Title: The Defence No. V, [5 August 1795]
From: “Camillus”,Hamilton, Alexander
To:

[New York, August 5, 1795]

The discussion in the two last numbers has shewn if I mistake not, that this Country by no means stands upon such good ground with regard to the inexecution of the Treaty of peace as some of our official proceedings have advanced and as many among us have too lightly creditted. The task of displaying this truth has been an unwelcome one. As long as a contrary doctrine was either a mere essay of polemical skill or a convenient ingredient of negotiation it was natural for those who thought indifferently of it to prefer silence to contradiction. But when it is made the engine of great errors of national conduct of excessive pretensions which forbid a reasonable accommodation of national differences and endanger rupture and war on grounds which reason disapproves and prudence condemns—it becomes an indispensable duty to expose its hollowness and fallacy. Reserve then would be a crime. The true Patriot who never fears to sacrifice popularity to what he believes to be the cause of ⟨public⟩ good, ⟨canno⟩t hesitate to endeavour to unmask the error, ⟨though with the certainty of incuring⟩ the displeasure and [censure of the prejudiced and unthinking.
The disposition to infract the treaty, which in several particulars discovered itself among us, almost as soon as it was known to have been made, was from its first appearance a source of humiliation, regret, and apprehension to those who could dispassionately estimate the consequences, and who felt a proper concern for the honour and character of the country. They perceived that besides loss of reputation, it must sooner or later lead to very serious embarrassments. They have been hitherto mistaken in no part of their anticipations, and if their faithful warning voice, now raised to check the progress of error, is as listened to as when it was raised to prevent the commencement of it, there is too much cause to fear, that the experience of extensive evils may extort regrets which the foresight of an enlightened people ought to avert.
Citizens of United America! as you value your present enviable lot, rally round your own good sense! expel from your confidence, men who have never ceased to misadvise you! Discard intemperate and illiberal passions! Aspire to the glory of the greatest] triumph which a people can gain, a triumph over prejudice. Be just, be prudent. Listen impartially to the unadulterated language of Truth. And above all guard your peace with anxious vigilance against all the artful snares which are laid for it. Accompany me with minds open to conviction in a discussion of unspeakable importance to your welfare!
Weigh well as a preliminary to further investigation this momentous proposition—“Peace in the particular situation of this Country is an object of such great and primary magnitude—that it ought not to be relinquished unless the relinquishment be clearly necessary to preserve our honor in some unequivocal point, or to avoid the sacrifice of some right or interest of material and permanent importance.” This is the touchstone of every question which can come before us respecting our foreign Concerns.
As a general proposition scarcely any will dispute it, but in the application of the rule, there is much confusion of ideas—much false feeling and falser reasoning. ⟨The ravagings of anger and⟩ pride are mistaken for [the suggestions of honor. Thus are we told in a delirium of rage, by a gentleman of South Carolina, that our envoy should have demanded an unconditional relinquishment of the Western Posts as a right; ’till which was granted, and until Lord Grenville had given orders to Lord Dorchester to that effect, open to be sent to our president, to be by him forwarded, he should not have opened his lips about the treaty. It was prostituting the dearest rights of free men, and laying them prostrate at the feet of royalty.

In a case of incontestible, mutual infractions of a treaty, one of the parties is to demand, peremptorily of the other, an unconditional performance on his part, by way of preliminary and without negociation. An envoy sent to avert war, carrying with him the clearest indications of a general solicitude of his country, that peace might be preserved, was at the very first stept of his progress to render hostility inevitable, by exacting, not only what could not have been complied with, but what must have been rejected with indignation. The government of Great Britain must have been the most abject on earth, in a case so situated, to have listened for a moment to such a demand. And because our envoy did not pursue this frantic course; did not hold the language of an imperious Bashaw to his trembling slave, he is absurdly stigmatized as having prostrated the rights of freemen, at the feet of royalty. What are we to think of the state of the mind which could produce so extravagant a folly? Would a prudent people have been willing to have entrusted a negociation which involved their peace to the author of it? Will they be willing to take him as their guide in a critical emergency of their affairs?

   No man in the habit of thinking well either of Mr. Rutleges head or heart, but must have felt at reading the passages of his speech, which have been published, pain, surprise, and mortification. I regret the occasion, and the necessity of animadversion.

True honor is a rational thing. It is as distinguishable from Quixotism as true courage from the spirit of a bravo. It is possible for one nation to commit so undisguised and unqualified an outrage upon another, as to render a negociation of the question dishonourable. But this seldom, if ever, happens. In most cases it is consistent with honor to preceed rupture by negociation, and whenever it is, reason and humanity demand it. Honor cannot be wounded by consulting moderation. As a general rule, it is not till after it has become manifest that reasonable reparation for a clear premeditated wrong cannot be obtained by an amicable adjustmen[t], that honor demands a resort to arms. In all the questions between us and Great Britain, honor permitted the moderate course; in those which regard the inexecution of the treaty of peace, there had undoubtedly been mutual faults. It was therefore a case for negociation and mutual reparation. True honor, which can never be separated from justice, even requires reparation from us to Great Britain, as well as from her to us. The injuries we complain of in the present war were also of a negociable kind. The first was bottomed on a controverted point in the laws of nations. The second left open the question, whether the principal injury was a designed act of the government or a misconstruction of its courts. To have taken, therefore, the imperious ground which is recommended, in places of that which was taken; would have been not to follow the administration of honor, but to have submitted to the impulse of passion and phrenzy.
So likewise, when it is asserted that war is preferable to the sacrifice of our rights and interests, this, to be true, to be rational, must be understood of such rights and interests as are certain, as are important, such as regard the honor, security or prosperity of our country. It is not a right disputable, or of small consequence, it is not an interest temporary, partial and inconsiderable, which will justify, in our situation, an appeal to arms.
Nations ought to calculate as well as individuals, to compare evils, and to prefer the lesser to the greater; to act otherwise, is to act unreasonably; those who counsel it are impostors or mad men.
These reflections are of a nature to lead to a right judgment of a conduct of our envoy in the plan of adjustment to which he has given his assent.
Three objects, as has appeared, were to be aimed at, on behalf of the United States, 1st, Compensation for the negroes carried away. 2d, Surrender of the Western Posts. 3d, Compensation for spoliations during the existing war.
Two of these objects, and these in every view the most important, have been provided for, how fitly will be examined hereafter. One of them has been given up (to wit) compensation for the negroes.
It has been shewn, as I trust, to the conviction of dispationate men, that the claim of compensation for the negroes, is in point of right, a very doubtful one, in point of interest, it certainly falls under the description of partial and inconsiderable; affecting in no respect, the honor or security of the nation, and incapable of having a sensible influence upon its prosperity. The pecuniary value of the object is, in a national scale, trifling.
Not having before me the proper document, I can only speak from memory. But I do not fear to be materially mistaken in stating that the whole number carried away, so ascertained as to] have afforded evidence for a claim of compensation was short of 3000 persons, men women and children. Computing these at an average of 200 dollars per head which is certainly a liberal price the amount would be 600 000 Dollars—and not two or three millions as has been pretended.
It is a fact which I assert on the best authority, that our envoy made every effort in his power to establish our construction of the article relating to this subject, and to obtain compensation, and that he did not relinquish it till he became convinced that to insist upon it would defeat the purpose of his mission and leave the controversy between the two Countries unsettled.
Finding at the same time, that the two other points in dispute could be reasonably adjusted—is there any one who will be rash enough to affirm that he ought to have broken off the negotiation on account of the difficulty about the negroes? Yes! there are men who are thus inconsiderate and intemperate! But will a sober reflecting people ratify their sentence?
What would such a people have said to our Envoy had he returned with this absurd tale in his mouth? “Countrymen! I could have obtained the surrender of your posts and an adequate provision for the reparation of your losses by unjust captures. I could have terminated your controversy with Great Britain and secured the continuance of your peace but for one obstacle, a refusal to compensate for the negroes carried away—on this point, the British Government maintained a construction of the Treaty different from ours and adhered to it with inflexibility. I confess, that there appeared to me much doubt concerning the true construction. I confess also that the object was of inconsiderable value. Yet it made a part of our claims, and I thought the hazards of War preferable to a renunciation of it.”
What would his adversaries have replied to him on such an occasion? No ridicule would have been too strong, no reproach too bitter. Their triumph would have been complete. For he would have been deservedly left without advocate or apologist.
It cannot admit of a serious doubt, that the affair of the negroes was too questionable in point of right, too insignificant in point of interest, to have been suffered to be an impediment to the immense objects which were to be promoted by an accommodation of differences acceptable in other respects. There was no general principle of national right or policy. No consideration of honor forbid the renunciation—every calculation of interest invited to it. The evils of War for one month would outweigh the advantage, if at the end of it there was a certainty of attainment.
But was War the alternative? Yes War, or disgrace.
The U States and Great Britain had been brought to issue. The recent spoliations of our commerce superadded to the evils of a protracted Indian War connected with the detention of the Western Posts and accompanied with indications of a design to contract our Western boundaries, obstructing the course of our settlements and the enjoyment of private rights and producing serious and growing discontent in our Western Country—rendered it indispensable, that there should be a settlement of old differences and a reparation of new wrongs, or that the sword should vindicate our rights.
This was certainly and with reason the general sense of our Country when our Envoy left it. There are many indications that it was the opinion of our Government, and it is to be inferred that our Envoy understood the alternative to be as has been stated.
Indeed what else could be contemplated? After the depredations which had been committed upon our commerce—after the strong sensibility which had been discovered upon the occasion in and out of our public councils—after an envoy extraordinary had been sent to terminate differences and obtain reparation—if nothing had resulted—was there any choice but reprisals? Should we not have rendered ourselves ridiculous and contemptible in the eyes of the whole world by forbearing them?
It is curious to observe the inconsistency of certain men. They reprobate the Treaty as inconsistent with our honor and yet they affect to believe that an abortion of the negotiation would not have led to War. If they are sincere, they must think that national honor consists in perpetually railing, complaining, blustering and submitting. For my part, much as I deprecate War, I entertain no doubt that it would have been our duty to meet it with decision had the negotiation failed—that a due regard to our honor our rights and our interests would have enjoined it upon us. Nor would a pusyllanimous passiveness have saved us from it. So unsettled a state of things would have led to fresh injuries and aggravations, and circumstances too powerful to be resisted would have dragged us into War. We should have lost our honor without preserving our peace. Nations in similar situations have no option but to accommodate differences or to fight. Those which have strong motives to avoid War should by their moderation facilitate the accommodation of differences. This is a rule of good sense, a maxim of sound policy.
But the misfortune is that men will oppose imagination to fact. Though we see Great Britain predominant on the ocean—though we observe her pertinaciously resisting the idea of pacification with France amidst the greatest discouragements—though we have employed a man whose sagacity and integrity have been hitherto undisputed and of a character far from flexible to ascertain what was practicable though circumstances favoured his exertions, though much time and pains were bestowed upon the subject—though there is not only his testimony but the testimony of other men who were immediately on the scene and in whom there is every reason to confide—that all was attained which was attainable—Yet we still permit ourselves to imagine that more and better could have been done, and that by taking even now a high and menacing tone Great Britain may be brought to our feet.
Even a stile of politeness in our Envoy has been construed to his disadvantage. Because he did not mistake strut for dignity and rudeness for spirit, because he did not by petulance and asperity enlist the pride of the British Court against the success of his mission—he is represented as having humiliated himself and his nation. It is forgotten that mildness in the manner and firmness in the thing are most compatible with true dignity, and almost always go farther than harshness and stateliness.
Suppositions that more could have been done by displaying what is called greater spirit are not warranted by facts. It would be extremely imprudent on that basis to trust ourselves to a further experiment—to the immense vicissitudes in the affairs of Europe which from moment to moment may essentially vary the relative situations of the contending parties. If there ever was a state of things which demanded extraordinary circumspection and forbade a spirit of adventure, it is that of the U States at the present juncture viewed in connection with the present very singular and incalculable posture of Europe.
But it is asked, to avoid Sylla may we not run upon Charybdis? If the Treaty should preserve our peace with Britain, may it not interrupt it with France? I answer, that to me there appears no room for apprehension. It will be shewn in the course of the discussion, that the Treaty interferes in no one particular with our engagements to France, and will make no alteration whatever in the state of things between us and her except as to the selling prizes in our ports, which not being required by Treaty, was originally permitted merely because there was no law to forbid it, and which being confined to France was of very questionable propriety on the principles of neutrality and has been a source of dissatisfaction to the other belligerent powers. This being the case, no cause of umbrage is given to France by the Treaty, and it is as contrary to her interest as to her inclination wantonly to seek a quarrel with us. Prostrate indeed were our situation if we could not without offending France make a Treaty with another power which merely tended to extinguish controversy and to regulate the rules of Commercial Intercourse; and this not only without violating any duty to France but without giving any preference to another. It is astonishing that those who assert so much nicety about national honor do not feel the extreme humiliation of such an idea. As to the denomination of Alliance with G Britain which has been given to the Treaty, it is an insult to the understandings of the people to call it by such a Name. There is not a tittle of it which warrants the appellation.
Camillus


Title: From Alexander Hamilton to Oliver Wolcott, Junior, 5 August 1795
From: Hamilton, Alexander
To: Wolcott, Oliver, Jr.

New York Aug 5. 1795
Dr. Sir

I have received yours of 3d instant. You make no mention of having received one from me inclosing another for the Attorney General in which I tell him that I will attend the cause which involves the question respecting direct taxes when notified of the time it will come on.
The silence of your letter makes me fear it may have miscarried.
I do not wonder at what you tell me of the author of a certain piece. That man is too cunning to be wise. I have been so much in the habit of seeing him mistaken that I hold his opinion cheap.
Yrs. truly
A Hamilton
Oliver Wolcott Esq


Title: Philo Camillus No. 2, [7 August 1795]
From: “Philo Camillus”,Hamilton, Alexander
To:

[New York, August 7, 1795]

For the Argus.
Citizen Greenleaf,
A Writer, who signs himself Cinna has come forward to refute the argument which has been stated by Camillus, as that of Great Britain, in support of her construction of the article respecting the Negroes. If illiberal insinuation is argument, Cinna is an adept. But he mistakes the people to whom he addresses himself, if he hopes to supply the want of good reasons by invectives. If Camillus were known, it would be also known that no citizen of the United States has exceeded him in proofs of determined attachment to his country, and of determined opposition to the injustice of Great Britain; that no man is more incapable than he, of becoming the obsequious apologist of that country; of justifying her acts however wanton; or, of depreciating our own, and placing it improperly in the wrong, as calumniating Cinna has alledged. Camillus has no exotic ingredients in his creed. It is neither Grecian nor Trojan; neither French nor British. It is purely American. It would grieve him in the inmost recesses of his soul to see a country to which he is devoted, and to which he has made great sacrifices, destined to revolve like a satellite round either France or Great Britain. Would to heaven all his opponents could lay their hands upon their hearts and say as much! We should not then have seen the systematic efforts, which have continued from the time of our war with Great Britain to the present moment, to make the interests of our country subservient to those of France: We should not see, at this moment, such violent exertions to keep us, as it were, insulated from all the world but France. There would be no set of men who would not see and acknowledge the wisdom of multiplying and extending pacific and commercial relations with as many other powers as we can; avoiding close alliances, and the making of common cause, with all of them.
But while Camillus prides himself in this truly and only American creed; he distinguishes patriotism from a blind partiality for national errors, and from the art of making these errors the foundation of still greater. In our contests with other nations, he thinks it a duty to examine with candour, how far they, or ourselves may be to blame, as the true guide to a just and reasonable result; and he despises the cowardice of not telling his fellow-citizens what he believes to be true, because it may happen not to accord with their prepossessions.
Having replied this much to the calumny of Cinna, let us proceed to what he may call his argument. I affirm, that it does not meet fairly a single point, nor obviate a single difficulty in the opposite argument.
His first observation is this. “Whenever the meaning of an instrument is doubtful, there cannot be a safer or fairer way to attain its true sense, than by considering the circumstances and views of the parties at the time of making the contract, and that they acted with good faith to each other. To apply this rule: during the late war, many Negroes had been taken by, or had voluntarily joined the armies, or gone into the garrisons of Great Britain. To reclaim them and prevent their being carried away, was an object which our commissioners had much at heart, and it is not easy to conceive how this object could have been expressed in plainer or less ambiguous terms.”
Answer. The general rule here laid down is a good one; but by the very terms of it, “the circumstances and views” not of one party but of “the parties” are to be considered. Now, as on the one hand it was natural for us to wish to get back the Negroes, so on the other it was very unnatural that Great Britain should intend to violate the faith pledged to them, and after having declared them free, to abandon them to slavery. Hence the abandonment cannot be presumed to have accorded with the views of both parties, and therefore does not come within the rule.
But secondly, it is not good reasoning to draw a rule of interpretation of a promise to do several things, from a motive which is applicable to only one of the things to be done, and which is unreasonable as applied to the others. Cinna derives the reason of the stipulations from the single article of the negroes, while the stipulation itself speaks of “negroes and other property.” It is as true that many ships, horses, oxen, and other cattle; much furniture and various other articles of personal property, had been taken by the British forces, as that negroes had been taken by, or joined them. An intention, therefore, must be sought applicable to other property as well as to negroes. Then comes the question—Is it presumable that the United States meant to demand, or Great Britain to promise, an abandonment of all the booty of a seven years war? If the terms are in the least ambiguous, this must be answered in the negative. That they are ambiguous, no man who reads them will doubt, notwithstanding the inference from the alledged accuracy of Franklin, who, by the way, it is known, had less agency in that treaty than any other of the commissioners, and it is probable, did not pen a line of it. But the imperfection of language, and the urgency of conjunctures, frequently occasion the most accurate men to use inaccurate expressions. How much dispute has there been about the meaning of several parts of our treaty with France, in which Franklin had a predominant agency?
Cinna says it is not easy to conceive how the object could have been expressed in plainer or less ambiguous terms. I will convince him that nothing was more easy. These expressions would have been perfectly clear “without carrying away any negroes, which immediately previous to their being captured by, or to their joining the forces of his Britannic majesty, were the property of American inhabitants.” This would have avoided the ambiguity as to time, and as to the effect of capture, and by standing without the words “and other property” would have steered clear of the difficulty incident to the idea of a general and indiscriminate abandonment of booty, which is inseparable from our sense of the stipulation as it is now worded.

The second observation of Cinna is in these words; “It could not be necessary to guard against new depredations—peace being made, all hostilities of every kind ceased. To confine this article, therefore, to an engagement to abstain from further plunder is rendering it altogether negative and useless.”
Camillus anticipated this objection to the construction opposite to ours, and has conclusively answered it. But Cinna found it more convenient to pass by his answer, than to attempt a refutation of it. Camillus’s answer is founded upon this clause of the same article, “without causing any destruction,” which immediately precedes the provision respecting the negroes. The cessation of hostilities as much precluded the causing of further destruction, as the taking further plunder, and it was as unnecessary in strictness to provide against further destruction as against further plunder: but it is indisputable, that the first of these two unnecessary things is done by the article, and therefore, it being unnecessary with respect to the other part of the provision is no objection to understanding it in a similar sense. But the truth is, that nothing is more common in treaties than to insert, for greater caution, particular provisions, which are in strictness unnecessary, because they are comprehended in, or result from, other provisions, or from the nature of the thing.
But it may be remarked, that the article might have been intended to prevent the carrying away of negroes not taken in war, but who had joined the British, either previous to the invitations by proclamation, or after the cessation of hostilities.
The next observation of Cinna is, that “the reasoning of Camillus is constrained and contradictory; that in one breath he likens negroes to horses, cattle, and other moveables, and as such, liable to become booty; in the next, considers them as rational beings, and as intitled to liberty under British proclamations.” But what contradiction is there in this? on the contrary, these different aspects of the subject are incident to the nature of it.
The laws of certain states which give an ownership in the service of negroes as personal property, constitute a similitude between them and other articles of personal property, and thereby subject them to the right of capture by war. But being men, by the laws of God and nature, they were capable of acquiring liberty—and when the captor in war, to whom by the capture the ownership was transferred, thought fit to give them liberty, the gift was not only valid, but irrevocable.
Weakly, then, does Cinna put his question, “admitting that slaves may become booty, and that their property becomes vested in the captor, has he not a right to restore them, if he pleases, at a peace?”
I answer, yes; if he has retained till that time the property acquired by the capture; but most certainly not if he had previously parted with it by infranchisement of the slave—his right had then ceased. Liberty once gained could not be revoked. There was no legal or moral power of doing it, and to have done it at all would have been the extreme of treachery, perfidy, and baseness. All the observations of Cinna, founded upon a contrary supposition, are futile and absurd.
It is a mere sophism to say, that it was less immoral to abandon the negroes to slavery, than not to make restitution to the owners from whom they had been allured to be armed against their masters. Two wrongs do not make a right—one immoral thing does not obviate the immorality of a prior immoral thing. However censurable the first act was, the last would not have repaired the criminality. It would have added guilt to guilt—nor is there any comparison between the degree of turpitude of the two things. To have withdrawn slaves from their masters as a public enemy, and to have employed them against those masters, was an act, tho’ odious, far less odious than would have been the abandonment of those persons to the bondage of their former masters, after they had been so used on the promise of liberty. The feelings of every real friend to liberty must be in unison with this assertion.
Considering the first act as improper, & supposing there was an intention to make reparation, the true and the only way consistent with justice and morality was to stipulate compensation for the negroes in question.
But this the article does not do. If it promises any thing more than to abstain from new acts of depredation, it promises specifically the abandonment of the negroes to their former slavery.
This Camillus has truly asserted to be odious and immoral, and as such forming an objection to our construction of the article. And he also truly asserts that the substitution of compensation does not obviate the difficulty.

For no proposition in Euclid is more clear than this, “that where a specific thing is promised, nothing but the doing that very thing is performance of the promise.” The giving an equivalent may amount to reparation, but it is not performance. Whence it follows incontestibly, that the possibility of an equivalent, as a substitute which is not odious or immoral, cannot obviate an objection to such a meaning of a promise as would require a specific thing, which is odious and immoral.
It is a mere evasion of this argument to say with Cinna, that “nothing is more common than a satisfaction in damages for the breach of a promise to do a specific thing.” This presupposes, and so in all law proceedings it is constantly charged, that the promise has been broken, and the damages are awarded not as performance of the promise, but as satisfaction for the breach.
But this does not touch the point of Camillus’s argument, “that you cannot suppose a thing to be promised which is in itself odious or immoral, because pecuniary compensation may be made; inasmuch as compensation is not performance, but a substitute for it, which, especially as between nations, the party to whom the promise is made is not obliged to accept. Consequently if the thing itself was improper to be promised, or is improper to be performed, it is not the less objectionable, because it is possible by way of reparation to do another thing in lieu of it; that is, to make compensation.” This argument, if rightly understood is, unanswerable. If Cinna does not comprehend it, ‘tis not Camillus’s fault. He was not bound to find Cinna argument and understanding too.
Cinna charges Camillus with blazoning the virtues and humanity of his Britannic Majesty, and with representing him as very scrupulous about doing an odious or immortal act. This is false and despicable rant. There is not a syllable in Camillus which warrants the suggestion. He speaks of things only, and without any allusion whatever to the character of his Britannic Majesty.
He says, indeed, that the abandonment of negroes, who had been promised freedom, to bondage and slavery, would be odious and immoral, and as such cannot be presumed to have been intended. This is a general argument without allusion to personal character, and would have been equally true whether a Caligula or a Marcus Aurelius had filled the throne of Great Britain.
Cinna recommends a perusal of Mr. Jefferson’s letter as an antidote to the doctrines of Camillus, and as a convincing vindication of our pretensions. That letter does not even examine the point as to the true construction of the article in question, but takes our sense of it for granted, and builds on that foundation. On the score of ingenuity and good penmanship, it does credit to its writer; but its general complexion is that of the harangue of an advocate, resolved to justify his client through thick and thin. Camillus has truly observed that it’s the first public act which attempts to vindicate or excuse in the gross the conduct of this country in regard to the treaty of peace. It may be added, that it has the merit of attaching to the general government, by the justification of them, the disrepute of measures which was before confined to particular states, and which it had been the policy of the union to repel from itself, on the ground of its inability to prevent. And, in general, it is a piece which speaks loudly the prejudice of its writer, and more than any state paper of this country tends to do mischief, by misleading the public opinion. Camillus has shewn that its reasonings about the first breach of the treaty are inconclusive, and in doing this has pointed out two great errors; one, that it dates the obligation to performance on the part of Great Britain from the provisional articles, while it virtually considers the United States as not bound till after the definitive treaty; the other, that it asserts it to have been “perfectly understood, that treaties controuled the laws of the States,” when documents which itself quotes, prove, that the State of Virginia by solemn acts of its general assembly expressed and acted upon a different understanding. Errors like these overthrow the whole fabric.
The last observation of Cinna is by way of question. He asks “if Camillus is right, how happened it that a majority of the Senate at their late session agreed to invite the President to renew negociations for a compensation for the negroes?” By the way, while Camillus has stated the arguments which support the British construction, he has given no opinion of his own, except that it is a very doubtful point. But the measure of the Senate which Cinna cites is very easily explained. The claim of compensation for the negroes was near the heart of a respectable portion of the people of the United States. A right to it had become extensively a part of the public creed. It was desireable by every possible effort to give satisfaction. It is no proof that a Senator thought the merits of the question with us, because he was willing by one more experiment to mask his attention to the opinions and interests of a number, not inconsiderable of his fellow-citizens.
Philo-Camillus.


Title: The Defence No. VI, [8 August 1795]
From: “Camillus”,Hamilton, Alexander
To:

[New York, August 8, 1795]

There is one more objection to the Treaty for what it does not do, which requires to be noticed. This is an omission to provide against the empressment of our seamen.
It is certain that our Trade has suffered embarrassments in this respect, and that there have been abuses which have operated very oppressively upon our seamen; and all will join in the wish that they could have been guarded against in future by the Treaty.
But it is easier to desire this than to see how it could have been done. A general stipulation against the impressment of our seamen would have been nugatory if not derogatory. Our right to an exemption is perfect by the laws of nations, and a contrary right is not even pretended by Great Britain. The difficulty has been and is to fix a rule of evidence by which to discriminate our seamen from theirs and by the discrimination to give ours protection, without covering theirs in our service. It happens that the two nations speak the same language and in every other exterior circumstance closely resemble each other—that many of the natives of Great Britain and Ireland are among our citizans and that others without being properly our citizens are employed in our vessels.
Every body knows that the safety of Great Britain depends on her Marine. This was never more emphatically the case, than in the war in which she is now engaged. Her very existence as an independent power seems to rest on a maritime superiority.
In this situation can we be surprised that there are difficulties in bringing her to consent to any arrangement which would enable us by receiving her seamen into our employment to detach them from her service? Unfortunately there can be devised no method of protecting our seamen which does not involve that danger to her. Language & appearance instead of being a guide, as between other nations, are between us and Great-Britain sources of mistake and deception. The most familiar experience in the ordinary affairs of society proves that the oaths of parties interested can not be fully relied upon. Certificates of citizenship by officers of one party would be too open to the possibility of collusion and imposition to expect that the other would admit them to be conclusive. If inconclusive, there must be a discretion to the other party which would destroy their efficacy.
In whatever light it may be viewed there will be found an intrinsic difficulty in devising a rule of evidence safe for both parties and consequently in establishing one by Treaty. No nation would readily admit a rule which would make it depend upon the good faith of another and the integrity of its agents whether her seamen in time of War might not be withdrawn from her service and transferred to that of a neutral power. Such a rule as between Great Britain and us would be peculiarly dangerous on account of the circumstances which facilitate a transfer of seamen from one to the other. Great Britain has accordingly perseveringly declined any definitive arrangement on the subject—notwithstanding earnest & reiterated efforts of our Government.
When we consider candidly the peculiar difficulties which various circumstances of similitude between the people of the two countries oppose to a satisfactory arrangement, and that to the belligerent party it is a question of national safety, to the neutral party a question of commercial convenience & individual security, we shall not be the less disposed to think the want of such a provision as our wishes would dictate, a blemish in the Treaty.
The truth seems to be that from the nature of the thing it is matter of necessity to leave it to occasional and temporary expedients—to the effect of special interpositions from time to time to procure the correction of abuses and if the abuse becomes intolerable to the ultima ratio. The good faith of the parties and the motives which they have to respect the rights of each other and avoid causes of offence, and vigilance in noting and remonstrating against the irregularities which are committed are probably the only peaceable securities of which the case is susceptible. Circumstances appear to forbid any thing more; and it was not to be expected of our envoy that he would accomplish impossibilities. Those who are in the habit of seeing that there is always more than one side to a question will be most ready to acknowlege the justice of this conclusion.
Our Minister Plenapotentiary, Mr. Pinkney, it is well known has long had this matter in charge and has strenuously exerted himself to have it placed upon some acceptable footing. But his endeavours have been unsuccessful further than to mitigate the evil by some additional checks and by drawing the attention of the British Government to the observance of greater caution. A more sensible effect of our representations has been latterly experienced; and with attention and vigilance that effect may be continued and perhaps increased. But there is reason to conclude that it will be constantly found impracticable to establish a conventional and efficacious guard.
I proceed now to the examination of the several articles of the Treaty in the order in which they stand.
The first contains merely a general declaration that there shall be peace and friendship between the contracting parties the countries and people of each, without exception of persons or places.
One would have imagined that this article at least would have escaped a formal objection, however it might have been secretly viewed as the most sinful of all, by those who pant after war and enmity between the two Countries. Nothing but the fact could have led to a surmise, that it was possible for it to have been deemed exceptionable; and nothing can better display the rage for objection which actuates the adversaries of the Treaty than their having invented one against so innocent a provision.
But the Comittee appointed by a Meeting at Charlestown South Carolina have sagaciously discovered that this article permits “the unconditional return to our Country of all persons who were proscribed during the late war.”

With all but men determined to be dissatisfied it would be a sufficient answer to such an objection to say that this article is a formula in almost every treaty on record and that the consequence attributed to it was never before dreamt of, though other nations besides ourselves have had their proscriptions and their banishments.
But this is not all. Our Treaty of Peace with Great Britain in 1783 has an equivalent stipulation in these words (Article 6) “There shall be a firm and perpetual peace between his Britannic Majesty and the said States and between the subjects of the one and the Citizens of the other.” In calling this an equivalent stipulation I speak with reference to the objection which is made. The argument to support that objection would be to this effect. “Exiles and criminals are not regarded as within the peace of a country: but the people of each are by this article placed within the peace of the other: therefore proscribed persons are restored to the peace of the U States and so lose their character of exiles and criminals.”
Hence the argument will turn upon the word “peace” the word friendship will have no influence upon the question. In other respects there is no difference in substance between the two articles. For the terms “people” “subjects” “citizens” as used in the two treaties are synonimous. If therefore the last Treaty stipulates that there shall be peace between the Governments countries and people of the two Nations—the first stipulates what is equivalent that there shall be peace between the two Governments and the subjects & citizens of each. The additional words, without exception of persons or places can make no difference—being mere surplussage. If A says to B “I give you all the money in this purse”; the gift, is as complete as if he had said, “I give you all the money in this purse, without exception of a single dollar.”
But the object of the stipulation and the subject of the objection have no relation whatever to each other. National stipulations are to be considered in the sense of the laws of nations. Peace in the sense of those laws defines a state which is opposite to that of War. Peace in the sense of the municipal law defines a state which is opposite to that of criminality. They are consequently different things and a subject of Great Britain by committing a crime may put himself out of the peace of our Government in the sense of our municipal laws while there might be perfect peace with him in the sense of the laws of Nations & vice versa there might be war with him in the sense of the laws of Nations & peace in that of the municipal law.
The punishment of a subject of Great Britain as a felon would certainly not constitute a state of war between the parties nor interfere with the peace which is stipulated by this article—though it is declared that it shall be inviolable and might as well be affirmed to prevent the punishment of future as of former criminals.
But who in the contemplation of the laws of the respective States are the proscribed persons? They must be understood to have been subjects or citizens of the states which proscribed them—Consequently can not be presumed to be comprehended in an article which stipulates peace between the nations and their respective Citizens. This is not a stipulation of peace between a nation and its own criminal citizens—nor can the idea of expatriation be admitted to go so far as to destroy the relation of citizen as it regards amenability for a crime. To this purpose at least the offender must remain a citizen.
There can hardly have been a time when a Treaty was formed between two Nations, when one or the other had not exiled criminals or fugitives from justice which it would have been unwilling to reinstate. Yet this was never deemed an obstacle to the article nor has an immunity from punishment ever been claimed under it, nor is there the least ground to assert that it might be claimed under it.
It follows that the objection which has been taken to this article is wholly without foundation. It is humiliating to the human understanding or disreputable to the human heart that similar objections should come from sensible men. It is disgustful to have to refute them. The regard I feel for some of those who have brought it forward makes it a painful task. How great is the triumph of passion over judgment on this occasion!
Camillus

☞From a note of the Editor of this paper it is to be inferred that a piece has been sent to him charging the Writer of Camillus with having liberated some person from jail to insult or fight those who are called respectable Whigs. The suggestion is a total falsehood. The Writer of Camillus has not recently liberated any person from Jail—though if he had it would not be the first instance that laudable actions have been misconstrued and imputed to him as crimes. This is a specimen of the detestable arts which are employed to excite resentment against the supposed Author of Camillus. What does all this mean?


Title: From Alexander Hamilton to the Editor of the Minerva, 11 August [1795]
From: Hamilton, Alexander
To: Minerva, the Editor of the

New York August 11. [1795]

The Editor of the Minerva having received information, through an authentic channel, that Mr. Pinckney, our Minister at London, had written to this Country in a manner, which indicated that he had been consulted by Mr. Jay on the subject of the Treaty lately negotiated with Great Britain, and that it had met with his approbation; felt himself warranted in stating these ideas to the public. Having been called upon, in the Argus of Saturday last, in a manner not very decent, for evidence of the fact; & knowing that Mr. Jay must be able to give a confirmation of it; and thinking it probable that he might not be unwilling to do so—The Editor took the liberty through a friend to make the Inquiry of him. Mr. Jay has obligingly furnished the following extract of a letter from himself to the Secretary of State: which fully establishes the truth of what has been alleged. (viz)
Extract of a Letter from Mr Jay to the Honb. Edm. Randolph Esqr Secy of State. dated at London the 19 Novr 1794.
“I ought not to omit mentioning the acknowledgments due from me to mr. Pinckney: with whom I have every Reason to be satisfied, and from whose advice and opinions I have derived Light and advantage in the course of the negociation. His approbation of the Treaty gives me pleasure; not merely because his opinion corresponds with my own, but also from the Sentiments I entertain of his Judgment and Candour.”


Title: Philo Camillus No. 3, [12 August 1795]
From: “Philo Camillus”,Hamilton, Alexander
To:

[New York, August 12, 1795]

For the Argus
Cinna pursues his animadversions upon Camillus but he gives new proofs that he depends more on the prejudices than on the reason of his auditory. To represent Camillus as the abject apologist of Great Britain and the defamer of his own Country—to render him odious because he does not flatter and nourish public errors, but honestly and boldly tells his countrymen salutary though unpleasant truths—are evidently with Cinna the chief hope of his cause. Nor is he very wrong in the course he takes. Such props are necessary to him. But he ought to be more cautious in the employment of them, lest by the too free use he impair their efficacy. Does he not fear that these very obvious reflections may occur to a sensible people? Why is it that the opposers of the Treaty so constantly appeal to our passions, and to convince us they are in the right endeavour first to make us angry? Do they imagine that we can only feel, that we can not reason? Do they suppose that a man is best-fitted to judge in proportion as he is agitated and incensed? Or is it that they really dare not trust their cause to the sober result of fair discussion and calm reasoning? Is it that they desire to shut our ears to the wholesome advice of tried and faithful friends, by raising unmerited prejudices and resentments against them? Do they mean to lead us captive by our passions and thus to make us instruments of designs repugnant to our interests and subversive of our present happy condition?
Can Cinna seriously imagine, that he will be able to dupe a discerning people into a distrust of men, whose public and private conduct have been a uniform series of evidence of public and private integrity? Is he so weak as to suppose that his fellow Citizens will give credit to the gross suggestion that such men who have also been among the most steady and persevering defenders of their country against Great Britain have now become her partizans or advocates? Is it any proof of this, that this endeavour to shew that in particular questions arising subsequent to the peace there is reasonable ground of doubt whether the delinquency imputed to Great Britain has been as great as has been alleged and that there have been mutual faults? Are sincerity and plain dealing marks of want of friendship? Are they not rather proofs of the truest friendship of one that dares offer honest advice even at the hazard of displeasing?
In Courts, sycophants flatter the errors & prejudices of the Prince—in Republics sycophants flatter the errors and prejudices of the people. In both, honest and independent men are frequently obliged to tell unpalatable truths, which are well or ill received according to the virtue & good sense of those to whom they are addressed. Cinna knows that they are not always well received. He hopes this will be the case in the present instance, but he will probably be disappointed.
In an altercation between two individuals in which there were mutual faults who would deserve to be called the true friend? He who should tell one of the disputants of the faults on his part and advise him to moderation and amicable adjustment—or he who should assure him that his antagonist was intirely in the wrong that he had nothing to blame himself for & that his honor was concerned in pursuing the quarrel without relaxation at the peril of life & fortune?
Cinna, if he knows Camillus, knows that this is not the first time he has stemmed the current of prejudice and has been traduced and vilified for it. But experience on former occasions has taught him to believe that he may safely rely on the ultimate good sense of his fellow Citizens for a justification of his motives.
It is curious to observe an expedient, which has lately been adopted by the party to which Cinna belongs. They affect to brand their opponents with the charge of Toryism. Men, who in this state have for a long time upheld their power and by means of it amassed wealth, with the aid and support of a long list of tories—who even now count among their most zealous adherents men of this description

   Not only the standard bearers of public meetings but some of their Champions in print are notoriously of this class.

 & some of them of the most profligate character have the audacity to bring the charge of Toryism against a majority of the most conspicuous most tried and most determined Whigs of the Country. Can the Spirit of Whigghism hear this obloquy without indignation? Can these whom that generous spirit truly actuates endure an attempt to blast the characters of its most faithful votaries?
It cannot be: the people of America know the men who have acted a part in their public affairs and they know how to appreciate them. Their esteem will be an impenetrable shield against malice and detraction.
Camillus did not take the course which he has pursued of choice. It no doubt would have been more agreeable to him to have been silent on such topics. But the antagonists of the Treaty made it necessary to place the real state of the question before the people to enable them to judge of the justice of the virulent attack which has been made on our envoy for not attempting to extort from great Britain an acknowlegement of delinquency, though at the price of our national peace and though they who make the attack know in their consciences that such an attempt would not have been made with the least prospect of success.
But while Camillus has shewn that there have been breaches of the Treaty of peace on our part and that it is difficult to pronounce where the first breach lay —he has done nothing that warrants the imputations of having held up this country as “a faithless and treacherous nation” of having justified “a perfidious Prince for his breaches of faith and violences towards America.” From an imperfect social organization like ours under the consideration and from the strong impulse of particular circumstances and passions there may have been infractions of a particular Treaty by parts of the Community without amounting to what would fix on a nation the stigma of “faithless and treacherous.” The King of Great Britain may not have been as culpable in particular things as he has been charged to be and yet his conduct towards us in other respects may have been unjust and violent. Camillus evidently admits the latter to have been the case and asserts that we had suffered wrongs of such a nature as ought either to have been adjusted by reparation or avenged by reprisals. Enough has been replied to Cinna’s railing. It is time to come to his reasoning.
He in vain endeavours to derive a vindication of the Trespass act from a display of the aggravating circumstances of our war with Great Britain, another auxiliary pressed into the service to inflame the passions. Whatever may be the effect of these to excuse the act in foro conscientiœ, or in reference to the frailties of the human passions, it does nothing to prove that it was conformable with the principles of public right as received among nations, or that its operation did not infract the Treaty of peace. Nothing could be a clearer violation of the laws of War than to say that no military order of a public enemy should be pleaded in bar of a civil action of Trespass. Nothing could be a more certain contravention of a Treaty of Peace than to allow actions of Trespass to be maintained against the subjects of a public enemy for acts done during the war under his military authority and in exclusion of the plea of a military order. No matter what may have been the manner in which the war was carried on. Tis the essence of a Treaty of Peace to extinguish all questions on that head and to secure to each party amnesty and indemnity. Without this the state of war would continue and would be inextinguishable. Reason and writers agree that this amnesty & indemnity are always implied though in some treaties there are for greater caution express clauses; an example pertinent in reference to the article respecting the negroes to shew that there are sometimes express stipulations of what would be understood without them.
It is true as alleged that the plea of a military order might have been used to cover great abuses but what war does not produce multiplied abuses? The peace of nations requires nevertheless that these abuses should be submitted to rather than controvert the efficacy of military authority—because to do it is to subvert all the rights of War—and to deny all the effects of acquisition and capture in war.
But it is unlucky for the apology which is made for this act that it passed only seven days before the news of the provisional articles arrived in this Country and when it was known that negotiations for peace were going on and expected that the event would speedily take place —and also that the act could only have its effect when in consequence of that event and by an evacuation of the Southern District process could be issued upon it. It is certain that good men concurred in this act but this is only one proof among a myriad that the passions of a revolution are apt to hurry even good men into excesses.
Cinna recurring to the subterfuge which Camillus has noticed and refuted says “A mind not warped by prejudice nor disposed to deceive itself is at some difficulty to imagine how an act passed six months before the definitive Treaty was signed can be tortured into an infraction of that very Treaty.” But let me ask Cinna how on the principle of this argument the carrying away of the negroes which happened four months before the same signing could be any more a breach of the Treaty? The answer in each case must be that though positive restitutions by either party may have been postponed to the definitive Treaty, yet the provisional Treaty ought to have arrested the progress of all acts on either side contrary to its provisions—a principle however which bears hard upon our omission to act upon the fifth article till after the Definitive Treaty.
Mr. Jefferson has taken better ground than Cinna, by saying that the Trespass Act was not an infraction of the Treaty because it dated prior to the provisional articles. But if Camillus is right in the fact his answer to this is conclusive—namely that the Trespass Act continued to operate not only after the provisional but after the definitive Treaty down to [April 1787].
The plainest understanding however must perceive that there can be no difference whether an act passed before or after the Treaty if in fact it had an operation contrary to the Treaty. Tis the operation, the effect, not the date of the law, which is the material thing.
But Cinna following Mr. Jefferson labours to prove that it is a clear position that the Treaty did controul the laws of States which were contrary to it—and in the course of his remarks makes these assertions—1 that the proposition is so self evident to an American Lawyer, that without any proof it forces the same conviction upon his mind as the plainest axioms of Euclid—and 2d. that the Supreme Court of this State in the case of another act decided in conformity with this position.
Camillus has justly observed upon this position that it is a question of theory, and that whether true or not if there were laws of any States the operation of which did in fact contravene the Treaty, it was no justification to the Power whose Treaty with us was contravened that in the theory of our constitution Treaties were paramount to laws. That Power might reply—your theories are nothing to us—tis the fact alone which concerns us and tis enough that we know that laws of certain States do in fact contravene our Treaty.
Cinna replies—that he does not comprehend “what is meant by a law being a question of theory.” Camillus said, not that a law was a question of theory for this would be senseless, but that [it] is a question of theory whether a Treaty of the U States under the consideration did ipso facto controul a state law contrary thereto, or whether it only operated to lay an obligation on the state to repeal such law. This proposition is surely one not difficult to be comprehended, and it is manifestly true.
Camillus would probably not dispute with Cinna that the better opinion is that a Treaty ought to controul a state law, but still it is a question about which there was room for and did exist a diversity of opinion, and it may be added of practice.
Self evident as Cinna may affect to consider the proposition, he will find it is one on the principle of which theoretic Writers are not agreed. Rutherford in his Institutes of Natural Law (B II Chap III Page 61) speaking of the Legislative Power has this sentiment “In alliances leagues or conventions, if they bind any members (of the society) to give up their private claims or to do any thing which is inconsistent with the civil laws then in being its authority (The Legislative authority) makes them void of course unless it interposes to establish them.” This passage denies the power of Treaty to abrogate the antecedent civil laws as to the claims and acts of Individuals.
But not only was there room for difference of opinion, but it actually existed in a very great degree in many of the States. If Cinna be a lawyer and was at the bar of this State when the question on the Trespass Act was pending, he must know in his heart that the prevailing opinion of our professional men was against the position which he considers as self evident and that the contrary Doctrine was strenuously and seriously maintained in argument by some of our most respectable practicers.

He has thought fit to quote Mr. Hamilton as having in the case of Rutgers and Waddington relied on the Treaty against the law. He is right in this, but he might have added that for some time Mr. Hamilton was almost the only practicer who maintained the doctrine, and that by doing it he rendered himself not a little unpopular among that description of men with whom if I mistake not Cinna is connected in politics, and who reprobated it as a very heretical and unpatriotic opinion.
Camillus has also observed that it was understood that a Majority of our Supreme Court Bench would have maintained the principle of the Trespass act against the Treaty. Cinna asks how this was understood? Did the judges give Camillus an extrajudicial opinion?
Is it then a very uncommon thing for the opinions of Judges to be sounded by the bar in private conversations or on collateral questions in Court? Are judges always so much upon their guard that their leanings are not discerned by attentive observers before they are expressed by judicial determinations? Are there never clues to their opinions before they have pronounced them on the Bench?
An experienced professional man will be at no loss how to answer these questions—and will know that the opinions of Judges are often understood before hand with moral certainty—and one who was at our bar at the period referred to will also know that there was little doubt what would have been the determination of our Supreme Court on the point in question, and that it would have supported the objectionable clause of the act.

If we were to review how many suits were brought under this act in the Supreme Court & how many recoveries had—without any example of an obstacle from the Treaty, we should find a strong negative confirmation of the supposed disposition of the Bench and of the opinion of the Bar.
Nor is this any impeachment of the Court as Cinna would have it. It was a fair question whether a Treaty did or did not controul a legislative act—or whether it only operated to render it the duty of the Legislature to repeal it. And in the particular case, the provision of the Act was so special & peremptory, that it left no room for restraining constructions.
But Cinna asserts further that the Supreme Court did in another case admit the principle of the controuling influence of the Treaty—and he quotes a letter from our District Attorney in proof of it. Mr. Harrison it is true states that with regard to British Creditors the Superior Courts soon restrained the operation of the Act relative to debts due to persons within the enemies lines. But he does not affirm, and I am much mistaken if he would affirm, that the rest[r]aint in this particular was on the principle of the effect of the Treaty to controul the law.
There is good reason to believe that the Treaty was a collateral motive with the Court for giving a restrictive interpretation to the law but it is believed that they never admitted Cinna’s position as the ground of determination.

There were expressions in the law itself which countenanced a restrictive interpretation. The Title is “An Act relative to Debts due to persons within the enemy’s lines.” The Preamble relates, as objects of the act, to inhabitants of this state who had not remained within the enemy’s power who were indebted to others who did so remain. The creditors described in the body of the act are persons who remained with the enemy or went into or were sent within the enemy’s lines. It is evident that this act gives locality to the situation of the Creditors who were to be affected by it and could not fairly have been extended to British Creditors who were resident in the British dominions. It was natural too to understand the word inhabitants as equivalent to citizens and the mode of expression seems to look to inhabitant or citizen creditors as well as to inhabitant or Citizen Debtors; so that it was easy without resorting to the effect of the Treaty to consider British subjects as not within the act—by which construction an interference with the Treaty was avoided without admitting its controuling influence. The Courts shewed a uniform and a laudable disposition to narrow the operation of this act on account of its infraction of private contracts, and they were no doubt glad to find in the act itself the means of escaping from a violation of the Treaty.
This from the best sources of information is believed to be a faithful account of the transaction. It is at the same time one that does not confirm the representation of Cinna. The further observation will be pursued in a subsequent paper.
Philo Camillus


Title: Hamilton-Oneida Academy Mortgage, [15 August 1795]
From: Hamilton-Oneida Academy,Hamilton, Alexander
To:

[August 15, 1795.] “Be it remembered that on the fifteenth day of August in the Year one thousand seven hundred and ninety five, The Trustees of Hamilton Oneida Academy, to wit Alexander Hamilton, Eli Bristoll, Erastus Clark, James Dean, Moses Foot, Sewall Hopkins, Thomas R. Gold, Michael Myers, Jonas Platt, Jedediah Sanger, John Sergeant, Timothy Tuttle, Samuel Wells, Asahel S. Norton and Joel Bradley … for securing The Payment of seven hundred Dollars within two Years from the twenty ninth day of July 1795, with lawful Interest annually, Have mortgaged unto Erastus Clark … and Jonas Platt and Thomas R. Gold … two certain Pieces, Parcels or Tracts of Land lying in … Town of Paris on a large Tract of Land granted to the Rev. Samuel Kirkland.…”


Title: To Alexander Hamilton from Edmund Randolph, 16 August 1795
From: Randolph, Edmund
To: Hamilton, Alexander

Philadelphia August 16. 1795
Dear sir

I expected to have the pleasure of seeing you here at the supreme court; when I meant to Enter into, a full conversation with you. But being disappointed, I shall only beg you to read a letter, which I have this day written to Mr. Jay; and requested him to shew to you. If I do not mistake, your ideas and mine were not very different as to the provision-order
I am dear sir with real esteem and regard yr. mo. ob. serv.
Edm: Randolph.


Title: Philo Camillus No. 4, [19 August 1795]
From: “Philo Camillus”,Hamilton, Alexander
To:

[New York, August 19, 1795]

For the Argus
Camillus has stated several infractions of the Treaty of peace by us, besides that of the Trespass act, which according to the solution given by our own conduct to the question whether performance was to date from the provisional or definitive Treaty must have been prior to the British infraction by the detention of the posts —(viz) 1   An Act of South Carolina of March 26th 1784 suspending the recovering of British Debts for nine months and allowing them then to be recovered only in four yearly installments. 2   An act of this state of the 12 of May 1784 confirming all confiscations before made notwithstanding errors in the proceedings and taking away the writ of error. 3   Acts of Virginia passed during the war which prohibitted the recovery of British debts and which according to the testimony of the General Assembly of Virginia contained in two several acts continued to operate till after the year 1787.
To all these acts Cinna gives one general answer in substance this “that it was a clear principle of Constitutional Law, that the Treaty controuled all laws of the States inconsistent with it.” The absurdity of opposing this theoretic dogma, this speculative rule, to actual operating contraventions has been more than once pointed out. It may be likened to the conduct of the Physician who when he was assured that his patient was dead attempted to prove that according to the principles of an infallible theory it was impossible he should die after the remedies which had been administered. Let inquiry be made if the act of South Carolina did not go into full operation from the time it was passed. Let it be examined if a single writ of error has been brought and maintained since the act of this state of May 1784. If there be an instance of a single judgment rendered in a superior court of Virginia in favour of a British Creditor where the question between the law and the Treaty has fairly arisen, during the period referred to, let it be produced. The result of inquiry in each of the cases will confirm the fact that the laws cited did operate in contravention of the Treaty.
As to Virginia, no man who understands the English language will dispute that the acts quoted attest, as far as the knowlege and opinion of the Legislature of Virginia went, this fact—that the acts of that State prohibitting the recovery of British Debts did continue to operate notwithstanding the Treaty. This I affirm is such high evidence of the fact that nothing short of solemn decisions of the Superior Courts to the contrary can overthrow it.
It is in vain that Cinna endeavours to get rid of the force of this testimony by arguing that it is not of the legislative province to pronounce what is the effect of a law and that consequently the opinion of the legislature of Virginia as to the operation of its laws is not evidence of the truth. Cinna by this observation confounds two things, the legal effect and the actual effect. The opinion of a legislature may not always be valid evidence of the first but it is very high and authoritative evidence of the last. It is one thing to consider them as judges of a principle of law—another to consider them as witnesses of a matter of fact. In the last character who can have better pretensions? Who can be presumed better to know the state of a fact in which the feelings and interests of a community are much concerned than the legislative representatives of that community? It is in this sense Camillus quotes and relies upon the two acts of Virginia; the first of which by necessary implication and the last of which in express terms informs that its acts had prevented the recovery of Debts due to British subjects according to the true intent and meaning of the Treaty of Peace. The words are these “Be it enacted by the General Assembly that such of the acts or parts of acts of the legislature of this Commonwealth as have prevented or may prevent the recovery of debts due to British subjects according to the true intent and meaning of the Treaty of Peace be and are hereby repealed” —to which however a proviso is added suspending the repeal till the British infractions respecting the Negroes & the posts were repaired. This provision is a confirmation that the General Assembly considered the fact to be that its laws did obstruct the recovery of debts. The testimony of the legislature of Virginia to the matter of fact is therefore complete and peremptory; and it is [in] this light as before observed that their acts are quoted. Can it be believed that they could be mistaken about a fact, which if it existed at all had existed four years? Or can we suppose that they meant to practice a deception upon Congress upon Great Britain and upon their own Citizens?
It may not be useless to observe that Mr. Jefferson himself understood the meaning of the Legislature of Virginia, in their act of June 1784 in the same sense with Camillus. He states it as “resolving, that the Courts shall be opened to British suits as soon as reparation shall be made &c.” The direct inference is that the courts were not then open to British suits.
One would have imagined that Mr. Jefferson when he undertook to contradict this solemn and reiterated testimony of the Legislature of Virginia would have drawn the proofs of his contradiction from no sources inferior to the records of the courts of Virginia. Nothing less than this could be satisfactory. The non production of such proofs is an argument that they did not exist, and if they did not exist, it is a strong negative confirmation of the declaration of the Virginia Legislature.
What does Mr. Jefferson oppose to it? Two letters, in answer to inquiries made by him upon the spur of the occasion, one from Mr. Monroe, a senator, the other from Mr. Giles a representative.
Mr. Monroe speaks of a case in April 1791 in the District Court of Fredericksburgh where the law of the state was pleaded in bar of the Debt and the plea overruled.

The case was that one Mitchel a native of Great Britain residing and trading in Virginia, conveyed his debts and other property before the War to the use of his Creditors in Great Britain and one Creditor in Virginia. It was argued for the Defendant that this was a case provided for by the Treaty & prohibited by the law, but judgment was given for the plaintiffs and other jugments were entered in favour of the same parties in that and a subsequent term.
But we are not told on what principle judgment was given for the plaintiffs. It does not appear in what situation Mitchell was during the War. Though a native of Great Britain his situation & conduct might have rendered him a citizen of the U States which is a very common case. If this was not the case, the judgment might have proceeded on the ground that among the creditors for whose benefit the assignment was made there was one citizen and that this interest of a citizen took the case out of the prohibitory acts. In fine nothing precise being said we are left to conjecture what we please.
It is to be observed likewise, that the case cited was subsequent to the present constitution of the U States, which expressly declares that Treaties shall be supreme laws of the land and which was ratified by the People of the several States, long posterior to the impeding Acts. The Court may have considered this express subsequent provision as a repeal of preexisting contrary laws. It in fact did settle the theoretic question by an express constitutional declaration. And it is to be observed that this provision is new & peculiar to that constitution & has been made an objection to it.
Mr. Monroe relates further that it was always the opinion of the ablest counsel at the bar that British Debts were recoverable, that no law prohibited it and if it were otherwise, that the Treaty would control it. And he adds that since the establishment of the present Constitution of the U States he has heared several judges say that they had entertained the same opinion.
But amidst these vague assertions of the opinions of lawyers and judges, Mr Monroe confesses one fact which infinitely outweighs all that he has put in the opposite scale. It is this—That the British Merchants declined generally bringing suits prior to the establishment of the present National Government. What does this prove? Demonstrably that they were advised that it would be useless to bring them—that no recovery could be had. Can we believe that individual interest did not lead them to take the best opinions to be had, and can we doubt from their passiveness that these opinions were against the probability of success?
The neglect of the British Merchants to bring suits for the long term of six or seven years is a decisive corroboration that the opinion of the bar of Virginia coincided with that of the Legislature and that the effect of the prohibitory laws of that State was to obstruct the recovery of British Debts.
As to Mr. Giles’ letter it conveys no real information. It totally omits dates, and leaves us to conjecture whether the incidents stated happened prior or subsequent to the present constitution of the U States and were or were not an effect of that constitution. To reconcile him with Mr. Monroe we must understand him as speaking of things subsequent.
Surely we must be convinced that these are feeble authorities against the declarations of two solemn acts of the legislature of Virginia; and considering the industry displayed by Mr. Jefferson on the occasion we must regard the weakness of his evidence on this point as a clear indication of his embarrassment.
I pass by all the testimonies produced from the other states. They only prove that in several of the states, the theoretic position that Treaties controuled the local laws was reduced to practice. But they do not prove that this was the case in all of them. From several of the States there is no such testimony.
Discarding what relates to Virginia—the two acts which have been mentioned of South Carolina and New York of the 26 March & 12 May 1784 are conclusive as to the point of there having been contraventions on our part prior to that of the detention of the posts, if performance was to date from the definitive Treaty; because the ratification by us did not arrive in England till the 28 of May of that year and the exchange of ratifications was about the beginning of June.
The reason given by Camillus why performance ought to date from the definitive Treaty is unanswerable. It is this that by our own conduct in not acting upon the provisional Treaty especially the fifth article we practically determined that performance was not to date from that Treaty—consequently that it was to date from the definitive Treaty. This too is the best ground to be taken for us; since upon a different principle there would come home to Congress itself an infraction of the Treaty from the first moment of its Ratification.
A Writer signed Philo-Cinna has endeavoured to put Camillus at variance with himself, for notwithstanding his conclusion ’tis evident that he means to have it understood that Mr. Hamilton & Camillus are the same person. For argument sake be it so—and let us see if he has made out the contradiction.
Camillus says, “that our Government has constantly charged as breaches of the Treaty the two particulars of carrying away the Negroes and detaining the posts but that it is believed to be not true that it has uniformly charged them as first breaches of the Treaty—that as far as is recollected this ground was never formally or explicitly taken by our Government till in the letter quoted from Mr. Jefferson to Mr. Hammond.”

May 26, 1783, a Resolution was moved by Mr. Hamilton in Congress which recites that “a considerable number of negroes belonging to Citizens of these States had been carried off by the British contrary to the true intent and meaning of the provisional articles” and instructs the Ministers of the US for negotiating peace in Europe to remonstrate thereon to the Court of G Britain and to take proper measures for obtaining reparation.
Upon which Philo Cinna makes this sage comment. “If then Congress as early as May 1783 complained of this infraction they must have regarded it as the first breach; for Great Britain had not yet had time to hear of what was passing in this Country on the subject of the Treaty, much less to complain of any violation of our part.”
Since Camillus affirms that our Government has constantly charged the carrying away the negroes as a Breach of the Treaty when he adds that it did not uniformly charge it as a first breach, and that this ground was for the first time formally and explicitly taken by Mr. Jefferson—to reconcile him with himself in the same paragraph, he must necessarily be translated thus—“Though from the beginning our Government charged the carrying away of the negroes as a breach of Treaty, yet till it was done by Mr. Jefferson, it never formally and explicitly raised the question whether this was or was not the first breach of the Treaty. It is one thing to charge a matter as a breach of Treaty by one party, another to affirm formally and explicitly there it was the first breach committed by either party.”
Mr. Hamilton’s motion only does the first; it only charges the act in question as a breach of the Treaty—it is intirely silent on the point whether it was or not the first breach.
But Philo-Cinna resorts to an inference to make it speak this last language. He says this must have been the intent, because Great Britain had not yet had time to complain of a violation on our part. Thus he substitutes an implication, founded upon a reason good or bad of his own, for a formal and explicit allegation of a thing. This is a sample of the logic of the party.
But his reason for his implication is not a good one. Mr. Hamilton and Congress knew that the Trespass act existed of a prior date, and, if my memory serves me as to dates, that it had been remonstrated against the British Commander in Chief as inconsistent with the Treaty. This was sufficient reason for silence as to the first breach.
But the argument that Great Britain had not had time to plan turns against its object. For the question who had committed the first breach of the Treaty was a relative one, which could not have been raised till mutual infractions had been charged and consequently till Great Britain had had time to complain. A solution of that question could therefore not be implied in Mr. Hamilton’s motion or the resolution of Congress upon it.
The same observations apply to the other acts quoted by Philo Cinna. They all of them charge the carrying away of the negroes as a breach, but they are all of them equally silent on the point whether it was a first breach of the Treaty.
Philo-Cinna endeavours to fix another inconsistency upon the supposed Camillus. He represents the having charged the carrying away the negroes as a Breach of the Treaty to be inconsistent with the doctrine that performance as to the restitution of the posts, was to date from the definitive Treaty. In a former paper, I have noticed an important distinction. The Provisional Treaty was to arrest the doing of any acts contrary to the spirit of its several provisions, but acts of restitution were to wait for the definitive Treaty.
But I will tell Philo-Cinna something which he may not know. I have understood that it was in fact Mr. Hamilton’s policy to establish the construction that execution was to date from the Provisional Treaty; for besides that he thought this most agreeable to just & liberal procedure, he foresaw that the contrary conduct on our part would authorise the other party to delay the surrender of the posts, to the prejudice of our interests. Accordingly he made a formal motion to engage Congress to act upon the   article of the Treaty, but his motion was negatived almost unanimously. Thus it appears that Congress differed from Mr. Hamilton and thereby sanctionned what has been the construction of Great Britain.
This is only one of the instances, in which if Mr. Hamilton’s opinions had prevailed, we might be much less embarrassed than we now are as to the question who committed the first breach of the Treaty.
Another instance of incongruity between Camillus and Mr. Hamilton has been insinuated. It is said that the allegations contained in the motion which has been cited is inconsistent with the doctrine maintained by Camillus with regard to the meaning of the article concerning negroes. But to this different answers may be given each of which is satisfactory.
First Camillus has not given a direct opinion of his own as to the meaning of that article, he has only stated the arguments which support the British Construction, and has drawn this conclusion, that it is a very doubtful point whether that be right or wrong.
Secondly—Mr. Hamilton’s motion in Congress is no evidence that he did not then consider it in the same light with Camillus—that is, as a very doubtful point. In a case where an article admitted of two constructions, one in which the interest in some degree and the feelings in a greater degree of a large part of our Country was concerned—a member of Congress, though he might think it doubtful, which of the two constructions was right would naturally assert that which was advantageous to ourselves, in order to endeavour to obtain reparation for what upon our construction was an infraction. And In proportion as it might be his policy to engage Congress to carry the Treaty on their part into execution, would be his zeal to assert a construction favourable to our pretensions.
But thirdly, if the motion in question was dictated by an opinion at the time produced by the contagion of a general current of opinion, that ours was the better construction—it would not follow that a candid man, upon more mature reflection and after hearing and weighing the arguments of the other side, might not be convinced and ready to acknowledge, that the question was very doubtful, and that it was very possible his first opinion might be erroneous. It is the prerogative only of the Democratic Society and their allies to be infallible.
Philo Camillus