The Defence No. VIII1
[New York, August 15, 1795]
One of the particulars in which our Envoy is alleged to have fallen short of what might and ought to have been done respects the time for the surrender of the Western posts. It is alleged, that there ought either to have been an immediate surrender or some guarantee or surety for the performance of the new promise. Both parts of the alternative presuppose that Great Britain was to have no will upon the subject—that no circumstances of security or convenience to her were to be consulted, that our Envoy was not to negotiate but to command.2 How unsubstantial the foundation on which this course of proceeding is recommended has been already developped.3
The fact was, that our Envoy urged a prompt surrender. The British Minister answered that this could not be—that representations against it had been received from the companies concerned in the Western Trade upon considerations which that Government could not refuse to respect—that the arrangements of those companies were made without expectation of the event which was then contemplated—that it required not less than Eighteen months to wind up pending enterprises and make new dispositions corresponding with the proposed change—that among other inconveniences to be anticipated from a sudden change they might be exposed to the resentment of the Indians—to prepare whose minds for the event time was requisite—that shortly after the Treaty of Peace, Agents of the U States had held a language to the Indians importing that they had been abandonned and sacrificed by Great Britain,4 an intimation from which much embarrassment had been experienced—that this circumstance was a motive to caution—as what had happened once might happen again and much mischief might ensue.5
What6 was to be done in this case? Was the negotiation to break off or was the delay to be admitted? The last was preferred by our envoy and the preference was rightly judged.
The consequence of breaking off the Negotiation has been stated. No reasonable man will doubt that delay was preferable to War, if there be good ground of reliance that the stipulation will be fulfilled at the appointed time. Let us calmly examine this point.
The argument against it is drawn from the breach of the former promise. To be authorised to press this argument we ought to be sure that all was right on our part. After what has been offered on this subject, are we still convinced that this was the case? Are we able to say that there was nothing in our conduct which furnished a ground for that of Great Britain? Has it not been shewn to be a fact that from the arrival of the provisional articles in this country till after the ratification here of the definitive Treaty acts of States interdicting the recovery of British Debts7 and other acts militating against the Treaty continued in operation? Can we doubt that subjects of Great Britain affected by these acts carried their complaints to the ears of their Government? Can we wonder if they made serious impressions there, if they produced dissatisfaction and distrust? Is it very extraordinary, if they excited the idea of detaining the posts as a pledge till there were better indications on our part? Is it surprising, if the continuance of those acts and the addition of others which were new & positive breaches of the Treaty prolonged the detention of the posts?
In fine—was the delay in surrendering so intirely destitute of cause, so unequivocal a proof of a perfidious character as to justify the conclusion that no future dependence can be made on the promises of the British Government? Discerning men will not hastily subscribe to this conclusion.
Mutual charges of breach of faith are not uncommon between nations. Yet this does not prevent their making new stipulations with each other and relying upon their performance. The argument from the breach of one promise, if real, to the breach of every other is not supported by experience—and if adopted as a general rule would multiply infinitely the impediments to accord and agreement among nations.
The truth is, that though nations will too often evade their promises on colorable pretexts, yet few are so profligate as to do it without such pretexts. In clear cases, self interest dictates a regard to the obligations of good faith. Nor is there any thing in the history of Great Britain which warrants the opinion that she is more unmindful than other nations of her character for good faith.
Yet she must be so, and in an extreme degree, if she be capable of breaking without real cause, a second promise on the same point, after the termination by a new Treaty of an old dispute concerning it and this too on the basis of mutual reparation. It would indicate a destitution of principle, a contempt of character much beyond the usual measure; & to an extent which it may be affirmed is intirely improbable.
It is a circumstance of some moment in the question that the second promise is free from the vagueness of the first as to the time of execution. It is not to be performed with all convenient speed,8 but by a day certain, which cannot be exceeded.9 This would give point to violation, and render it unequivocal.
Another argument against the probability of performance has been deduced from the supposed deficiency of good reasons for the delay, which is represented as evidence of want of sincerity in the promise.
Besides the reasons which were assigned for that delay there are others that may be conjectured to have operated which it would not have been equally convenient to avow but which serve to explain the delay different from the supposition of its having been calculated for ultimate evasion. If, as we have with too much cause suspected, Great Britain or her Representative in Canada, whether with or without orders, has really countenanced the hostilities of the Western Indians, it was to be expected that she would think it incumbent upon her to give them sufficient time to make peace before an evacuation of the posts should put them intirely in our power. She might otherwise have provoked them to hostilities against her own settlements; and have kindled in their minds inextinguishable resentments. It was not certain how soon a peace could be brought about, and it might be supposed that the disposition to it on our part might be weakened or strengthened by the proximity or remoteness of the period of the surrender. Moreover some considerable time might be requisite to prepare those establishments for the security of Canada which the relinquishment of the posts on our side would be deemed to render necessary.
The latter motive is one not justly objectionable. The former implies an embarrassment resulting from a culpable policy, which was intitled to no indulgence from us, but which nevertheless must have had a pretty imperious influence on the conduct of the other party and must have created an obstacle to a speedy surrender not easy to be surmounted. Taken together, we find in the reasons assigned and in those which may be presumed to have operated a solution of the pertinacity of Great Britain on the subject of time, without impeaching on that account the sincerity of the promise to surrender.
But we have very strong holds for the performance of this promise upon the interest of Great Britain—1 the interest which every nation has in not intirely forfeiting its reputation for honor and fidelity 2 the interest which results from the correlative stipulation with regard to the indemnification for the British Debts,10 a point upon which there will be no inconsiderable mercantile sensibility 3 the interest of preserving peace with this country, the interruption of which after all that has passed could not fail to attend the non-surrender of the posts at the stipulated time.
It is morally certain, that circumstances will every day add strength to this last motive. Time has already done much for us and will do more. Every hour’s continuance of the war in Europe must necessarily add to the inconvenience of a rupture with this country and to the motives which Great Britain must feel to avoid an increase of the number of her enemies, to desire peace, and if obtained to preserve it.
The enemies of the Treaty upon their own calculations can hardly dispute, that if the War continues another year after the present, the probable situation of Great Britain will be a complete security for her compliance with her promise to surrender the posts. But let us suppose that a general peace takes place in Europe this Winter—what may then be the disposition of Great Britain in June next as to War or peace with this Country?
I answer that the situation will be of all others that which is most likely to indispose her to a War with us. There is no juncture at which War is more unwelcome to a Nation than immediately after the experience of another War which has required great exertions and has been expensive bloody & calamitous. The minds of all men then dread the renewal of so great an evil, and are disposed rather to make sacrifices to peace than to plunge afresh into hostilities. The situation of Great Britain at the end of the war in which she is now engaged is likely to be the most discouraging that can be imagined to the provocation of new wars. Here we may discover a powerful security for the performance of her stipulations.11
As to the idea of a Gu[a]rantee or Surety for the fulfilment of the promise, it cannot be seriously believed that it was obtainable. It would have been an admission of the party that there was a well founded distrust of its faith. To consent to it therefore would have been to subscribe to its own humiliation and disgrace, the expectation of which has been shewn too ridiculous.
But why was there not equally good reason that we should give a guarantee or surety for the performance of our new promise with regard to the Debts? And if there was to have been reciprocity, where should we have conveniently found that guarantee or surity? Should we have thought it very reputable to ourselves to have been obliged to furnish it?
The arguments of the opposers of the Treaty are extremely at variance with each other. On the one hand they represent it as fraught with advantages to Great Britain without equivalents to the U States—as a premeditated scheme to sacrifice our Trade and Navigation to hers as a plan dictated by her for drawing the two countries into close connection and alliance and for making our interests subservient to hers; on the other hand, they tell us that there is no security for the surrender of the posts according to stipulation. How is the one thing to be reconciled with the other? If the Treaty is such an immense boon to Great Britain, if it be such a master piece of political craft on her side—can there by any danger that she will destroy her favourite work by not performing the conditions on which its efficacy & duration must depend? There is no better settled position than that the breach of any article of a Treaty by one party gives the other an option to consider the whole Treaty as annulled. Would Great Britain give us this option in a case in which she had so much to lose by doing it?
This glaring collision of arguments proves how superficially the adversaries of the Treaty have considered the subject, and how little reliance can be placed on the views they give of it.
In estimating the plan which the Treaty adopts for the settlement of the old controversy, it is an important reflection, that from the course of things, there will be nothing to be performed by us before the period for the restitution of the posts will have elapsed, and that if this restitution should be evaded we shall be free to put an end to the whole Treaty, about which there could not be a moments hesitation. We should then be where we were before the Treaty, with the advantage of having strengthened the justice of our cause by removing every occasion of reproach which the infranctions of the Treaty of peace may have furnished against us.
Two other particulars, in which this part of the Treaty is supposed to be defective, regard the want of indemnification for the detention of the posts and for the expences of Indian Wars.
Those who make the objection may be safely challenged to produce precedents of similar indemnifications, unless imposed by conquering powers on the vanquished, or by powers of overbearing strength upon those which were too weak to dispute the logic of superior force. If this were the relative situation of the U States and Great Britain then is the Treaty inexcusably faulty—but if the parties were to treat and agree as equal powers, then is the pretension extravagant and impracticable. The restitution of the specific thing detained is all that was to be expected, and it may be added, it is all that was ever really expected on the part of this country so far as we may reason either from official acts or informal expressions of the public opinion.12
In cases where clear injuries are done affecting objects of known or easily ascertainable values, pecuniary compensation may be expected to be obtained by negotiation; but it is believed that it will be impossible to cite an example of such compensation so obtained, in a case in which territory has been held on a dispute of Title or as a hostage for some other claim, (as in the present instance for securing the performance of the [4th]13 article of the Treaty of Peace.) The recovery of the territory witheld is the usual satisfaction.
The want of a rule to adjust consequential damages is in such cases a very great difficulty. In the instance under discussion, this difficulty would be peculiarly great. The posts are for the most part in a wilderness. There are but two of them which have any adjacent settlements—Point au fer or Dutchmans point to one of which a part of a tract of land called Caldwells Manor has been claimed as appurtenant.14 Lake Champlain with very few inhabitants is appurtenant.15 Detroit which has a settlement in the town & neighbourhood of between two & three thousand souls. In the vicinity of the other posts there is scarcely an inhabitant. It follows that very little damage could be predicated either upon the loss of revenue from or of the profits of Trade with the settlements in the vicinity of the posts. The trade with the Indians within our limits would consequently be the basis of the claim of compensation. But here the ignorance or spirit of exaggeration of the opponents of the Treaty has been particularly exemplified. The annual loss from this source has been stated by a very zealous Writer against the Treaty who signs himself Cato at 800 000 Dollars.16
Now it is a fact well ascertained that the mean value of the whole exports from Canada in peltries (which constitute the returns of Indian Trade) in the years 1786 & 1787 was something short of 800 000 Dollars. It is also a fact in which all men informed on the subject agree that the Trade with the Indians within our limits17 is only about one eighth of that which furnishes the peltry exported from Canada. Hence the total product of our Indian Trade could not be computed at more than 100 000 Dollars. What proportion of this may be profit is not easy to be determined but it is certain that the profits of that Trade from the diminution of wild animals and the inferiority of their kinds are not considerable. Many assert that it is scarcely any longer worth following. Twenty Cent therefore would probably be a large allowance, which would bring the loss on our Indian Trade by the detention of the posts to about 20 000 instead of 800 000 Dollars per annum as has been asserted.
But might not a claim even of this sum by way of indemnification be encountered with some force by the observation that there is the highest probability that the capital and labour which would have been employed producing 20 000 Dollars profit on the Trade with the Indians have been quite as productively employed in other channels and consequently that there may have been no loss at all?
Thus we see how erroneous the data which serve to magnify claims in themselves insignificant, and which from the great uncertainty of their quantum, are exposed to serious objections. Are claims like these proper subjects on which to stake the peace of the U States?
The reasonableness of indemnification for the expences of Indian Wars, independent of the unusual nature of the claim might have been matter of endless debate. We might have been told that the Indians ascribe those wars to pretensions upon their lands by virtue of Treaties with the former Government of the U States imposed by violence or contracted with partial and inadequate representations of their Nation—that our own public records witness that the proceedings of our Agents at some of those Treaties were far from unexceptionable—that the wars complained of are to be attributed to errors in our former policy or mismanagements of our public Agents not to the detention of the posts—that it must be problematical how much of the duration or expences of those wars are chargeable upon that detention and that the posts having been detained by way of security for the performance of the article respecting debts there was no responsibility for collateral and casual damages. Had we resorted to the charge of their having instigated or prompted those wars, they would have denied the charge as they have repeatedly done before, and though we might have been able to adduce circumstances of suspicion against them they would have contested their validity and force, and would have thought their honor concerned in avoiding the most distant concession of having participated in so improper a business.
In every view therefore the claim for indemnification was a hopeless one, and to insist upon it could have answered no other purpose than to render an amicable adjustment impossible. No British Minister would have dared to go to a British Parliament to ask provision for such an expenditure. What then was to be done? Were we now or hereafter to go to War to enforce the claim? Suppose this done and fifty or a hundred millions of Dollars18 expended in the contest—what certainty is there that we should at last accomplish the object? Moreover the principle of such a war would require that we should seek indemnification for the expences of the war itself in addition to our former claim. What prospect is there that this would be effected? Yet if it was not effected it is evident that we should have made a most wretched bargain.
Why did we not insist on indemnification for the expences of our Revolution War? Surely not because it was less reasonable but Because it was evident that it could not have been obtained and because peace was necessary to us as well as to our enemy.
This likewise would be the end of a war undertaken to enforce the claim of indemnification for the detention of the posts. We should at length be glad to make peace either without the indemnification sought or at best at an expence to carry on the war without a chance of reimbursement witih which the thing gained would bear no comparison.
The idea which has been thrown out of leaving the posts in the hands of the British till we might be better able than at present to go to war for indemnification is a notable political expedient. This would be to postpone of choice the possession of an object which has been shewn to be demanded by very urgent and important general considerations—to submit to certain and great inconveniences from that privation including probably the continuance or renewal of Indian hostilities and to run the risk from the growth of the British settlements in the neighbourhood of the posts and various unforeseen casualties of their ultimate acquisition becoming difficult and precarious—for what? Why to take at last the chances of War, the issue of which is ever doubtful, for obtaining an object which if obtained will certainly cost more than it is worth. The expences of war apart, pecuniary indemnification upon any possible scale would ill compensate for the evils of the future detention till the more convenient time for going to War should arrive. What should we think of this policy if it should turn out that the posts and the indemnification too were to be finally abandonned?19
ADf, Hamilton Papers, Library of Congress; The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 15, 1795.
2. The allegations in the preceding sentences were made by several opponents of the treaty, but in this particular instance H is apparently paraphrasing the arguments advanced in the first “Cato” essay by Robert R. Livingston (The [New York] Argus, or Greenleaf’s New Daily Advertiser, July 15, 1795). For the authorship of these essays, see the introductory note to “The Defence No. I,” July 22, 1795. See also “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795; “The Defence No. III,” July 29, 1795; “The Defence No. IV,” August 12, 1795.
4. H is referring to a speech delivered by the United States Indian commissioners on October 12, 1784, during the negotiations for the Treaty of Fort Stanwix (Neville Craig, ed., The Olden Time [Cincinnati, 1876], II, 414).
5. This paragraph is a paraphrase of a portion of one of John Jay’s dispatches to Secretary of State Edmund Randolph, November 19, 1794. See “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 4.
It should also be noted that the paragraph in question from the MS does not appear in the newspaper. In its place are two paragraphs which read: “The fact was that our envoy pressed an early evacuation of the Posts; but there was an inflexible adherence on the other side to the term limited in the treaty. The reasons understood to have been assigned for it, were to this effect: (viz.) That according to the course of the Indian trade, it was customary to spread through the nations, goods to a large amount, the returns for which could not be drawn into Canada, in a shorter period than was proposed to be fixed for the evacuation; that the impression which the surrender of all the Posts to American garrisons might make on the minds of the Indians, could not be foreseen; that there was the greater reason for caution, as on a former occasion it had been intimated to them by public agents of the United States, that they had been forsaken and given up by the British government: that the protection promised on our part, however sincere and however competent in other respects, might not be sufficient in the first instance to prevent the embarrassment which might ensue; that for these reasons the traders ought to have time to conclude their adventures, which were predicated upon the existing state of things; that they would in future calculate upon the new state of things but that in the mean time the care of government ought not to be withdrawn from them.
“There is ground to believe that there were representations on behalf of the Canada traders, alledging a longer term than that which was adopted in the treaty, to be necessary to wind up and adopt their arrangements to the next state of things; and that the term suggested by them was abridged several months. And it may not be useless to observe, as explanatory of the reasons given, that in fact it is the course of the trade to give long credits to the Indians, and that the returns for goods furnished in one year only, come in the next year.”
6. In the draft H started this paragraph with the following sentences, which he crossed out: “These were the reasons principally assigned by the British negotiator. Though they were not without weight, answers could be and were given to them. The answers which were given to them did not satisfy. The first of June 1796 was insisted upon as the shortest practicable term.”
7. At this point in the draft H wrote and crossed out the following: “continued unrepealed that when the ratification was received in England it was unaccompanied by an account of their repeal? Can we doubt that these laws were represented by the British Merchants to the British Government as subsisting obstacles to the recovery of their debts for the removal of which they had a right to some pledge? Is it not a fact that our general Government had manifested symptoms of impotency which gave just cause to doubt its power to enforce the fulfilment of its engagements? that among other causes of inability it was even destitute of Indians of its own? Did not these circumstances afford real occasion of doubt to the British Government whether the article respecting the debts would be complied with by us? Did this furnish no excuse for delay in surrendering the posts? Did not a continuance of the same circumstances continue the excuse for further delay?”
8. The words in italics are from Article 7 of the definitive treaty of peace of 1783 (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).
9. Article 2 of the Jay Treaty reads in part: “This Evacuation shall take place on or before the first Day of June One thousand seven hundred and ninety six …” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 246). For the text of Article 2, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 3.
10. This is a reference to Article 6 of the Jay Treaty. For the text of this article, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 13.
11. At this point in the draft H wrote and crossed out: “But it may be asked did not consideration of similar import ensure us better terms from Great Britain in the formation of the Treaty.”
12. In the margin opposite this sentence H wrote “Qr.” In addition, at this point in the draft H wrote and crossed out: “A demand of the surrender of the posts has been repeatedly made but unaccompanied in any instance to my recollection with a demand of compensation for the detention. As to indemnification for the expence of Indian Wars, the mention of it till the present moment would have been considered as little less than insanity.
“What British Minister would have been hardy enough to have gone to the House of Commons to ask provision for such a stipulation?”
In the margin opposite this crossed-out material H wrote and crossed out: “Qr. as to Mr Jays instructions.”
13. Space left blank in MS. The bracketed material has been taken from the newspaper. For the text of Article 4 of the definitive peace treaty of 1783, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1794, note 14.
14. Pointe-au-Fer and Dutchman’s Point were British posts at the northern end of Lake Champlain. Pointe-au-Fer is on the western shore of the lake about seven miles from the Canadian border. Dutchman’s Point, on the island of North Hero, included in its jurisdiction Caldwell’s Manor, which occupied part of a spit of the mainland in the neighborhood of Alburg, Vermont. See “Conversation with George Beckwith,” June 15, 1791.
15. This sentence is omitted in the newspaper.
16. This statement is from the first article by “Cato” (Robert R. Livingston) in The [New York] Argus, or Greenleaf’s New Daily Advertiser, July 15, 1795.
17. At this point in the newspaper there is an asterisk referring the reader to the table printed at the end of this essay.
18. In the newspaper these figures are “fifty or a hundred dollars.”
19. On the same day on which this issue of “The Defence” appeared in The [New York] Argus, or Greenleaf’s New Daily Advertiser, the following letter, written by “A Loyalist of ’75” and addressed to H, was printed in the same newspaper: “As wounds heal far better before, than after they have festered, I beseech you to use your influence with Camillus, to discontinue his laborious work of defending the Treaty, for a few days, and take up the justification of Capt. Home, of the Africa, for his trifling curiosity, at RhodeIsland; and also, of the little Faux pas made by another British Captain, in getting a peep at Mr. Munroe’s dispatches from France. A defence of these two occurrences, will be found much easier, than the tedious defence he is now engaged in; besides he can continue the old thread of occurrences after he has quieted the minds of the Swinish Multitude upon the two events aforementioned.”
For Captain Rodham Home of H.M.S. Africa, see George Washington to H, August 31, 1795, note 3.
On May 21, 1795, Secretary of State Edmund Randolph wrote to George Hammond to remonstrate “… that on board of the Pomona, which was lately carried as a prize into Halifax, were three letters addressed to me, as Secretary of State, by Mr. Monroe, our minister at Paris: That they were opened in the Admiralty there by the Attorney General: … that in all probability copies have been taken of them, and that the officers in possession of them refused to deliver them up.
“… it must have been manifest from the address, the signature, and the purport of the first sentence, that the letters were official: and that the violation of them was perpetrated in the face of a Court, and in the sight and hearing of numbers.” (LC, RG 59, Domestic Letters of the Department of State, Vol. 8, December 6, 1794–October 12, 1795, National Archives.)
20. On the back of this document H wrote:
|“lower Town of Niagara|
|Stedmans Carrying place|
|14 miles in length|
|20 or 40 houses in town|
|2 or 3000 souls.”|
Philip Stedman was a contractor for the transport of goods over the Niagara portage.