To this purpose at least the offender must remain a citizen.
There can hardly have been a time when a Treaty was formed between two Nations, when one or the other had not exiled criminals or fugitives from justice which it would have been unwilling to reinstate. Yet this was never deemed an obstacle to the article nor has an immunity from punishment ever been claimed under it, nor is there the least ground to assert that it might be claimed under it.
It follows that the objection which has been taken to this article is wholly without foundation. It is humiliating to the human understanding or disreputable to the human heart that similar objections should come from sensible men. It is disgustful to have to refute them. The regard I feel for some of those who have brought it forward makes it a painful task. How great is the triumph of passion over judgment on this occasion!
☞From a note of the Editor of this paper it is to be inferred that a piece has been sent to him charging the Writer of Camillus with having liberated some person from jail to insult or fight those who are called respectable Whigs.10 The suggestion is a total falsehood. The Writer of Camillus has not recently liberated any person from Jail—though if he had it would not be the first instance that laudable actions have been misconstrued and imputed to him as crimes. This is a specimen of the detestable arts which are employed to excite resentment against the supposed Author of Camillus. What does all this mean?
ADf, Hamilton Papers, Library of Congress; The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 8, 1795.
2. For an example of this criticism of the Jay Treaty, see “Cinna No. 2” by Brockholst Livingston (The [New York] Argus, or Greenleaf’s New Daily Advertiser, July 17, 1795). For the authorship of the “Cinna” essays, see the introductory note to “The Defence No. I,” July 22, 1795.
3. No statement by any writer on the laws of nations regarding the impressment of seamen has been found. Vattel, however, wrote: “Mercenary soldiers engage themselves, and enlist voluntarily. The sovereign has no right to compel foreigners; he is not even to make use of artifice or surprize, for inducing them to engage in a contract, which, like all others, should be founded on candor and probity” (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, Chap. II, Sec. 14).
4. See Thomas Jefferson to George Washington, February 7, 1792 (LC, George Washington 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, 131).
5. The last two sentences of this paragraph are omitted in the newspaper.
6. See Lord Grenville to Thomas Pinckney, December 26, 1794, January 8, 14, March 13, 14, 20, 1795 (copies, RG 59, Despatches from United States Ministers to Great Britain, 1791–1906, Vol. 3, November 29, 1791–May 4, 1797, National Archives); Pinckney to Edmund Randolph, October 21, 1794, Pinckney to Edmund Randolph, October 21, 1794, February 2, February 2, March 17, 1795 (ALS, RG 59, Despatches from United States Ministers to Great Britain, 1781–1906, Vol. 3, November 29, 1791–May 4, 1797, National Archives). On February 2, 1795, Pinckney wrote to Randolph: “Mr. Jay and I continue to be treated with great Attention by the Members of the Administration and I have lately been more successful than heretofore in obtaining the Liberation of our impressed Mariners. The Decisions in the Court of Admiralty appear also to be more favorable to our Citizens than they were some time past” (ALS, RG 59, Despatches from United States Ministers to Great Britain, 1791–1906, Vol. 3, November 29, 1791–May 4, 1797, National Archives). Again on March 17, 1795, he wrote: “… my Applications through the Department of State to the Admiralty in behalf of impressed Mariners are much more expeditiously decided on and Answers given than heretofore, and … in general this Government seems disposed to give the friendly System a fair Trial” (ALS, RG 59, Despatches from United States Ministers to Great Britain, 1791–1906, Vol. 3, November 29, 1791–May 4, 1797, National Archives).
7. For the text of Article 1 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 2.
8. A committee of fifteen, elected by ballot on July 17, 1795, after a meeting of citizens the previous day in Charleston, presented its findings on the Jay Treaty at a public meeting on July 22. The committee’s statement on Article 1 of the treaty reads: “The first article, though usual in treaties, would be particularly mischievous in this, inasmuch as it permits the unconditional return to our country, of all persons who were proscribed during the late war, though their return is repugnant to our laws, and to the feelings of our injured fellow citizens, and though the state legislatures have already proceeded as far in readmitting such persons, as they judged consistent with good faith or sound policy” (Report of the Select Committee, Chosen by Ballot of the Citizens of the United States, in Charleston, South-Carolina, in pursuance of a Resolution of a general Meeting of the Citizens, in St. Michael’s Church, on Thursday, the sixteenth of July, 1795 [Charleston: Printed by W. P. Young, Broad-Street, n.d. (George Washington Papers, Library of Congress)]).
9. H was mistaken, for the quotation is from Article 7 rather than Article 6 of the definitive treaty of peace of 1783. 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 , 155.
10. On August 5, 1795, the following notice appeared in The [New York] Argus, or Greenleaf’s New Daily Advertiser: “The address to Camillus Pacificus, Esq. we have thought proper to postpone publishing, its being, in our opinion, rather premature. The gentleman to whom it is addressed seems to be doing his own business as fast as he can—let him have rope enough. If he has (tho’ poor) liberated a Jail Bird, for the purpose of employing him to insult or fight any of our respectable whigs, the time is fast approaching when we shall know who and who are together in firm determination to oppose treachery.”
In the newspaper version of this document an asterisk appears after “whigs” and the following paragraph appears in brackets at the end of H’s note: “[* It will be observed, that this note is written by Camillus. For ought Camillus knows, a disbelief of the ‘suggestion’ induced the Editor of the Argus to reject the piece, as he generally does all observations of a personal nature.]”