The Defence No. XVIII1
[New York, October 6, 1795]
It is provided by The tenth article of the Treaty that “Neither Debts due from individuals of the one Nation to Individuals of the other, nor shares nor monies, which they may have in the public funds, or in the public or private banks, shall ever in any event of War or national differences be sequestered or confiscated, it being unjust and impolitic that debts and engagements contracted and made by individuals having confidence in each other and in their respective Governments should ever be destroyed or impaired by national authority on account of National Differences and Discontents.”
The virulence with which this article has been attacked2 cannot fail to excite very painful sensations in every mind duly impressed with the sanctity of public faith and with the importance of national credit and character; at the same time that it furnishes the most cogent reasons to desire that the preservation of peace may obviate the pretext and the temptation to sully the honor and wound the interests of the country by a measure which the truly enlightened of every nation would condemn.
I acknowlege without reserve that in proportion to the vehemence of the opposition against this part of the Treaty is the satisfaction,3 I derive from its existence; as an obstacle the more to the perpretation, of a thing which in my opinion besides deeply injuring our real and permanent interest would cover us with ignominy. No powers of language at my command can express the abhorrence I feel at the idea of violating the property of individuals which in an authorised intercourse in time of peace has been confided to the faith of our Government and Laws, on account of controversies between Nation and Nation. In my view Every moral and every political sentiment unite to consign it to execration.
Neither will I dissemble that the dread of the effects of the spirit which patronises that idea has ever been with me one of the most persuasive arguments for a pacific policy on the part of the UStates. Serious as the evil of War has appeared at the present stage of our affairs the manner in which it was to be apprehended it might be carried on was still more formidable than the thing itself. It was to be feared that in the fermentation of certain wild opinions, those wise just & temperate maxims which will for ever constitute the true security & felicity of a state would be overruled & that a war upon credit, eventually upon property and upon the general principles of public order might aggravate and embitter the ordinary calamities of foreign war. The confiscation of debts due to the enemy might have been the first step of this destructive process. From one violation of justice to another the passage is easy. Invasions of right still more fatal to credit might have followed, & this by extinguishing the resources which that could have affarded might have paved the way to more comprehensive & more enormous depredations for a substitute. Terrible examples were before us and there were too many not sufficiently remote from a disposition to admire and imitate them.
The earnest and extensive clamours against the part of the Treaty under consideration confirm that anticipation, and while they enhance the merit of the provision, they also inspire a wish that some more effectual barrier had been erected against the possibility of a contrary practice ever being at any ill fated moment obtruded upon our public Councils. It would have been an inestimable gem in our national constitution had it contained a positive prohibition against such a practice;4 except perhaps by way of reprisal for the identical injury on the part of another Nation.
Analagous to this is that liberal and excellent provision in the5 British Magna Charta which declares that * “if the Merchants of a Country at war with England are found there in the beginning of the War, they shall be attached without harm of body or effects, till it is known in what manner English Merchants are treated in the enemy Country; and if they are safe that the foreign Merchants shall also be safe.” The learned Coke pronounces this to be the jus belli or law of War:6 And the elegant and enlightened Montesquieu speaking of the same provision breaks out into this exclamation(b)— “It is noble that the English Nation have made this one of the articles of its Liberty.” How much is it to be regretted that our Magna Charta is not unequivocally decorated with a like feature; and that in this instance we who have given so many splendid examples to mankind are excelled in constitutional precaution for the maintenance of Justice.
There is indeed ground to assert that the contrary principle would be repugnant to that article of our constitution which provides that “No state shall pass any law impairing the obligation of Contracts.” The spirit of this clause though the letter of it be restricted to the States individually must on fair construction be considered as a rule for the UStates and if so could not easily be reconciled with the confiscation or sequestration of private debts in time of war. But it is a pity that so important a principle should have been left to inference & implication and should not have received an express and direct sanction.
This position must appear a frightful heresy in the eyes of those who represent the confiscation or sequestration of Debts as our best means of retaliation and coertion, as our most powerful, sometimes as our only weapon of defence.
But so degrading an idea will be rejected with disdain by every man who feels a true and well informed national pride, by every man who recollects and glories that in a state of still greater immaturity we atchieved independence without the aid of this dishonorable expedient;*8 that even in a revolutionary War a war of Liberty against usurpation our national Councils were never provoked or tempted to depart so widely from the path of rectitude by every man who though careful not to exaggerate for rash and extravagant projects can nevertheless fairly estimate the real resources of the Country for meeting dangers which prudence cannot avert.
Such a man will never endure the base doctrine that our security is to depend on the tricks of a Swindler. He will look for it in the courage and constancy of a free brave and virtuous people—in the riches of a fertile soil—an extended and progressive industry—in the wisdom and energy of a well constituted & well administered Government—in the resources of a solid, if well supported, national Credit—in the armies which if requisite could be raised—in the means of maritime annoyance which if necessary we could be organised and with which we could inflict deep wounds on the commerce of a hostile nation. He will indulge an animating consciousness, that while our situation is not such as to justify our courting imprudent enterprises, neither is it such as to oblige us in any event to stoop to dishonorable means of security or to substitute a crooked and piratical policy for the manly energies of fair and open war.
What is the consequence of the favourite doctrine that The confiscation or sequestration of private Debts is our most powerful if not our only weapon of defence? Great Britain is the only Power against whom we could wield it; since tis to her citizens alone that ours are largely indebted. What are we to do then against any other Nation which might think fit to menace us? Are we for want of adequate means of defence to crouch beneath the uplifted rod and sue for mercy? Or has providence guaranteed us specially against the malice or ambition of every power on earth but Great Britain?
Tis at once curious & instructive to mark the inconsistencies of the disorganising sect. Is the question to discard a spirit of accommodation and seek war with Great Britain? Columns are filled with the most absurd exaggerations to prove that we are able to meet her not only on equal but upon superior terms. Is the question—Whether a stipulation against the confiscation or sequestration of private debts ought to have been admitted into the Treaty? Then are we a people destitute of the means of war—with neither armies fleets nor magazines—then is our best if not our only weapon of defence—the power of confiscating or sequestrating the debts which are due to the subjects of Great Britain—in other words the power of committing fraud of violating public faith of sacrificing the principles of commerce of prostrating Credit.
Is the question—whether free ships shall make free goods, whether naval stores shall or shall not be deemed contraband? Then the appeal is to what is called the modern law of Nations then is the cry that recent usage has changed and mitigated the rigor of ancient maxims. But is the question whether private debts can be rightfully confiscated or sequestered? Then the utmost rigour of the ancient doctrine is to govern and modern usage and opinion are to be discarded. The old rule or the new is to be adopted or rejected just as may suit our convenience.
An inconsistency of another kind but no less curious is observable in a position, repeatedly heared from the same quarter, namely that the sequestration of Debts is the only peaceable mean of doing ourselves justice and avoiding war. If we trace the origin of the pretended right to confiscate or sequester Debts—We find it & that in the very authority principally relied upon to prove it to be this—(Bynkershoek Questiones Juris Publici10 L I C II) “Since it is the condition of War that Enemies may be deprived of all their rights, it is reasonable that every thing of an enemy’s found among his enemies should change its owner and go to the Treasury.” Hence it is manifest that the right itself, if it exists, presupposes as the condition of its exercise an actual state of War and the relation of enemy to enemy. Yet we are fastidiously told that this high and explicit act of war, is a peaceable mean of doing ourselves justice and avoiding war. Why are we thus told—Why is this strange paradox attempted to be imposed upon us—Why but that it is the policy of the conspirators against our peace to endeavour to disguise the hostilities into which they wish to plunge us with a specious outside and to precipitate us down the precipice of War while we imagine we are quietly and securely walking along its summit.
Away with these absurd and degrading sophisms. Blush ye Apostles of temerity of meaness & Deception. Cease to beckon us to war and at the same to freeze our courage by the cowardly declaration that we have no resource but in fraud. Cease to attempt to persuade us that peace may be maintained by means which constitute War. Cease to tell us that War is preferable to dishonor; and yet as our first step urge us into irretrievable dishonor. A magnanimous a sensible people cannot listen to your crude lessons. Why will ye persevere in accumulating ridicule and contempt upon your own heads?
In the further observations which I shall offer on this article11 I hope to satisfy not ye but all discerning men and good citizens that instead of being a blemish, it is an ornament to the instrument in which it is contained; that it is as consistent with true policy as with substantial justice12 & that the objections to it are futile.13
ADf, Hamilton Papers, Library of Congress; The [New York] Argus, or Greenleaf’s New Daily Advertiser, October 6, 1795.
1. For background to this document, see the introductory note to “The Defence No. I,” July 22, 1795.
2. For examples of criticism of Article 10 of the Jay Treaty, see Alexander J. Dallas’s “Features of Jay’s Treaty” (Dunlap and Clay poole’s [Philadelphia] American Daily Advertiser, July 18, 1795) and the article by “Decius” (Brockholst Livingston) in The [New York] Argus, or Greenleaf’s New Daily Advertiser, July 13, 1795. For the authorship of these articles, see the introductory note to “The Defence No. I,” July 22, 1795.
3. At this point in the draft H wrote and then crossed out the following: “... is my satisfaction (which gives greater cause than I had imagined to suppose it possible that a conduct contrary to the principle it contains might be obtruded in our public Councils).”
4. H originally wrote this sentence as follows: “… prohibition against the forfeiture or seizure of any property which strangers in an authorised intercourse in time of peace had committed to the faith of our Government and laws.”
5. At this point in the draft H wrote and crossed out the following; “The cause, which is given by the clamours against the prohibition in the Treaty, to suspect it possible that a practice contrary to the principle of it might at some inauspicious moment be obtruded on our public Councils is of a nature not only to reconcile us the more to that provision but to inspire a strong wish that our Constitution had opposed a perpetual bar to a practice inconsistent with it—except perhaps towards us on the part of another Nation. In this sense Montesquieu understands that the clause of the British Magna Charta…”
6. This is taken from Coke’s commentary on Chapter 30 of the Magna Charta, which reads: “Now touching Merchant Strangers, whose Sovereign is in War with the King of England.
“There is an exception, and provision for such, as be found in the Realm at the beginning of the War, they shall be attached with a priviledge and limitation, Viz. without harm of body, or goods, with this limitation, until it be known to us, or our Chief Justice (that is our Gardian, or keeper of the Realm in our absence) how our Merchants there in the Land in War with us shall be intreated, and if our Merchants be well intreated there, theirs shall be likewise with us, and this is jus belli. Et in republica maxime conservanda sunt jura belli.
“But for such Merchant strangers as come into the Realm after the War beginn, they may be dealt withall as open enemies: and yet of ancient time three men had priviledge granted them in time of War. Clericus, Agricola, & mercator, tempori belli. Ut oretq; colat, commutet, pace fruuntur.” (Sir Edward Coke, The Second Part of the Institutes of the Laws of England: Containing The Exposition of many ancient, and other Statutes, Whereof you may see the particulars in a Table following [London: Printed by W. Rawlins, for Thomas Basset at the George near St. Dunstan’s Church in Fleet-street, 1681], 57–58.)
7. Charles Louis de Secondat, Baron de La Bréde et de Montesquieu, De l’esprit des loix, ou Du rapport que les loix doivent avoir avec la constitution de chaque gouvernement, les moeurs, le climat, la religion, le commerce, &c, à quoi l’auteur a ajouté des recherches nouvelles, sur les loix romaines touchant les successions, sur les loix françoises, et sur les loix feodales (Geneva: Barrillot & Fils, 1748).
8. At this point H wrote and then crossed out the following insertion: “while with one breath they march us to war with Great Britain on the ground that we can meet her on terms not only of equal but of superior advantage in another.”
10. Bynkershoek, Quæstionum description begins Cornelius van Bynkershoek, Quæstionum Juris Publici Libri Duo. The Translation by Tenney Frank (Oxford and London, 1930). description ends . The reference is to Chanter VII (not Chapter II), Sec. 52.
12. In the newspaper this sentence ends with the following: “that it is in substance, not without precedent in our other treaties, and that the objections to it are futile.”
13. In the margin opposite the end of the paragraph H wrote and crossed out: “note zeal for confiscation one of the greatest objections to War.”