Answers to Questions proposed by the President of the United States to the Secretary of the Treasury.1
New York September 15. 1790
Question the first
“What should be the answer of the Executive of the United States to Lord Dorchester, in case he should apply for permission to march troops through the territory of said States from Detroit to the Mississippi?”
In order to a right judgment of what ought to be done in such case, it may be of use previously to consider the following points.
First. Whether there be a right to refuse or consent, as shall be thought most for the interest of the United States.
Secondly. The consequences to be expected from refusal or consent.
Thirdly. The motives to the one or to the other.
As to the first point, if it were to be determined upon principle only, without regard to precedents, or opinions, there would seem to be no room for hesitation about the right to refuse. The exc[l]usive jurisdiction which every independent Nation has over its own territory appears to involve in it the right of prohibiting to all others the use of that territory in any way disagreeable to itself, and more especially for any purpose of war, which always implies a degree of danger and inconvenience: with the exception only of cases of necessity.
And if the United States were in a condition to do it without material hazard, there would be strong inducements to their adopting it as a general rule never to grant a passage for a voluntary expedition of one power against another, unless obliged to it by treaty.
But the present situation of the United States is too little favourable to encountering hazards, to authorise attempts to establish rules, however eligible in themselves, which are repugnant to the received maxims or usages of Nations.
It is therefore necessary to inquire what those maxims or usages enjoin in the case suggested.
With regard to usage it has been far from uniform. There are various instances in ancient and modern times of similar permissions being demanded; many in which they have been granted; others in which they have been refused and the refusal acquiesced in; but perhaps more in which, when refused, a passage has been forced—and the doing it has often been deemed justifiable.
Opinions are not more harmonious. Among those who may be considered as authorities on such subjects, Puffendorf2 and Barbeyrac3 confine within narrow limits the right of passage through neutral territories; while Grotius4 and Vatel,5 particularly the former, allow to it greater latitude. Puffendorf treats it not as a natural right but as derived from compact or concession; especially when the enemy of a neighbouring state desires leave to march troops through a neutral Country against its neighbour. For it seems (says he) to be a part of the duty which we owe to our neighbours, especially such as have been kind and friendly, not to suffer any hostile power to march through our Country to their prejudice; provided we can hinder the design with no great inconvenience to ourselves. And as it may have a tendency to make our own Country the theatre of the war (since the power intended to be attacked may justifiably march within our limits to meet the approaching enemy) he concludes that it is the safest way of acting in such case, if we can do it, without any considerable prejudice to our own affairs to deny the enemy passage, and actually to oppose him, if he endeavour to force it without our consent. But if we are either too weak to hinder his progress or must on this score engage in a dangerous war, he admits, that the plea of necessity will fairly justify us to our neighbour.
Examples, he adds, have little force in the decision of this question. For, generally, as people have been stronger or weaker, they have required passage with modesty or with confidence, and have in like manner granted or refused it to others.6
Barbeyrac in his commentary on Grotius is still stronger against the right of passage.7 He affirms that even though we have nothing to apprehend from those who desire a passage, we are not therefore obliged in rigour to grant it. It necessarily follows (says he) from the right of property, that the proprietor may refuse another the use of his goods. Humanity indeed requires that he should grant that use to those who stand in need of it, when it can be done without any considerable inconvenience to himself; but if he even then refuses it, though he transgresses his duty, he does them no wrong, properly so called; except they are in extreme necessity, which is superior to all ordinary rules. Thus far and no further extends the reserve with which it is supposed the establishment of property is accompanied.
Grotius on the other hand, expresses himself thus8—A free passage ought to be granted to persons where just occasion shall require, over any lands or rivers, or such parts of the sea as belong to any nation; and after enumerating several examples in support of his position, he concludes that the middle opinion is best, to wit, that the liberty of passing ought first to be demanded, and if denied may be claimed by force. Neither (says he) can it be reasonably objected that there may be suspicion of danger from the passing of a multitude; for one man’s right is not diminished by another man’s fear. Nor is the fear of provoking that prince against whom he that desires to pass is engaged in a just war, a sufficient reason for refusing him passage. Nor is it any more an excuse that he may pass another way; for this is what every body may equally allege, and so this right of passing would be entirely destroyed. But ’tis enough that the passage be requested without any fraud or ill design, by the nearest and most convenient way. If indeed, he who desires to pass undertakes an unjust war, or if he brings people who are my enemies along with him, I may deny him a passage; for in this case I have a right to meet and oppose him, even in his own land, and to intercept his march. Thus it would seem to be the opinion of Grotius that a party engaged in a just war has a right, of course, to a passage through a neutral territory, which can scarcely, if at all, be denied him, even on the score of danger or inconvenience to the party required to grant it.
But Vatel, perhaps the most accurate and approved of the writers on the laws of Nations, preserves a mean between these different opinions. This is the sum of what he advances—9
“That an innocent passage is due to all nations, with whom a state is at peace, for troops equally with individuals; and to annoy as well as to avoid an enemy. That the party asking and the party asked are both, in different degrees, judges of the question when innocent? That where the party asked has good reasons for refusing, he is not under any obligation to grant, and in doubtful cases his judgment ought to be definitive; but in evident ones, or those in which the harmlessness of the passage is manifest, the party asking may, in the last resort, judge for himself, and after demand and refusal may force his way. That, nevertheless, as it is very difficult for the passage of a powerful army to be absolutely innocent, and still more difficult for its innocence to be apparent, a refusal ought to be submitted to, except in those very rare cases, when it can be shewn in the most palpable manner, that the passage required is absolutely without danger or inconvenience. And lastly that this right of passage is only due in a war not manifestly unjust.[”]
Perhaps the only inference to be drawn from all this is, that there exists in the practice of nations and the dogmas of political writers a certain vague pretension to a right of passage in particular cases, and according to circumstances, which is sufficient to afford to the strong a pretext for claiming and exercising it, when it suits their interests, and to render it always dangerous to the weak to refuse, and, sometimes not less so, to grant it.
It is, nevertheless, a proper inquiry, whether a refusal could be placed on such ground as would give no reasonable cause of umbrage to the party refused, and as in the eye of the world would justify it.
Against the propriety of a refusal are the following circumstances; that there is no connection between us and Spain, which obliges us to it: That the passage asked will be down rivers, and for the most part through an uninhabited wilderness; whence no injury to our citizens or settlements will be to be apprehended: And that the number of troops to be marched, especially considering the route, will probably not be such as on their own account, to be a serious cause of alarm. These circumstances may give our refusal the complexion of partiality to Spain and of indisposition towards Britain, which may be represented as a deviation from the spirit of exact neutrality.
In support of the propriety of a refusal, the following is the only assignable reason: That it is safer for us to have two powerful, but rival nations, bordering upon our two extremities; than to have one powerful nation pressing us on both sides and in capacity, hereafter, by posts and settlements, to invelop our whole interior frontier.
The good offices of Spain in the late war; the danger of the seduction of our Western inhabitants; the probable consequences to the trade of the Atlantic States; are considerations rather to be contemplated, as motives, than alleged, as reasons.
The first reason, however, is of a nature to satisfy the mind of the justice of a refusal; admitting the authority of more moderate opinions, which have been cited. And the danger, too, upon the supposition of which it is founded, appears to be obvious enough, to vindicate it in the opinion of the disinterested part of Mankind; little likely as it may be to engage the acquiescence of the party whose wishes would be thwarted by the refusal. It deserves notwithstanding to be noticed on this point, that the ground of dissent would not result from the thing itself, that is the mere passage, but from the nature of the acquisition, to which it would give facility—This circumstance may somewhat obscure the clearness of the conclusion that there is a perfect right to refuse.
But upon the whole there does not appear to be room enough for a scruple about the right, to deter from refusal, if upon examination it shall be found expedient.
Does the right of consenting to the passage stand upon ground equally unexceptionable?
This question Vatel answers in the following manner10—“When I have no reason to refuse the passage, the party against whom it is granted has no room for complaint, much less for making it a pretence for war; since I did no more than what the law of nations enjoins. Neither has he any right to require, that I should deny the passage, because he is not to hinder me from doing what I think is agreeable to my duty, and even on occasion when I might with justice deny the passage, it is allowable in me not to make use of my right; especially when I should be obliged to support my refusal by my sword. Who will take upon him to complain of my having permitted the war to be carried into his own country rather than draw it on myself? It cannot be expected, that I should take up arms in his favour, unless obliged to it by a Treaty.” And Puffendorff admits, as has been before noted, that if we are either too weak to hinder his progress or must on that score engage in a dangerous war, the plea of necessity will fairly justify us to our neighbour.
Nothing need be added to reasoning so perspicuous and convincing. It does not admit of a moment’s doubt as a general rule that a neutral state, unfettered by any stipulation, is not bound to expose itself to a war, merely to shelter a neighbour from the approaches of its enemy. It remains to examine if there are any circumstances, in our particular case, capable of forming an exception to that rule.
It is not to be forgotten that we received from France, in our late revolution, essential succour, and from Spain valuable countenance, and some direct aid. It is also to be remembered that France is the intimate ally of Spain, and that there subsists a connection by treaty between the former power and the United States.
It might thence be alleged that obligations of Gratitude towards those powers require that we should run some risk, rather than concur in a thing prejudicial to either of them, and particularly in favour of that very nation against which they assisted us. And the natural impulse of every good heart will second the proposition, ’till reason has taught it, that refinements of this kind are to be indulged with caution, in the affairs of Nations.
Gratitude is a word the very sound of which imposes something like respect. Where there is even an appearance upon which the claim to it can be founded, it can seldom be a pleasing task to dispute that claim. But where a word may become the basis of a political system, affecting the essential interests of the state, it is incumbent upon those who have any concern in the public administration, to appreciate its true import and application.
It is necessary then to reflect, however painful the reflection, that gratitude is a duty or sentiment which between nations can rarely have any solid foundation. Gratitude is only due to a kindness or service, the predominant object of which is the interest or benefit of the party to whom it is performed. Where the interest or benefit of the party performing is the predominant cause of it, however there may result a debt, in cases in which there is not an immediate adequate and reciprocal advantage, there can be no room for the sentiment of gratitude. Where there is such an advantage there is then not even a debt. If the motive to the act, instead of being the benefit of the party to whom it is done, should be a compound of the interest of the party doing it and of detriment to some other, of whom he is the enemy or the rival, there is still less room for so noble and refined a sentiment. This analysis will serve as a test of our true situation, in regard both to France and Spain.
It is not to be doubted that the part which the Courts of France and Spain took in our quarrel with Great Britain is to be attributed, not to an attachment to our independence or liberty, but to a desire of diminishing the power of Great Britain by severing the British empire. This they considered as an interest of very great magnitude to them. In this their calculations and their passions conspired. For this, they united their arms with ours and encountered the expences and perils of war. This has been accomplished; the advantages of it are mutual; and so far the account is ballanced.
In the progress of the war11 they lent us money, as necessary to its success, and during our inability to pay they have foreborn to press us for it. The money we ought to exert ourselves to repay with interest, and as well for the loan of it, as for the forbearance to urge the repayment of the sums, which have become due, we ought always to be ready to make proportionate acknowlegements and, when opportunities shall offer returns answerable to the nature of the service.
Let it be added to this, that the conduct of France in the manner of affording her aid bore the marks of a liberal policy. She did not endeavour to extort from us, as the price of it, any disadvantageous or humiliating concessions. In this respect, however, she may have been influenced by an enlightened view of her own interest, she intitled herself to our esteem and good will. These dispositions towards her ought to be cherished and cultivated but they are very distinct from a spirit of romantic gratitude calling for sacrifices of our substantial interests; preferences inconsistent with sound policy; or complaisances incompatible with our safety.
The conduct of Spain towards us presents a picture far less favourable. The direct aid we received from her during the war was inconsiderable in itself, and still more inconsiderable compared with her faculty of aiding us. She refrained from acknowleging our independence—has never acceded to the Treaty of Commerce made with France, though a right of doing it was reserved to her, nor made any other Treaty with us.12 She perseveringly obstructs our sharing in the navigation of the Mississippi; though it is a privilege essential to us, and to which we consider ourselves as having an indisputable title. And perhaps it might be added upon good13
Spain therefore must be regarded upon the whole as having slender claims to peculiar good will from us. There is certainly nothing that authorises her to expect we should expose ourselves to any extraordinary jeopardy for her sake. And to conceive that any considerations relative to France ought to be extended to her would be to set up a doctrine altogether new in politics. The ally of our ally has no claim, as such, to our friendship. We may have substantial grounds of dissatisfaction against him, and act in consequence of them, even to open hostility, without derogating in any degree from what we owe to our ally.
This is so true, that if a war should really ensue between Great Britain and Spain, and if the latter should persist in excluding us from the Mississippi (taking it for granted our claim to share in its navigation is well founded) there can be no reasonable ground of doubt that we should be at liberty, if we thought it our interest, consistently with our present engagements with France, to join Britain against Spain.
How far it might be expedient to place ourselves in a situation which in case France should eventually become a party in the war, might entangle us in opposite duties on the score of the stipulated guarantee of her West India possessions, or might have a tendency to embroil us with her, would be a mere question of prudential and liberal calculation, which would have nothing to do with the right of taking side against Spain.
These are truths necessary to be contemplated with freedom, because it is impossible to foresee what events may spring up, or whither our interests may point; and it is very important to distinguish with accuracy, how far we are bound, and where we are free.
However vague the obligations of gratitude may be between Nations, those of good faith are precise and determinate. Within their true limits, they can hardly be held too sacred. But by exagerating them, or giving them a fanciful extension, they would be in danger of losing their just force. This would be converting them into fetters, which a nation would ere long become impatient to break, as consistent neither with its prosperity, nor its safety. Hence while it is desireable to maintain with fidelity our engagements to France, it is adviseable on all occasions to be aware, that they oblige us to nothing towards Spain.
From this view of the subject there does not appear any circumstance in our case capable of forming an exception to the general rule; and as it is certain that there can hardly be a situation less adapted to war than that in which we now find ourselves, we can with the greatest sincerity offer the most satisfactory excuse to Spain for not witholding our consent if our own interests do not decide us to a contrary course.14
The consequences to be expected from refusal or consent present themselves next to consideration. Those of consent shall be first examined.
An increase of the means of annoying us, in the same hands is a certain ill consequence of the acquisition of the Floridas and Louisiana by the British. This will result not only from contiguity to a greater part of our territory but from the increased facility of acquiring an undivided influence over all the Indian tribes inhabiting within the borders of the United States.
Additional danger of the dismemberment of the Western Country is another ill consequence to be apprehended from that acquisition. This will arise as well from the greater power of annoying us, as from the different policy, which it is likely would be pursued by that nation, if in possession of the key to the only outlet for the productions of that Country. Instead of shutting, they would probably open the door to its inhabitants, and by conciliating their good will on the one hand, and making them sensible on the other of their dependence on them for the continuance of so essential an advantage they might hold out to them the most powerful temptation to a desertion of their connection with the rest of the United States. The avarice and ambition of individuals may be made to cooperate in favour of these views.
A third ill consequence of that acquisition would be material injury in time to come to the Commerce of the Atlantic States. By rendering New Orleans the emporium of products of the Western Country, Britain would at a period, not very distant have little occasion for supplies of provisions for their Islands from the Atlantic States; and for their European Market they would derive from the same source copious supplies of Tobacco and other articles now furnished by the Southern States: Whence a great diminution of the motives to establish liberal terms of Commercial Intercourse with the United States collectively.
These consequences are all expressed or implied in the form of the Question stated by the President. And as far as our consent can be supposed likely to have influence upon the event they constitute powerful objections to giving it.
If even it should be taken for granted that our consent or refusal would have no influence either way, it would not even then cease to be disagreeable to concur in a thing apparently so inauspicious to our interests. And it deserves attention, that our concurrence might expose us to the imputation either of want of foresight to discover a danger or of vigour to withstand it.
But there is almost always in such cases a comparison of evils; and the point of prudence is to make choice of that course which threatens the fewest or the least, or sometimes the least certain. The consequences of refusal are therefore to be weighed against those of consent.
It seems to be a matter taken for granted by the writers upon the subject, that a refusal ought to be accompanied with a resolution to support it if necessary by the sword—or in other words, to oppose the passage, if attempted to be forced, or to resent the injury, if circumstances should not permit an effectual opposition. This indeed is implied in the nature of the thing; for to what purpose refuse, unless it be intended to make good the refusal? or how avoid disgrace, if our territories are suffered to be violated with impunity, after a formal and deliberate prohibition of passage?
There are cases in which a nation may without ignominy wink at infractions of its rights; but this does not appear to be one of them. After having been asked its permission and having refused it, the presumption will be that it has estimated the consequences, calculated its means, and is prepared to assert and uphold its rights. If the contrary of this should turn out to be its conduct, it must bring itself into contempt for inviting insult which it was unable to repel, and manifesting ill will towards a power whom it durst not resist. As on the one hand, there cannot be conceived to be a greater outrage than to pass through our country, in defiance of our declared disapprobation, so on the other there cannot be a greater humiliation than to submit to it.
The consequence therefore of refusal if not effectual must be absolute disgrace or immediate war. This appears at least to be the alternative.
Whether a refusal would have the desired effect is at best problematical. The presumption, perhaps, is, that Great Britain will have adverted to the possibility of it; and if under the uncertainty of what would be our conduct she should still have resolved on prosecuting the enterprise through our territory, that she will at the same time have resolved, either to ask no questions or to disregard our dissent. It is not unlikely, that the reasoning of the British Cabinet will have been to this effect—If the United States have no predilection for Spain, or if their views of their own interest are not opposed to the acquisition we meditate, they will not withold their consent; if either the one, or the other be the case, it ought to be determined before hand, whether their enmity be a greater evil, than the projected acquisition, a good, and if we do not choose to renounce the one, we must be prepared to meet the other.
A further ill consequence of the refusal, if ineffectual, not wholly destituted of weight, is this, that Great Britain would then think herself under less obligation to keep measures with us and would feel herself more at liberty to employ every engine in her power to make her acquisition as prejudicial to us as possible; whereas, if no impediment should be thrown in the way by us, more good humour may beget greater moderation, and in the progress of things, concessions securing us may be made as the price of our future neutrality. An explicit recognition of our right to navigate the Mississippi to and from the Ocean with the possession of New Orleans, would greatly mitigate the causes of apprehension from the conquest of the Floridas by the British.
The consequences of refusal or consent constitute leading motives to the one or to the other; which now claim a more particular discussion.
It has been seen that the ill effects to be apprehended from the conquest of the Spanish territories in our neighbourhood, are an increase of the means, whereby we may be hereafter annoyed, and of the danger of the separation of the Western Country from the rest of the Union—and a future interference with the trade of the Atlantic States, in a manner too not conducive to the general weal.
As far as there is a prospect that a refusal would be an impediment to the enterprize, the considerations which have been mentioned afford the strongest inducements to it. But if that effect of it be doubtful, the force of these inducements is proportionably diminished; if improbable, it nearly ceases. The prospect in this case, would be that a refusal would aggravate instead of preventing the evil it was intended to obviate. And it must be acknowleged that the success of it is at least very doubtful.
The consideration that our assent may be construed into want of foresight or want of vigour, though not to be disregarded, would not be sufficient to justify our risking a war in our present situation. The cogent reasons we have to avoid a war are too obvious and intelligible; not to furnish an explanation of and an apology for our conduct in this respect.
Whatever may be the calculations with regard to the probable effect of a refusal, it ought to be predicated upon the supposition, that it may not be regarded, and accompanied with a determination to act as a proper attention to national dignity would in such an event dictate. This would be to make war.
For it is a sound maxim, that a state had better hazard any calamities than submit tamely to absolute disgrace.
Now it is manifest, that a Government scarcely ever had stronger motives to avoid war, than that of the United States, at the present juncture. They have much to dread from war; much to expect from peace; something to hope from negotiation, in case of a rupture between Britain and Spain.
We are but just recovering from the effects of a long arduous and exhausting war. The people but just begin to realise the sweets of repose. We are vulnerable both by water and land without either fleet or army. We have a considerable debt in proportion to the resources which the state of things permits the government to command. Measures have been recently entered upon for the restoration of credit, which a war could hardly fail to disconcert, and which if disturbed would be fatal to the means of prosecuting it. Our national government is in its infancy. The habits and dispositions of our people are ill suited to those liberal contributions to the treasury, which a war would necessarily exact. There are causes which render war in this country more expensive, and consequently more difficult to be carried on than in any other. There is a general disinclination to it in all classes. The theories of the speculative and the feelings of all are opposed to it. The support of public opinion (perhaps more essential to our government than to any other) could only be looked for in a war evidently resulting from necessity.
These are general reasons against going into war. There are others of a more particular kind. To the people at large the quarrel would be apt to have the appearance of having originated in a desire of shielding Spain from the arms of Britain. There are several classes of men to whom this idea would not be agreeable, especially if the Dutch were understood to be in conjunction with the British. All those who were not friendly to our late revolution would certainly dislike it. Most of the descendants of the Dutch would be unfriendly to it. And let it not be overlooked, that there is still a considerable proportion of those who were firm friends to the Revolution who retain prepossessions in favour of Englishmen, and prejudices against Spaniards.
In a popular government especially, however prejudices like these may be regretted, they are not to be excluded from political calculations.
It ought also to be taken into the account, that by placing ourselves at this time in a situation to go to war against Great Britain we embark with the weakest party—with a total uncertainty what accession of strength may be gained—and without making any terms, with regard either to succour, indemnity or compensation.
France is the only weight which can be thrown into the scale capable of producing an equilibrium. But her accession however probable ought not to be deemed absolutely certain. The predominant party there may choose to avoid war as dangerous to their own power. And if even obstacles should not arise from that quarter, it cannot be foreseen to what extent France will be in condition to make efforts. The great body of malcontents comprehending a large proportion of the most wealthy and formerly the most influential class; the prodigious innovations which have been made—the general and excessive fermentation which has been excited in the minds of the people, the character of the Prince, or the nature of the government likely to be instituted, as far as can be judged prior to an experiment, does not prognosticate much order or vigour in the affairs of that country for a considerable period to come.
It is possible indeed, that the enthusiasm which the transition from Slavery to Liberty may inspire, may be a substitute for the energy of a good administration, and the spring of great exertions. But the ebullitions of enthusiasm must ever be a precarious reliance. And it is quite as possible that the greatness, and perhaps immaturity, of that transition may prolong licentiousness and disorder. Calculations of what may happen in France must be unusually fallible; not merely from the yet unsettled state of things in that kingdom, but from the extreme violence of the change, which has been wrought in the situation of the people.
These considerations are additional admonitions to avoid as far as possible any step that may embroil us with Great Britain. It seems evidently our true policy to cultivate neutrality. This at least is the ground on which we ought to stand, until we can see more of the scene, and can have secured the means of changing it with advantage.
We have objects which in such a conjuncture are not to be neglected. The Western posts, on one side, and the navigation of the Mississippi, on the other, call for a vigilant attention to what is going on. They are both of importance. The securing of the latter may be regarded in its consequences as essential to the unity of the Empire.
But it is not impossible if war takes place, that by a judicious attention to favourable moments we may accomplish both, by negotiation. The moment however we became committed on either side the advantages of our position for negotiation would be gone. They would even be gone in respect to the party, with whom we were in cooperation; for being once in the war we could not make terms as the condition of entering into it.
Though it may be uncertain how long we shall be permitted to preserve our neutrality; that is not a sufficient reason for departing from it voluntarily. It is possible we may be permitted to persist in it throughout. And if we must renounce it, it is better it should be from necessity than choice; at least ’till we see a prospect of renouncing, with safety and profit. If the government is forced into a war, the chearful support of the people may be counted upon. If it brings it upon itself, it will have to struggle with their displeasure and reluctance. This difference alone is immense!
The desire of manifesting amity to Spain, from the supposition, that our permanent interest is concerned in cementing an intimate connection with France and Spain ought to have no influence in the case. Admitting the existence of such an interest, it ought not to hurry us into premature hazards. If it should finally induce us to become a party, it will be time enough, when France has become such and after we shall have adjusted the conditions, upon which we are to engage.
But the reality of such an interest is a thing about which the best and the ablest men of this country are far from being agreed. There are of this number, who, if the United States were at perfect liberty, would prefer an intimate connection between them and Great Britain as most conducive to their security and advantage; and who are of opinion, that it will be wise to cultivate friendship between that country and this, to the utmost extent which is reconcileable with the faith of existing engagements: While the most general opinion is, that it is our true policy, to steer as clear as possible of all foreign connection other than commercial and in this respect to cultivate intercourse with all the world on the broadest basis of reciprocal privilege.
An attentive consideration of the vicissitudes which have attended the friendships of nations, except in a very few instances, from very peculiar circumstances, gives little countenance to systems which proceed on the supposition of a permanent interest to prefer a particular connection. The position of the United States, detached as they are from Europe admonishes them to unusual circumspection on that point. The same position, as far as it has relation to the possessions of European powers in their Vicinity, strengthens the admonition.
Let it be supposed that Spain retains her possessions on our right, and persists in the policy she has hitherto pursued without the slightest symptom of relaxation of barring the Mississippi against us, where must this end, and at a period not very distant? Infallibly in a War with Spain, or separation of the Western Country. This Country must have an outlet for its commodities. This is essential to its prosperity, and if not procured to it by the United States must be had at the expence of the Connection with them. A war with Spain, when our affairs will have acquired greater consistency and order, will certainly be to be preferred to such an alternative. In an event of this sort we should naturally seek aid from Great Britain. This would probably involve France on the opposite side, and effect a revolution in the state of our foreign politics.
In regard to the possessions of Great Britain on our left, it is at least problematical, whether the acquisition of them will ever be desireable to the United States. It is certain that they are in no shape essential to our prosperity. Except therefore the detention of our Western posts (an object too of far less consequence than the navigation of the Mississippi) there appears no necessary source of future collission with that power.
This view of the subject manifests, that we may have a more urgent interest to differ with Spain, than with Britain. And that conclusion will become the stronger, if it be admitted, that when we are able to make good our pretensions, we ought not to leave in the possession of any foreign power, the territories at the mouth of the Mississippi, which are to be regarded as the key to it.
While considerations of this nature ought not to weaken the sense, which our Government ought to have of any obligations which good faith shall fairly impose, they ought to inspire caution in adopting a system, which may approximate us too nearly to certain powers, and place us at too great a distance from others. Indeed every system of this kind is liable to the objection, that it has a tendency to give a wrong biass to the Councils of a Nation, and sometimes to make its own interest subservient to that of another.
If the immediate cause of the impending war between Britain and Spain be considered, there cannot be drawn from thence any inducements for our favouring Spain. It is difficult to admit the reasonableness or justice of the pretensions on her part, which occasioned the transaction complained of by Great Britain, and certainly the monopoly, at which those pretensions aim, is intitled to no partiality from any maritime or trading people. Hence considerations, neither of justice nor policy, as they respect the immediate cause of the quarrel, incline us towards Spain.
Putting therefore all considerations of peculiar good will to Spain or of predilection to any particular connection out of the Question, the argument respecting refusal or consent, in the case supposed, seems to stand thus.
The acquisition of the Spanish territories, bordering upon the U. States, by Britain would be dangerous to us. And if there were a good prospect, that our refusal would prevent it, without exposing us to a greater evil, we ought to refuse. But if there be a considerable probability that our refusal would be ineffectual; and if being so, it would involve us in war or disgrace, and if positive disgrace is worse than war, and war, in our present situation, worse, than the chances of the evils, which may befall us, from that acquisition, then the conclusion would be that we ought not to refuse. And this appears to be the true conclusion to be drawn from a comprehensive and accurate view of the subject; though first impressions are on the other side.
These reflections also may be allowed to come in aid of it. Good or evil is seldom as great, in the reality, as in the prospect. The mischiefs we apprehend may not take place. The enterprise, not withstanding our consent, may fail. The acquisition, if made, may in the progress of things be wrested from its possessors. These if pressed hereafter (and we are willing to accept it) may deem it expedient to purchase our neutrality by a cession to us of that part of the territory in question, which borders on the Mississippi accompanied with a guarantee of the navigation of that river. If nothing of this sort should happen, still the war will necessarily have added millions to the debt of Britain, while we shall be recruiting and increasing our resources and our strength. In such a situation, she will have motives of no inconsiderable force for not provoking our resentment. And a reasonable confidence ought to be reposed in the fidelity of the inhabitants of the Western Country; in their attachment to the Union; in their real interest to remain a part of it, and in their sense of danger from the attempt to separate, which at every hazard ought to be resisted by the United States.
It is also to be kept in view, that the same danger, if not to the same extent, will exist, should the territories in question remain in the hands of Spain.
Besides all this, if a war should even be deemed a less evil than the neighbourhood of the British in the quarter meditated, good policy would still seem to require as before intimated, that we should avoid putting ourselves in a situation to enter into it, till we had stipulated adequate indemnities and considerations for doing so; that we should see a little further into the unravellment of the plot, and be able to estimate what prospect these would be by our interference of obviating the evil. It deserves a reflection, that if those territories have been once wrested from Spain, she will be more tractable to our wishes, and more disposed to make the concessions, which our interests require, than if they never passed into other hands.
A question occurs here whether there be not a middle course between refusal and consent; to wit, the waving an answer by referring the matter to further consideration. But to this there appear to be decisive objections. An evasive conduct in similar cases is never dignified, seldom politic. It would be likely to give satisfaction to neither party—to effect no good—to prevent no ill. By Great Britain, it would probably be considered as equivalent to a refusal—as amounting to connivance by Spain—as an indication of timidity by all the world.
It happens that we have a post on the Wabash, down which River the expedition, it is presumeable, must go. If the Commanding Officer at that post has no orders to the contrary, it will be his duty to interrupt the passage of the British troops;15 if he does, it would seem necessary for them in order to the safe passage of their boats, with their artillery stores, provisions, and baggage, to take that post. Here then would be a passage through our territory, not only without our permission, but with the capture of a post of ours; which would be in effect making war upon us. And thus silence, with less dignity, would produce the same ill consequence, as refusal.
If to avoid this, private orders were to be sent to the commanding officer of that post not to interrupt the passage, his not being punished for his delinquency would betray the fact and afford proof of connivance.
The true alternative seems to be to refuse or consent: And if the first be preferred to accompany it with an intimation, in terms as free from offence as possible, that dispositions will be made to oppose the passage if attempted to be forced; and, accordingly, as far as practicable to make and execute such dispositions.
If on the contrary consent should be given it may deserve consideration whether it would not be expedient to accompany it with a candid intimation that the expedition is not agreeable to us, but that thinking it expedient to avoid an occasion of controversy, it has been concluded not to withold assent. There are however objections to this mode. In case of consent an early and frank explanation should be given to Spain.
Question the Second
What notice ought to be taken of the measure, if it should be undertaken without leave, which is the most probable proceeding of the two?
If leave should be asked and refused and the enterprise should be prosecuted without it, the manner of treating it has been anticipated, that is the passage if practicable should be opposed, and if not practicable, the outrage should be resented by recourse to arms.
But if the enterprise should be undertaken without asking leave, which is presumed to be the import of the question, then the proper conduct to be observed will depend on the circumstances.
As the passage contemplated would be by water, and almost wholly through an uninhabited part of the Country, over which we have no actual jurisdiction, if it were unaccompanied with any violence to our citizens or posts, it would seem sufficient to be content with remonstrating against it, but in a tone that would not commit us to the necessity of going to war: the objections to which apply with full force here.
But, if as is to be feared will necessarily be the case, our post on the Wabash should be forced, to make good their passage, there seems to be no alternative but to go to war with them; unwelcome as it may be. It seems to be this, or absolute and unqualified humiliation: Which as has been already noticed, is in almost every situation a greater evil than war.
In such an event, it would appear adviseable immediately to convene the Legislature; to take the most vigorous measures for war; to make a formal demand of satisfaction; to commence negotiations for alliances; and if satisfaction should be refused to endeavor to punish the aggression by the sword.16
Secretary of the Treasury
ADS, DLC:GW; copy, DLC: Alexander Hamilton Papers.
2. The German historian and jurist Samuel, Baron von Pufendorf (1632–1694), first published De jure Natural et Gentium in 1672. Hamilton was probably familiar with the work through the fourth edition of Basil Kennett’s English translation, Of the Law of Nature, published in London in 1729 (see Syrett, Hamilton Papers description begins Harold C. Syrett et al., eds. The Papers of Alexander Hamilton. 27 vols. New York, 1961–87. description ends , 7:39, n.3).
3. French jurist Jean de Barbeyrac (1674–1744) first published his commentary on Grotius, Le droit de la paix et de la guerre, in 1720–24. Hamilton’s citations may have been to The Rights of War and Peace in Three Books. Wherein Are Explained, the Law of Nature and Nations, and the Principal Points Relating to Government. Written in Latin by the Learned Hugo Grotius, and Translated into English. To Which Are Added, All the Large Notes of Mr. J. Barbeyrac, Professor of Law at Groningen, and Member of the Royal Academy of Sciences at Berlin (London, 1738; see Syrett, Hamilton Papers description begins Harold C. Syrett et al., eds. The Papers of Alexander Hamilton. 27 vols. New York, 1961–87. description ends , 7:39, n.4).
4. The Dutch jurist and scholar Hugo Grotius (1583–1645) first published his great contribution to modern international law, De jure Belli et Pacis, in Paris in 1625. Hamilton probably knew Grotius’s On the Law of War and Peace through Barbeyrac’s work, cited in n.3 above (see Syrett, Hamilton Papers description begins Harold C. Syrett et al., eds. The Papers of Alexander Hamilton. 27 vols. New York, 1961–87. description ends , 7:39, n.5).
6. Hamilton’s footnote, “Puffendorfs Law of Nature & Nations page 239, 240,” is keyed to this point in the original.
7. Hamilton cited this as “Note 1 on Book II Chapt. II. § XII” at the bottom of the original page.
8. Hamilton noted in the original at the bottom of the page, “Rights of War & Peace, Book II Chap. II § XIII No. 1. 2. 3. 4.”
9. Hamilton’s citation, “Book III Chap. VII § 119. 120. 121. 122. 123.” appears at the foot of the page in the original.
10. Hamilton cited this as “Vatel Book III Chap. VII Section 127” at the bottom of the original page.
11. Hamilton keyed the following footnote to this point in the original: “France has made us one loan since the peace”; France’s final loan to America was for 6,000,000 livres in 1783.
12. The following note, which Hamilton inserted in the left margin of the original page, reads: “She has maintained possessions within our acknowledged limits without our consent.”
13. Hamilton continued this sentence along the left margin of the original page: “ground that she has not scrupled to intrigue with leading individuals in the Western Country to seduce them from our interests and to attach them to her own.”
14. The following note, keyed to this point in the text, appears along the left margin of the original page: “The conclusion from what has been said is, that there is a right either to refuse or consent as shall be judged for the Interest of the United States; though the right to consent is less questionable than that to refuse.”
15. Maj. John Francis Hamtramck was commandant of Fort Knox at Vincennes on the Wabash River.
16. GW acknowledged Hamilton’s letter and reply to his queries on 3 Oct. 1790, noting, “I feel myself much obliged by the full and able consideration you have given the subject. From present appearances, however, it does not seem as if there would be occasion for any decision on either point which gave birth to my questions” (ALS, listed in Sotheby’s catalog no. 5700, item 147, April 1988).