The Defence No. XIX1
[New York, October 14, 1795]
The objects protected by the 10th. article2 are classed under four heads, 1 debts of individuals to individuals 2 property of individuals in the public funds 3 property of individuals in public banks 4 property of individuals in private banks. These, if analised, resolve themselves, in principle, into two discriminations—(viz) private debts & private property in public funds. The character of private property prevails throughout. No property of either Government is protected from confiscation or sequestration by the other. This last circumstance merits attention, because it marks the true boundary.
The propriety of the stipulation will be examined under these several aspects—the right to confiscate or sequester private debts or private property in public funds on the ground of reason and principle—the right, as depending on the opinions of jurists and on usage—the policy and expediency of the practice—the analogy of the stipulation with stipulations in our other treaties—and in treaties between other Nations.
First, as to the right on the ground of reason and principle.
The general proposition on which it is supported is this—“That every individual of a nation with whom we are at war wheresoever he may be is our enemy and his property of every kind and in every place liable to capture by right of War.”
The only exception admitted to this rule respects property within the jurisdiction of a Neutral State; but the exemption is referred to the right of the neutral nation not to any privilege which the situation gives to the enemy Proprietor.
Reason, if consulted, will dictate another exception. This regards all such property as the laws of a country permit foreigners to acquire within it, or to bring into it.3 The right of holding or having property in a country always implies a duty on the part of its Government to protect that property and to secure to the owner the full enjoyment of it. Whenever therefore a Government grants permission to foreigners to acquire property within its territories or to bring & deposit it there, it tacitly promises protection and security. It must be understood to engage, that the foreign proprietor, as to what he shall have acquired or deposited, shall enjoy the rights privileges and immunities of a native proprietor—without any other exceptions than those which the established laws may have previously declared. How can any thing else be understood? Every state, when it has entered into no contrary engagement, is free to permit or not to permit foreigners to acquire or bring property within its jurisdiction, but if it grant the right, what is there to make the tenure of the foreigner different from that of the native, if antecedent laws have not pronounced a difference? Property as it exists in civilized Society, if not a creature of, is at least regulated and defined by, the laws. They prescribe the manner in which it shall be used, alienated, or transmitted—the conditions upon which it may be held preserved or forfieted. Tis to them we are to look for its rights limitations and conditions. No condition of enjoyment, no cause of forfieture, which they have not specified can be presumed to exist. An extraordinary discretion to resume or take away the thing, without any personal fault of the proprietor is inconsistent with the notion of property. This seems always to imply a contract between the Society and the individual, that he shall retain and be protected in the possession and use of his property so long as he shall observe and perform the condition, which the laws have annexed to the tenure. It is neither natural nor equitable to consider him as subject to be deprived of it for a cause foreign to himself especially for one which may depend on the volition or pleasure even of the very government to whose protection it has been confided: For the proposition, which affirms the right to confiscate or sequester, does not distinguish between offensive or defensive war, between a war of ambition on the part of the power which exercises the right or a war of self preservation against the assaults of another.
The property of a foreigner placed in another country by permission of its laws may justly be regarded as a deposit, of which the Society is the Trustee. How can it be reconciled with the idea of a trust to take the property from him when he has personally given no cause for the deprivation?
Suppose two families in a state of nature, and that a member of one of them had by permission of the head of the other placed in his custody some article belonging to himself—and suppose a quarrel to ensue between the two heads of famil⟨ies⟩ in which the member had not participated by his immediate counsel or consent. Would not natural Equity declare the seizure and confiscation of the deposited property to be an act of perfidious rapacity?
Again—Suppose two neighbouring nations, which had not had intercourse with each other, and that one of them opens its ports and territories for the purpose of commerce to the Citizens of the other, proclaiming free and safe ingress and egress—suppose afterwards a war to break out between the two nations and the one, which had granted that permission to seize and convert to its own use the goods and credits of the Merchants of the other within its dominion. What sentence would Natural Reason, unwarped by particular dogmas, pronounce on such conduct? If we abstract ourselves from extraneous impressions, and consult a genuine moral feeling, we shall not doubt that the sentence would inflict all the opprobrium and infamy of violated faith?
Nor can we distinguish either case in principle from that which constantly takes place between nations that permit a commercial intercourse with each other whether with or without national compact. They equally grant a right to bring into and carry out of their territories the property which is the subject of the intercourse, a right of free and secure ingress and egress, and in doing this they make their territories a sanctuary or asylum which ought to be inviolable, and which the spirit of plunder only could have ever violated.
There is no parity between the case of the persons and goods of enemies found in our own country, and that of the persons and goods of enemies found elsewhere. In the former, there is a reliance upon our hospitality and justice, there is an express or an implied safe conduct, the individuals and their property are in the custody of our faith, they have no power to resist our will—they can lawfully make no defence against our violence—they are deemed to owe a temporary allegiance, and for endeavouring resistance would be punished as criminals; ⟨a cha⟩racter inconsistent with that of [an] enemy. To make them a prey is therefore to infringe every rule of generosity and equity—it is to add cowardice to treachery. In the latter case, there is no confidence whatever reposed in us—no claim upon our hospitality, justice, or good faith—there is the simple character of enemy, with intire liberty to oppose force to force. The right of war consequently to attack and seize whether to obtain indemnification for an injury received—to disable our enemy from doing us further harm—to force him to reasonable terms of accommodation—or to repress an overbearing ambition—exists in full vigour—unrestrained and unqualfieid by any trust or duty on our part. In pursuing it though we may inflict hardships, we do not commit injustice.
Moreover: the property of the foreigner within our country may be regarded as having paid a valuable consideration for its protection and exemption from forfieture. That which is brought in commonly enriches the Revenue by a duty of entry. All that is within our territory, whether acquired there or brought there, is liable to contributions to the Treasury in common with other similar property. Does there not result an obligation to protect that which contributes to the expence of its protection? Will Justice sanction, upon the breaking out of a War, the confiscation of a property, which during peace serves to augment the resources and nourish the prosperity of a State?
The principle of the proposition gives an equal right to subject the person as the property of the foreigner to the rigours of War. But What would be thought of a Government which should seize all the subjects of its enemy found within its territory and commit them to durance as prisoners of War? Would not all agree that it had violated an asylum which ought to have been sacred, that it had trampled upon the laws of hospitality and civilization that it had disgraced itself by an act of cruelty and barbarism? * Why would it not be equally reprehensible to violate the asylum which had been given to the property of those foreigners?
Reason left to its own lights would answer all these questions in one way, and would severely condemn the molestation on account of a national Contest as well of the property as person of a foreigner found in our country, under the permission and guarantee of the laws of previous amity.
The case of property in the public funds is still stronger than that of private debts.4 To all the sanctions which apply to the latter it adds that of an express pledge of the public faith to the foreign holder of Stock. The constituting of a public debt or fund, transferrable without limitation or distinction, amounts to a promise to all the world, that whoever, foreigner or citizen, may acquire a title to it, shall enjoy the benefit of what is stipulated. Every transferree becomes by the act of transfer the immediate proprietor of the promise. It enures directly to his use, and the foreign promisee no more than the native can be deprived of that benefit, except in consequence of some act of his own, without the infraction of a positive engagement.
Public debt has been truly defined “A property subsisting in the faith of Government.” Its essence is promise.5 To confiscate or sequester it is emphatically to rescind the promise given, to revoke the faith plighted. It is impossible to separate the two ideas of a breach of faith, and the confiscation or sequestration of a property subsisting only in the faith of the Government by which it is made.
When it is considered that the promise made to the foreigner is not made to him in the capacity of member of another Society, but in that of citizen of the world, or of an individual in a state of nature—the infraction of it towards him, on account of the fault real or pretended of the Society to which he belongs, is the more obviously destitute of colour. There is no real affinity between the motive and the consequence. There is a confounding of relations. The obligation of a contract can only be avoided by the breach of a condition express or implied, which appears or can be presumed to have been within the contemplation of both parties or by the personal fault or crime of him to whom it is to be performed. Can it be supposed that a citizen of one Country would lend his money to the Government of another, in the expectation that a war between the two countries, which without or against his will might break out the next day, could be deemed a sufficient cause of forfieture?
The principle may be tested in another way. Suppose one Government indebted to another in a certain sum of money and Suppose the creditor Government to borrow of a citizen of the other a less sum of money. When he came to demand payment, would justice, would good faith permit the opposing to his claim by way of set off the debt due from his Government? Who would not revolt at such an attempt? Could not the individual Creditor answer with conclusive force that in a matter of contract he was not responsible for the Society of which he was a member and that the debts of the Society were not a proper set off against his private claim?
With what greater reason could his claim be refused on account of an injury which was a cause of War received from his sovereign, and which had created on the part of the sovereign a debt of reparation? It were certainly more natural and just to set off a debt due by contract to the citizen of a foreign Country against a debt due by contract from the sovereign of that country—than to set it off against a claim of indemnification for an injury or aggression of which we complain, and of which the reality or justice is seldom undisputed on the other side.
The true Rule which results from what has been said, and which reason sanctions, with regard to the right of capture is this “It may be exercised every where except within a neutral jurisdiction* or where the property is under the protection of our own laws”7 and it may perhaps be added that it always supposes the possibility of rightful combat—of attack and defence—These exceptions involve8 [no refinement—they depend on obvious considerations, and are agreeable to common sense and to nature—the spontaneous feelings of equity accord with them. It is indeed astonishing that a contrary rule should have been countenanced by the opinion of any jurist, or by the practice of any civilized nation.
We shall see in the next number how far either has been the case, and what influence it ought to have upon the question. Camillus.]
ADf, Hamilton Papers, Library of Congress; The [New York] Argus, or Greenleaf’s New Daily Advertiser, October 14, 1795.
1. For background to this document, see the introductory note to “The Defence No. I,” July 22, 1795.
2. For the text of Article 10 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 48. See also “The Defence No. XVIII,” October 6, 1795.
4. For H’s views on this subject, see “Report on a Plan for the Further Support of Public Credit,” January 16, 1795.
5. H took these two sentences from the concluding section of “Report on a Plan for the Further Support of Public Credit,” January 16, 1795.
6. This footnote, which is not in the extant portion of the MS, has been taken from the newspaper.
8. The last page of the draft has not been found. The remaining material within brackets has been taken from the newspaper.