Title: The Defence No. XXXIII, [19 December 1795]
From: “Camillus”,Hamilton, Alexander
To:

[New York, December 19, 1795]

The course thus far pursued in the discussion of the 18th article has inverted the order of it as it stands in the Treaty. It is composed of three clauses the two last of which have been first examined. I thought it adviseable in the outset to dispose of an objection which has been the principal source of clamour.
The first clause, or that which remains to be examined, enumerates the articles which it is agreed shall be deemed contraband of war. These are “all arms and implements serving for the purpose of war such as cannon, muskets, mortars, petards, bombs, grenadoers, carcasses, saucisses, carriages for cannon, musket rests, bandoliers, gun powder, match, salt petre, ball, pike, swords head pieces, cuirasses, halberts, lances, javelins, horse furniture, ho[l]sters, belts and generally all other implements of War; as also timber for ship building, tar or rosin, copper in sheets, sails, hemp and cordage, and generally whatever may serve directly to the equipment of Vessels, unwrought iron & fir planks only excepted.” All which articles are declared to be just objects of confiscation, when attempted to be carried to an enemy of either party.
It is well understood that War abridges the liberty of Trade of neutral nations; and that it is not lawful for them to supply either of two belligerent parties with any article deemed contraband of war nor may they supply any article whatever to a place besieged blockaded or invested. The former case includes a special catalogue of articles which have an immediate reference to war. The latter extends to all kinds of goods and merchandizes. The penalty in both cases is confiscation.
These positions have not been disputed. The only question which has been or can be raised must respect the enumeration of the articles which are to be considered as contraband.
In comparing the enumeration in the present Treaty with that of our former Treaties we find the differences to be these. Our former treaties include “horses” and one of them “soldiers” which our present does not; but our present includes “timber for ship building tar or resin copper in sheets sails hemp and cordage and generally whatever may serve directly to the equipment of vessels unwrought iron and fir planks only excepted” which are not to be found in our former treaties.
It is alleged that the including of these articles is an extension of the list of contraband beyond the limit of the modern law of nations; in support of which allegation it is affirmed that they have been excluded by the uniform tenor of the Treaties which have been formed for more than a Century past.
Though this position will not upon careful examination appear correct; yet it is so far founded as to claim an acknowlegement, that the article under consideration has in this instance pursued the rigor of the law of nations. ’Twas to this I alluded, when I observed that it contained one unpleasant ingredient.
Though it be true, that far the greater proportion of modern Treaties exclude naval stores or articles for Ship building; yet this is not universally the fact.
By the third article of the Treaty of alliance and commerce between GB & Denmark in 1670 the parties agree “not to furnish the enemies of each other with any provisions of War, as soldiers arms engines guns ships or other necessaries for the use of War nor to suffer the same to be furnished by their subjects.” An explanation of this article was made by a Convention dated the 4 of July 1780 which after enumerating as contraband the usual catalogue of military implements adds in the precise terms of our article “as also timber for shipbuilding, tar rosin, copper in sheets sails hemp and cordage and generally whatever may serve directly to the equipment of vessels, unwrought iron and fir planks only excepted.”
In a series of Treaties between GBritain and Portugal down to the year 1703 I do not discover that there has ever been a regulation of the articles, which are to be treated as contraband between those powers.
An⟨d⟩ between Sweden and Great Britain the 11th article of a Treaty entered into in 1661 (and still in force unaltered, though a subsequent Commercial Treaty was made between those powers as late as 1766) subjects to confiscation generally all articles called contraband, and especially money provisions &c. The specification not being complete, naval stores are left upon the open ground of the law of nations, but money and provisions are superadded. This latitude would leave little doubt as to the intention to include naval stores.

   Note. An opinion has been propagated that Sweden armed in concert with Denmark in order to maintain the neutral right of carrying corn and Flour to France, in opposition to the Convention of March 1793, between Great Britain and Russia, to prevent the same; and that in consequence of this proceeding, the Remonstrances of these Powers have proved more successfull than we have been, in obtaining satisfaction from Great Britain.

   This opinion is throughout an error, made use of by those whose persevering aim has been by silencing truth, reason, and moderation, and inflaming the angry passions of the community to involve the Country in anarchy and war. The authors of this imposture, as well as the exalted Patriots who have seen in the memorial of our Envoy the humiliation of our Country are referred to “a Collection of State papers relative to the War against France” published by Debret, in 1794. The perusal of the Swedish State papers, as well as the memorials of the able and prudent Bernstorff may teach these gentlemen a little of what is deemed good manners on these occasions.

   So far from even remonstrating, much less arming on account of the British instruction of June 1793, when that order was notified at Stockholm by the British Resident there, the Government of Sweden by their Resident at London acknowledge in terms too respectful to be repeated in the hearing of our exclusive Patriots, that Sweden was perfectly satisfied with the instruction—since instead of payment which the order insured, all provisions, in virtue of an existing treaty between the two nations were liable to confiscation, when seized on their way to an enemy.

   This Note is added for the purpose of refuting a popular error, and not to vindicate the instruction alluded to which I consider as an injury to the rights of neutral nations that has not been justified by the answers that have been given by Great Britain to the American and Danish memorials.

It appears from these specimens, that there is not a perfect uniformity in the Conventions between Nations, and that no purely positive law of nations can be deduced from that source.
If we call to our aid the principles of reason and natural justice which are the great foundations of the law of nations, we shall not discover in this instance data as certain as could be wished for a satisfactory conclusion, and the soundest determination which we can adopt will be that beyond a certain point, the question is in a great degree arbitrary, and must depend materially upon conventional regulation between nation and nation. Hence it is that there is so great diversity in the stipulations of different Treaties, on this point, indicating that there is no absolute rule. Hence also it is that several nations at different times being at war have thought themselves authorised to regulate by public declaration the articles which they would consider and treat as contraband.
The opinions of Writers will be found to support the article as it stands in the particular, which is now the subject of discussion.
Vatel we have before seen (B III C VII § 112) expressly ranks naval stores and timber under the denomination of contraband goods.
Heinecius (de navibus &c Chap I § X. XI & XIV) accords in the same proposition to the extent of whatsoever appertains to the eqipment of Vessels.

   Vela, Restes et si quœ alia ad apparatum nauticum pertinent.

Bynkershoeck is less explicit. After laying it down as the general rule that naval stores or the materials of Ships are not contraband, he proceeds thus: “Yet it sometimes happens that the materials of ships may be prohibitted, if an enemy is in great want of them and without them cannot conveniently carry on the War”

   Quandoque tamen accidit ut & navium materia prohibeatur, si hostis ea quam maxime indigeat et absque ea commode bellum gerere haud possit. Quæstionum Juris Publici L I Cap X Page 80.

 and he afterwards cites with approbation several edicts or proclamations which the States General in different Wars with different nations have published, declaring those articles contraband—thus referring it to the belligerent party to judge of and pronounce the cases when they may rightfully be deemed so. And the same idea seems to have been adopted by Grotius

   B III C I § V

 and some other writers on public law. I have not met with one whose opinion excludes naval stores from the list of contraband.
Grotius in discussing this question divides goods into three classes I  those which are of use only in war as arms &c  2  those which serve only for pleasure  3  those useful for peaceable as well as warlike purposes “as money provisions ships and naval stores” concerning which he argues in substance that the first class are clearly contraband, that the second class are clearly not contraband and that the third class may or may not be so according to the state & circumstances of the war; alleging that if necessary to our defence they may be intercepted but upon condition of restitution unless there be just cause to the contrary; which just cause is explained by the example of sending them to a besieged or blockaded place.
The reasoning about this third class has a very inconvenient latitude. It subjects the Trade of neutral nations too extensively to the discretion of belligerent powers and yet there is a serious embarrassment about drawing the true line; one which will duely conciliate the safety of the belligerent with that of the neutral party.
What definition of contraband, consulting reason alone, shall we adopt? Shall we say that none but articles peculiar to war ought to receive this denomination? But is even powder exclusively applicable to War? Are nitre and surphur its chief ingredients peculiar to War? Are they not all useful for other purposes; some of them, in medicine & other important arts? Shall we say that none but articles prepared or organised for war as their primary object ought to have that character? But what substantial difference can reason know between the supply to our enemy of powder, and that of sulphur and salt petre, the easily convertible materials of this mischievous compound?
How would either of these definitions or any other comport with what those of our treaties, which are thought unexceptionable in this particular, have regulated or with what is common in the Treaties between other nations? Under which of them shall we bring horses and their furniture?
If we say that in wars by land these are instruments little less important, than men and for that reason ought to be comprehended it may be asked in return what can be more necessary in Wars by sea than the materials of Ships, and why should they not for the like reason be equally comprehended?
In wars between maritime nations, who transfer its calamities from the land to the Ocean and wage their most furious conflicts on that element, whose dominions cannot be attacked or defended without a superiority in naval strength, who moreover possess distant territories, the protection & commercial advantages of which depend upon the existence & support of navies, it is difficult to maintain that it is against reason or against those principles which regulate the description of contraband, to consider as such the materials which appertain to the construction and equipment of Ships.
It is not a sufficient objection that these articles are useful for other purposes & especially for those of maritime commerce. Horses are of primary utility in Agriculture; and it has been seen that there are other articles indisputably on the list of contraband which are intirely within the principle of that objection.
Rutherford, a sensible modern Writer,

   Institutes of Natural Law Book II Chap IX § XIX

 after truly observing “that the notion of contraband goods is of some latitude, so that it is not easy precisely to determine what are and what are not of this sort—that all warlike stores are certainly contraband but that still the question returns what are to be reckoned warlike stores”—after noticing the division of articles by Grotius and the difficulties with regard to the third class—draws this conclusion that “Where a war is carried on by sea as well as by land not only ships of war which are already built but the materials for building or repairing of Ships will come under the notion of warlike stores.” This is a precise idea and it must be confessed, on principle, not an irrational one.
If we resort to the opinions which have been entertained & evidenced in our country they will be found to have given great extent to the idea of contraband. Congress by an act of May 8th 1777 establishing the form of Commissions for Commanders of Privateers authorise them “to attack subdue and take all ships and other vessels whatsoever carrying soldiers arms gunpowder ammunition provisions or any other contraband goods to any of the British armies or ships of War employed against the U States.” And in their act of the 27 of November 1780 acceding in part to the rule of the armed neutrality they declare that contraband shall be thereafter confined to the articles contained under this character in our Treaty with France, indicating, by this, their opinion that the list of those articles is abriged by that Treaty. If the first mentioned act was well founded (and there are strong reasons for it) it establishes that even provisions may be contraband, if going directly to invading fleets & armies; which affords an instance of their being so, in addition to the cases of places besieged blockaded or invested. And as to naval stores I do not fear to be mistaken when I assert a belief that the common opinion of those persons in this country whose contemplation had embraced the subject included them in the catalogue of contraband.
Nevertheless from the number of modern Treaties which exclude from that list naval stores, and moreover from the manifest interest of Nations truly considered to narrow the rights of war in favour of those of peace, this clause of the treaty, which takes a different route, is to be regretted as pursuing the Rigor of the law of Nations. Still however it cannot be objected to as a departure from that law; and agreeing with the course observed by Great Britain antecedent to the Treaty, it does not place our trade in these articles upon a worse footing than it was independently of the Treaty.
The period of the negotiation was more unpropitious to a change for the better. In the midst of any maritime war a belligerent nation enjoying a naval superiority was likely to have been tenacious of a right which she supposed herself to possess to intercept naval supplies to her enemy. But in a war in which it was more than ordinarily possible that the independent existence of a Nation might depend on the retaining that naval superiority, it was to have been foreseen that she would not consent to relinquish such a right. The alternative was to insert the article as it stands or to omit it wholly.
Had it been omitted the condition of naval stores would have been the same as with it. But our Merchants would then have continued to be exposed to uncertain risks, which is always a great inconvenience. It is desireable in similar cases to have a fixed rule. Merchants can then accommodate their speculations to the rule; and causes of national contention are avoided. It is in this view to be regretted that the cases when provisions may be treated as contraband could not have been agreed upon; but as this was impracticable, the next best thing has been done, by establishing the certainty of compensation in all such cases. This gives one important species of security, obviates one source of contention. And if really there may be other cases than the admitted ones, in which provisions can fairly be deemed contraband, (as the one designated by the act of Congress of May 1777) the securing of compensation was truly a point gained by the article.
But while I confess that the including of naval stores among contraband articles is an ineligible feature of the Treaty, I ought to declare that its consequences to the interests of the U States, as it regards the Trade in those articles in time of War, do not appear to me important. War between other nations, when we are at peace, will always increase the demand for our bottoms so as to require much additional building of Vessels and probably to produce a more beneficial species of employment of the naval stores our country affords, than that of their exportation for sale.
The adversaries of the Treaty are eagle-eyed to spy out instances in which it omits any favourable minutiae which are found in our other Treaties but they forget to ballance the account by particulars which distinguish it favourably from those Treaties. Of this nature is the omission of horses from the list of contraband, and still more the salutary regulations with regard to vessels & their cargoes going to places besieged blockaded or invested. I do not discover that these useful provisions, or their equivalents, are in either of our Treaties with France Holland or Sweden.
It has been said in reference to this article that “whenever the law of Nations has been a topic for consideration, the result of the Treaty accommodates Great Britain in relation to one or both of the republics at War with her as well as in the abandonment of the rights and interests of the U States.” And the following examples are given to each of which will be annexed a reply.
I   “American Vessels bound to Great Britain are protected by sea papers against French and Dutch searches: but when bound to France or Holland are left exposed to British searchers without regard to Ships papers.” The truth of this proposition depends on another, which is, that the sea papers are to be absolutely conclusive; but reasons have been given for doubting this construction, which it has been remarked does not obtain in practice. And it is certainly a violent one, in as much as it puts it in the power of the neutral to defeat the rights of the belligerent party in points of great consequence to its safety.
II   “American provisions in American vessels bound to the enemies of Great Britain are left by the treaty to the seizure and use of Great Britain; but provisions whether American or not in American vessels cannot be touched by the enemies of Great Britain.” The construction of the Treaty upon which this difference is supposed has been demonstrated to be erroneous. The difference therefore does not exist.
III   “British property in American vessels is not subject to French or Dutch confiscation. French or Dutch property in American Vessels is subject to British confiscation.” This was the case before the Treaty, which makes no alteration in the matter. Moreover it is counterballanced by this circumstance—that American property in British vessels is subject to confiscation by France or Holland, but American property in French or Dutch vessels is not subject to confiscation by Great Britain.

IV   “Articles of Ship building bound to the enemies of Great Britain for the equipment of vessels of Trade only are contraband—bound to Great Britain for the equipment of vessels of War are not contraband.” This also was the case before the Treaty, which consequently has not in this particular more than in the former produced any benefit to one party to the prejudice of the other. I forbear to dwell upon the article of horses as falling under a contrary discrimination; nor shall I insist on the additional circumstance that all American goods not generally contraband, if going to a place besieged blockaded or invested by French or Dutch forces are liable to confiscation by France or Holland; if going to a place besieged blockaded or invested by British forces are not liable to confiscation by Great Britain.
Differences of these several kinds are the accidental results of the varying views of different contracting powers; and from slender grounds of blame or praise of the respective contracts made with them.
The form of the criticism last stated leaves little doubt that it was designed to insinuate an intention in this article to favour the Monarchy of G Britain at the expence of the Republics of France & Holland. The candour of it may be judged of by the two facts, first that it makes no alteration in this view in the antecedent state of things, and 2dly That the relative situation of Holland as the enemy of Great Britain is subsequent to the adjustment of the article.

Camillus


Title: To Alexander Hamilton from John Lowell, Junior, 19 December 1795
From: Lowell, John, Jr.
To: Hamilton, Alexander

Boston, December 19, 1795. “I … enclose to you two notes of hand against two Gentlemen in New York for 750 dollars each. The money you perceive ought to have been long since paid and I am informed that the nonpayment has not been occasioned by inability. The notes were put into my hands to collect under the expectation that ye parties would have been in this place some time since. Having no acquaintance with any profissional Gentlemen in your City, I have taken ye liberty to forward them to you.…”


Title: To Alexander Hamilton from George Washington, 22 December 1795
From: Washington, George
To: Hamilton, Alexander

My dear Sir,
Phila. 22d. Decr. 1795.

Have you seen or heard more of young Fayette since you last wrote to me on that subject? Where did he go to? Did you deliver him the letter I sent under cover to you for him? His case gives me pain, and I do not know how to get relieved from it. His sensibility I fear is hurt, by his not acknowledging the receipt of my letter to him; and yet, if considerations of a higher nature are opposed to a more uncovert countenance, it must be submitted to. If he wants money, I am ready to furnish it.
’Ere this, I presume you have seen the long promised vindication, or rather accusation. What do you think of it and what notice should be taken of it? You are fully acquainted with my Sentiments relative to the rival & warring powers of F. & E; and have heard as strong sentiments from me with respect to both, as ever he did. His declaration, that he was always opposed to the Commercial part of the Negociation is as impudent and insolent an assertion, as it is false, if he means more than that it was contingent (as the Instructions to Mr. Jay declare) and to apply the knowledge of it to me. But if you have seen his performence, I shall leave you to judge of it, without any comments of mine.
With much sincerity & truth I am always & Affectly. Yours

Go: Washington
Alexr. Hamilton Esqr.


Title: [The Defence No. XXXIV], [23 December 1795]
From: “Camillus”,King, Rufus
To:

[New York, December 23, 1795]


Title: [The Defence No. XXXV], [26 December 1795]
From: “Camillus”,King, Rufus
To:

[New York, December 26, 1795]


Title: From Alexander Hamilton to Timothy Pickering, 26 December 1795
From: Hamilton, Alexander
To: Pickering, Timothy

Dear Sir:
New York, Dec. 26th, 1795.

Mr. Cutting has given to me a perusal of his papers, respecting his agency in revealing our seamen from British impress. He wished my opinion professionally respecting the validity of his claim, which I declined to give, because it would contradict certain maxims I have prescribed to myself with regard to public questions pending while I was part of the administration.
But there are reasons which induce me to convey to you privately my view of the subject.
It appears to me clearly established that Mr. Cutting rendered a very meritorious and an important service to the United States. Its value is not to be estimated merely by the number of persons relieved, but by the influence of the exertion upon other cases—indeed upon our trade generally with the English ports at the juncture. It is also a service very interesting to the feelings of all our citizens—and there was certainly much good zeal and address displayed upon the occasion. It sufficiently appears, too, that the nature of the case must have involved considerable expense, and in ways which frequently would not admit of after authentication.

Under these circumstances I feel a strong impression that it is of the policy as well as of the justice of the government to go lengths in giving satisfaction to Mr. Cutting. ’Tis a case which calls for liberality, not scrupulous or prying investigation. Mr. Cutting’s own testimony from necessity ought to be received as to expenditures. This observation, to be sure, has reasonable limits. But still the case demands that the testimony should be received with influential effect.
Mr. Dorhman is an example of similar compensation in circumstances not unlike. Our own citizen has not an inferior claim.
What has been hitherto done for Mr. Cutting appears to be manifestly inadequate. If it could be supposed that there was risk of doing too much, it is of the reputation of the government that the error should be on that side. Care ought to be taken that a zealous citizen, who has rendered real service, should not be out of pocket, and out of reputation, too, by his bargain. I include a reasonable compensation for service as well as reimbursement of expenses.
These ideas will, I am sure, be received as they are intended.


Title: From Alexander Hamilton to George Washington, [27–30 December 1795]
From: Hamilton, Alexander
To: Washington, George

Sir
[New York, December 27–30, 1795]

I have the pleasure to send you enclosed two letters one from Young La Fayette the other from his Preceptor. They appear reconciled to some further delay.
I take the liberty to inclose copy of a letter to the Secy of State respecting Mr. Cutting. I do not know upon the whole what sort of a man Mr. Cutting is, and I have heared unfavourable whispers. But as to the particular subject of his ⟨claim⟩ I really think it deserves an indulgent consideration, and that it is expedient & right to favour it to a liberal extent. Some reflections have made me think it adviseable to place the matter under your eye. Neither the Secy of State nor Mr. Cutting will be informed of this.
I wrote you a few lines two or three days ago in answer to your letter concerning Mr. Randolph’s pamphlet.
Yr. very respectful & Affect servt

A Hamilton
The President of the US


Title: American Jacobins, [1795–1796]
From: Hamilton, Alexander
To:

[1795–1796]

For the Minerva
It is remarkable how uniform our Jacobins have been in blaming and vilifying our own Government and in excusing and justifying the conduct of the French towards us. Before there was ever the pretence of any subject of complaint against this Country France violated that article of her Treaty with us which stipulates that free ships shall make free goods.—This breach of Treaty was apologised for by the necessity of putting herself upon an equal footing with her enemies. Genet came to this Country with the affectation of not desiring to embark us in the war—and yet he did all in his power by indirect means to drag us into it—He insulted our Government and set it at defiance. He endeavoured without the national sanction to carry on expeditions against the possessions of neighbouring nations with whom we were at peace. He did not claim our participation in the war on the score of any obligation we were under to take part in it; but he endeavoured to seduce the passions of the people, to create a scism between them and their government, to disorganise and thus to extort from the passions of our Citizens what never could have been expected from the rational policy of our public Councils—Yet our Jacobins vindicated Genet and calumniatd our Government—In pursuance of an earnest desire to preserve peace Our Government has made a Treaty with Great Britain, which while it promotes important interests of our own is so perfectly consistent with our engagements with France that it excepts them from controul by an express and positive clause; so that the moment it can be shewn that our Treaties with France require a thing of us, any clause in the Treaty with Britain which may be in term contrary to it, becomes ipso facto inoperative as to that thing. Yet our Jacobins have represented this Treaty, this ⟨–⟩ measure of peace, as the effort of a deep laid design to form an intimate connection with Great Britain and dissolve all connection with France; and indefatigable in their endeavour to transfer their discontents to the Rulers of France, to deprive the Government of the cre⟨dit⟩ of preserving peace, they seem at length to have succeeded.


Title: Relations with France, [1795–1796]
From: Hamilton, Alexander
To:

[1795–1796]

There are circumstances, which render it too probable that a very delicate state of things is approaching between the United States and France. When threatened with foreign danger, from whatever quarter, it is highly necessary that we should be united at home; and considering our partiality hitherto for France, it is necessary towards this Union, that we should understand what has really been the conduct of that Country towards us. It is time for plain truth; which can only be unacceptable to the hirelings or dupes of that Nation.
France in our Revolution–War took part with us. At first she afforded us secret and rather scanty succours, which were more the complection of a disposition to nourish a temporary disturbance in the dominions of a rival power, than of an intention to second a Revolution. The capture of Burgoyne and his army decided the ’till then hesitating councils of France—produced the ackowlegement of our independence and Treaties of Commerce and defensive alliance. These again produced the War which ensued between France and Great Britain.
The cooperation and succour of France after this period were efficient and liberal. They were extremely useful to our cause and no doubt contributed materially to its success.
The primary motives of France for the assistance which she gave us was obviously to enfeeble a hated and powerful Rival, by breaking in pieces the British Empire. A secondary motive was to extend her relations of commerce in the new world, and to acquire additional security for her possessions there, by forming a connection with this country when detached from Great Britain. To ascribe to her any other motives—to suppose that she was actuated by Friendship towards us, or by a regard for our particular advantage, is to be ignorant of the springs of action which invariably regulate the Cabinets of Princes. He must be a fool, who can be credulous enough to believe that a despotic Court aided a popular revolution from regard to Liberty, or friendship to the principles of such a Revolution.
In forming the conditions upon which France lent her aid, she was too politic to attempt to take any unworthy advantage of our situation. But they are much mistaken, who imagine that she did not take care to make a good bargain for herself. Without granting to us any material privilege in any of her external possessions, she secured in perpetuity a right to participate in our trade on the foot of the most favoured nation. But what is far more important, she in return for the guarantee of our sovereignty and Independence obtained our guarantee of her West India possessions in every future defensive ⟨war.⟩ This may appear at first sight a mutual & equal advantage, but in the permanent operation it is not so. The Guarantee of our sovereignty and Independence, which is never likely to be again drawn into question, must hereafter be essentially nominal: While our guarantee of the West India possessions must grow into a solid advantage, increasing in importance as we advance in strength and exposing us often to the chances of being engaged in wars, in which we may have no direct interest. However this guarantee may be regarded as nominal on our part in this very early stage of our national career, it cannot be so in time to come. We shall be able to afford it with effect and our faith will oblige us to do so.
But whatever were the motives of France and though the conditions of alliance may be in their permanent tend⟨ency⟩ more beneficial to her than to us—it was our duty to be faithful to the engagements which we contracted with her—and it even became us without scanning too rigidly those motives to yield ourselves to the impulses of kind and cordial se⟨nt⟩iments toward a Power by which we were succoured in so perilous a crisis.
Nor should we ever lightly depart from the line of conduct which these principles dictate. But they ought not to be carried so far as to occasion us to shut our eyes against the just causes of complaint which France has given or may hereafter give us. They ought not to blind us to the real nature of any instances of an unfair or unfriendly policy which we have experienced or may hereafter experience from that Country. Let us Cherish faith justice and as far as possible good will but let us not be dupes.
It is certain that in the progress and towards the close of our Revolution–War the views of France, in several important particulars, did not accord with our interest. She manifestly favoured and intrigued to effect the sacrifice of our pretension on the Mississippi to Spain. She looked coldly upon our claim to the privileges we enjoy in the cod fisheries—and she patronised our negotiating with Great Britain, without the previous acknowlegement of our Independence: a conduct which whatever colour of moderation may be attempted to be given to it can only be rationally explained into the desire of leaving us in such a state of half-peace half-hostility with Great Britain as would necessarily render us dependent upon France.
Since the peace every careful observer has been convinced that the policy of the French Government has been adverse to our acquiring internally the consistency of which we were capable, in other words, a well constituted and efficient Government. Her Agents every where supported with too little reserve that feeble and anarchial system—the old confederation; which had brought us almost to the last stage of national nothingness, and which remained the theme of their eulogies, when every enlightened and virtuous man of this country perceived and acknowleged its radical defects and the necessity of essential alterations.
The truth of all this, of which no vigilant and unbiassed friend to his Country had before the least doubt, has been fully confirmed to us by the p⟨res⟩ent Government of France, which has formally proclaimed to us and to the World, the Machieavellian conduct of the old Government towards this Country. Nor can we suspect the promulgation to have been the effect of the enmity of the new against the old Government—for our own records and our own observations assure us that there is no misrepresentation.
This disclosure, which has not sufficiently attracted the attention of the American People, is very serious and instructive. Surely it ought to put us upon our guard—to convince us that it is at least possible the succeeding Rulers of France may have been on some occasions tinctured with a similar spirit. They ought to remember that the magnanimity and kindness of France under the former governt. were as much trumpeted by its partisans among us as are now the magnanimity & kindness of the present Governt. What say facts?
Genet was the first minister sent by the new Government to this Country. Are there no marks of a Machiavellian policy in his behaviour or in his instructions? Did he say to us, or was he instructed to say to us with frankness and fair dealing—Americans! France wishes your cooperation. She thinks you bound by your Treaty—or by gratitude—or by affinity of principles to afford it? Not a word of all this. The language was—France does not require your assistance. She wishes you to pursue what you think your interest.
What was the conduct? Genet came out with his pocket full of commissioners to arm Privateers. Arrived at Charlestown, before he had had any opportunity of sounding our Government, he begins to issue them and to fit out privateers from our ports; certain that this was a practice never to be tolerated by the enemies of France and that it would infallibly implicate us in the War. Our Government mildly signifies to him its disapprobation of the measure. He affects to acquiesce, but still goes on in the same way—very soon in open defiance of the Government: between which and our own citizens he presently endeavours to introduce jealousy and scism. He sets on foot intrigues with our Southern and Western extremes and attempts to organise without our territory and to carry on from it military expeditions against the terrtiories of Spain in our neighbourhood—a nation with which we were at peace.
It is impossible to doubt that the end of all this was to drag us into the war, with ⟨the⟩ humiliation of being plunged into it without even ⟨being⟩ consulted and without any volition of our own.
No Government or People could have been more horridly treated than we were by this foreign Agent. Our Executive nevertheless from the strong desire of maintaining good understanding with France forebore to impute to the French Government the conduct of its Agent made the controversy personal with him and requested his recall. The French Government could not refuse our request without a rupture with us, which at that time would have been extremely inconvenient for many plain reasons. The application for the recall accordingly had full success; and the more readily as it arrived shortly after the overthrow of the Brissotine Party (to which Genet belonged) and thus afforded another opportunity of exercising vengeance on that devoted Party.
But it were to be very credulous to be persuaded that Genet acted in this extraordinary manner, from the very beginning, without the authority of the Government by which he was sent and did not the nature of his conduct contain an internal evidence of the source it could be easily traced in the instructions which he published. These instructions demonstrate three things though the last is couched in very covert terms 1 That France did not consider us as bound to aid her in the War 2 That she desired to engage us in it and the principal bribe was to be large privileges in her West India Trade 3 That if direct negotiation did not succeed indirect means were to be taken to entangle us in it whether so disposed or not. It is not matter of complaint, that France should endeavour to engage by fair means our assistance in the War if she thought it would be useful to her, but it is just matter of bitter complaint, that she should attempt against our will to ensnare or drive us into it.
Fauchet succeeded Genet. Twas a Meteor following a Comet. No very marked phoenomena distinguished his course. But the little twinkling appearances which are here and there discerned indicate the same general spirit in him which governed his predecessor. The Executive of our Country, in consequence of an Insurrection to which one of them had materially contri⟨buted⟩, had publicly arraigned political Clubs. Fauchet in opposition openly patronises them. At the festivals of these clubs he is always a guest swallowing toasts full of sedition and hostility to the Government. Without examining what is the real tendency of these clubs, without examining even the policy of what is called the Presidents denunciation of them, it was enough for a foreign Minister that the Chief Magistrate of our Country had declared them to be occasions of calamity to it. It was neither friendly nor decent in a foreign Minister, after this, to countenance these institutions. This conduct discovered towards us not only unkindness but contempt. There is the more point in it as this countenance continued after similar societies had been proscribed in France. What were destructive poisons there were in this Country salutary medicines. But the hostility of the views of this Minister is palpable in that intercepted letter of his which unviels the treachery of Randolph. We there learn, that he pretended to think it was a duty of patriotism to second the Western Insurrection; that he knew and approved of a conspiracy which was destined to overthrow the administration of our Government even by the most irregular means.
Another Revolution of party in France placed Mr. Adet in the room of Mr. Fauchet. Mr. Adet has been more circumspect than either of his predecessors—and perhaps we ought scarcely to impute it to him as matter of reproach, that he openly seconded the opposition in Congress to the Treaty concluded with Great Britain. This was a measure of a nature to call forth the manœvres of diplomatic tactics. But if we are wise, we shall endeavour to estimate rightly the probable motives of whatever displeasure France or her Agents may have shewn at this measure. Can it be any thing else than a part of the same plan which induced the Minister of Louis the 16 to advise us to treat with Great Britain without the previous acknowlegement of our Independence? Can it be any thing else than a part of that policy which deems it useful to France, that there should perpetually exist between us and Great Britain ⟨germs⟩ of discord and quarrel! Is it not ⟨manifest⟩ that in the eyes of France the unpardonable sin of that Treaty is that it roots up for the present those germs of discord and quarrel.
To pretend that the Treaty interferes with our engagement with France is a ridiculous absurdity—for it expressly excepts them. To say that it establishes a course of things hurtful to France in her present struggle is belied by the very course of things since the Treaty. All goes on exactly as it did before.
Those who can justify displeasure in France on this account are not Americans but Frenchmen. They are not fit for being members of an independent Nation but prepared for the abject state of colonists. If our Government could not without the permission of France terminate its controversies with another foreign power & settle with it a Treaty of Commerce to endure three or four years, our boasted independence is a name. We have only transferred our allegiances! we are slaves!


Title: Petition of Merchants and Masters of Vessels Trading from the City of Albany to the City of New York, [1–19 January 1796]
From: Merchants and Masters of Vessels Trading from the City of Albany to the City of New York
To: Congress

[New York, January 1–19, 1796]

To the Congress of the United States
The Memorial & Petition of the Subscribers respectfully sheweth
That Your Memorialists are Owners or Masters or both of coasting vessels employed ordinarily and exclusively in transporting articles between the Cities of New York and Albany.
That by a late Act of Congress constituting the City of Hudson a Port of Entry the Port of Albany has been annexed to it as part of the same district and consequently severed from the District of New York.
That this arrangement subjects Your Memorialists to all the regulations of Vessels trading between different districts and to a variety of embarrassments and expences, in carrying on their business, very prejudicial to it, to which they were not before subject and which as they humbly apprehend can tend in no wise to the security or advantage of the United States their Revenue or Trade.
That while your Memorialists are disposed to see with pleasure any arrangement which accommodates their fellow Citizens of Hudson, they must unavoidably feel regret, if it must necessarily be at their expence—and if no expedient can be devised by which the evil to them can be remedied.
For though from Geographical position their annexation to Hudson may appear most natural; yet no connection can be more unnatural, when considered with reference to the Commercial relations of the two places. New York is at once the Market as well for the produce carried from Albany as for the supply to Albany & the Country connected with it of all the foreign and other articles of which they stand in need.

If it can appear expedient to Congress to reannex the port of Albany to the District of New York the inconvenie⟨nce⟩ under which Your Memorialists suffer will be removed—their business will return to its former situation—The City of Hudson will retain the convenience of being a port of Entry—all parties will be accommodated and no detriment as they with great deference conceive will ensue to the U States. In such an arrangement it will be of course necessary that the intermediate Waters should be common to the two Districts.
With this view Yr. Memoria[li]sts respectfully submit their case to the favourable consideration of Congress & pray that an Act may be passed accordingly.


Title: The Defence No. XXXVI, [2 January 1796]
From: “Camillus”,Hamilton, Alexander
To:

[New York, January 2, 1796]

It is now time to fulfil my promise of an examination of the constitutionality of the Treaty. Of all the objections which have been contrived against this instrument, those relating to this point are the most futile. If there be a political problem capable of complete demonstration, the constitutionality of the Treaty in all its parts is of this sort. It is even difficult to believe that any man in either House of Congress who values his reputation for discernment or sincerity will publicly hazard it by a serious attempt to controvert the position.
It is nevertheless too much a fashion with some politicians, when hard pressed on the expediency of a measure to entrench themselves behind objections to its constitutionality. Aware that there is naturally in the public mind a jealous sensibility to objections of that nature, which may predispose against a thing otherwise acceptable if even a doubt in this respect can be raised, they have been too forward to take advantage of this propensity without weighing the real mischief of the example. For, however it may serve a temporary purpose, its ultimate tendency is, by accustoming the people to observe that alarms of this kind are repeated with levity and without cause, to prepare them for distrusting the cry of danger, when it may be real. Yet the imprudence has been such, that there has scarcely been an important public question which has not involved more or less of this species of controversy.
In the present case, the motives of those, who may incline to defeat the Treaty are unusually strong for creating if possible a doubt concerning its constitutionality. The Treaty having been ratified on both sides, the Dilemma plainly is between a violation of the constitution by the Treaty and a violation of the constitution by obstructing the execution of the Treaty.

The VI Article of the Constitution of the U States declares that “that Constitution and the laws of the U States made in pursuance thereof, and all Treaties made or which shall be made under the authority of the U States, shall be the Supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.” A law of the land till revoked or annulled by the competent authority is binding not less on each branch or department of the Government than on each Individual of the Society. Each house of Congress collectively as well as the members of it separately are under a constitutional obligation to observe the injunctions of a preexisting law and to give it effect. If they act otherwise they infringe the constitution; the theory of which knows in such case no discretion on their part. To resort to first principles for their justification in assuming such a discretion is to go out of the constitution for an authority which they cannot find in it—it is to usurp the original character of the people themselves—it is in principle to prostrate the Government.
The cases must be very extraordinary that can excuse so violent an assumption of discretion. They must be of a kind, to authorise a revolution in government; for every resort to original principles in derogation from the established constitution partakes of this character.
Recalling to view, that all but the first ten articles of the Treaty are liable to expire at the termination of two years after the present War; if the objection to it in point of constitutionality cannot be supported, let me ask who is the man hardy enough to maintain that the instrument is of such a nature as to justify a revolution in Government?
If this can be answered in the affirmative, adieu to all the securities which nations expect to deri⟨ve⟩ from Constitutions of Government. They become mere bubbles subject to be blown away by every breath of party. The precedent would be a fatal one. Our Government from being fixed and limited would become revolutionary and arbitrary. All the provisions, which our Constitution with so much solemnity ordains “for forming a more perfect union, establishing justice, insuring domestic tranquillity, providing for the common defence, promoting the general welfare and securing the blessings of liberty to ourselves and our Posterity”, evaporate and disappear.
Equally will this be the case if the rage of party spirit can meditate, if the momentary ascendancy of party in a particular branch of the Govt. can effect and if the people can be so deceived as to tolerate, that the pretence of a violation of the constitution shall be made the instrument of its actual violation.
This, however, cannot be. There are already convincing indications, on the very subject before us, that the good sense of the people will triumph over prejudice and the arts of party, that they will finally decide according to their true interest and that any transient or partial superiority which may exist, if abused for the purpose of infracting the constitution, will consign the perpetrators of the infraction to ruin and disgrace. But alas what consolation would there be in the ruin of a party for the ruin of the Constitution!
It is time to enter upon the momentous discussion. The question shall be examined under the four following views: 1 in relation to the theory of the constitution 2 in relation to the manner in which it was understood by the convention who framed it & by the people who adopted it 3 in relation to the practice upon a similar power in the Confederation 4 in relation to the practice under our present constitution prior to the Treaty with G B. In all these relations the constitutionality of that Treaty can be vindicated beyond the possibility of a serious doubt.
I   As to the theory of the Constitution. The constitution of the U States distributes its powers into three Departments—Legislative—Executive Judiciary. The 1. Article defines the structure and specifies various powers of the Legislative Department. The second article establishes the organisation and powers of the Executive Department. The third article does the same with regard to the Judiciary Department. The 4 & 5 & the 6 article, which is the last, are a miscellany of particular provisions.
The 1st article declares that “all legislative powers granted by the Constitution shall be vested in a Congress of the U States which shall consist of a senate & House of Representatives.”
The 2d article, which organises and regulates the Executive Department, declares that “the Executive Power shall be vested in a President of the U States of America” and, proceeding to detail particular authorities of the Executive, it declares that “The President shall have power, by and with the advice and consent of the Senate, To Make Treaties, provided two thirds of the Senators present concur.” There is in no part of the Constitution an explanation of this power to make Treaties, any definition of its objects or delineation of its bounds. The only other provision in the constitution respecting it is in the 6th article, which provides, as already noticed, that all Treaties made or which shall be made under the authority of the UStates shall be the supreme law of the land; and this, notwithstanding any thing in the constitution or laws of any state to the contrary.
It was impossible for words more comprehensive to be used than those which grant the power to make treaties. They are such as would naturally be employed to confer a plenipotentiary authority. A power “to make Treaties,” granted in these indefinite terms, extends to all kinds of treaties and with all the latitude which such a power under any form of Government can possess. The power “to make,” implies a power to act authoritatively and conclusively; independent of the after clause which expressly places treaties among the Supreme Laws of the land. The thing to be made is a Treaty; With regard to the objects of the Treaty, there being no specification, there is of course a charte blanche. The general proposition must therefore be that whatever is a proper subject of compact between Nation & Nation may be embraced by a Treaty between the President of the U States, with the advice and consent of the Senate, and the correspondent Organ of a foreign state.
The authority being general it comprises of course whatever cannot be shewn to be, necessarily, an exception to it.
The only constitutional exception to the power of making Treaties is that it shall not change the constitution; which results from this fundamental maxim that a delegated authority cannot rightfully transcend the constituting act unless so expressly authorised by the constituting Power. A treaty for example cannot transfer the legislative power to the Executive Department nor the power of this last Department to the Judiciary; in other words it can not stipulate that the President and not Congress shall make laws for the U States; that the Judges and not the President shall command the national forces &c.
Again there is also a natural exception to the power of making treaties, as there is to every other delegated power; which respects abuses of authority in palpable and extreme cases. On natural principles, a Treaty which should manifestly betray or sacrifice primary interests of the State would be null. But this presents a question foreign from that of the modification or distribution of constitutional powers. It applies to the case of the pernicious exercise of a power, where there is legal competency. Thus the power of Treaty, though extending to the right of making alliances offensive and defensive, may yet be exercised in making an alliance so obviously repugnant to the safety of the State as to justify the non observance of the Contract.
Beyond these exceptions to the Power, none occurs that can be supported.
Those which have been insisted upon towards invalidating the Treaty with Great Britain are not even plausible. They amount to this, that a treaty can establish nothing between the U States and a foreign nation which it is the province of the legislative authority to regulate in reference to the U States alone. It cannot for instance establish a particular rule of commercial intercourse between the U States & G Britain because it is provided in the constitution, that Congress shall “have power to regulate commerce with foreign nations.” This is equivalent to affirming that all the objects upon which the legislative power may act in relation to our own Country are excepted out of the power to make Treaties.
Two obvious considerations refute this doctrine. One that the power to make Treaties and the power to make laws are different things, operating by different means, upon different subjects, the other, that the construction resulting from such a doctrine would defeat the power to make Treaties; while its opposite reconciles this power with the power of making laws.

The power to make laws is “the power of pronouncing authoritatively the will of the Nation as to all persons and things over which it has jurisdiction”; or it may be defined to be “the power of prescribing rules binding upon all persons and things over which the nation has jurisdiction.” It acts compulsively upon all persons, whether foreigners or Citizens, and upon all things, within its territory, and it acts in like manner upon its own citizens and their property without its territory in certain cases and under certain limitations. But it can have no obligatory action whatsoever upon a foreign nation or any person or thing within the jurisdiction of such foreign Nation.
The power of Treaty on the other hand is the power by agreement, convention or compact to establish rules binding upon two or more nations their respective citizens and property. The rule established derives its reciprocal obligation from promise, from the faith which the contracting parties pledge to each other, not from the power of either to prescribe a rule for the other. Tis not here the will of a Superior that commands, tis the consent of two independent parties that contract.
The means which the power of legislation employs are laws which it enacts, or rules which it enjoins, the subject upon which it acts is the Nation of whom it is, the persons and property within the jurisdiction of that Nation. The means, which the Power of Treaty employs, are contracts with other nations, who may or may not enter into them, the subject upon which it acts is the nations contracting and those persons and things of each to which the contract relates. Though a Treaty may effect what a law can, yet a law cannot effect what a Treaty may. These discriminations are obvious and decisive; and however the operation of a Treaty may in some things resemble that of a law no two ideas are more distinct than that of legislating and that of contracting.
It follows that there is no ground for the inference pretended to be drawn, that the legislative powers of Congress are excepted out of the power of making Treaties. It is the province of the latter to do what the former cannot do. Congress (to pursue still the case of regulating Trade) may regulate by law our own Trade and that which foreigners come to carry on with us, but they cannot regulate the Trade which we may go to carry on in foreign countries, they can give to us no rights no privileges there. This must depend on the will and regulation of those countries; and consequently it is the province of the power of Treaty to establish the rule of commercial intercourse between foreign nations and the U States. The Legislature may regulate our own Trade but Treaty only can regulate the mutual Trade between our own and another Country.
The constitution accordingly considers the Power of Treaty as different from that of Legislation. This is proved in two ways   1   that while the Constitution declares that all the legislative powers which it grants shall be vested in Congress, it vests the power of making Treaties in The President with consent of the Senate   2   that the same article by which it is declared that the Executive Power shall be vested in a President and in which sundry executive powers are detailed, gives the Power to make Treaties to the President with the auxiliary agency of the Senate. Thus the power of making Treaties is placed in the class of Executive authorities; while the force of law is annexed to its results. This agrees with the distribution commonly made by theoretical write[r]s—though perhaps the power of Treaty from its peculiar nature ought to form a class by itself.
When it is said that Congress shall have power to regulate Commerce with foreign nations this has reference to the distribution of the general legislative power of regulating Trade between the National and the particular Governments, and serves merely to distinguish the right of regulating our external Trade as far as it can be done by law, which is vested in Congress, from that of regulating the trade of a state within itself which is left to each state.
This will the better appear from the intire Clause—“The Congress shall have power to regulate Commerce with foreign Nations and among the several States and with the Indian Tribes” which is the same as if it had been said “The whole power of regulating trade by law shall reside in Congress, except as to the Trade within a State, the power to regulate which shall remain with such state.” But it is clearly foreign to that mutual regulation of Trade between the U States and other nations which from the necessity of mutual consent can only be performed by Treaty. Tis indeed an absurdity to say that the power of regulating Trade by law is incompatible with the power of regulating it by Treaty; since the former can by no means do what the latter can alone accomplish. Consequently tis an absurdity to say that the legislative power of regulating trade is an exception to the power of making Treaties.
Laws are the acts of legislation of a particular Nation for itself. Treaties are the acts of the legislation of several nations for themselves jointly & reciprocally. The Legislative power of one State cannot reach the cases which depend on the joint legislation of two or more States. For this, resort must be had to the pactitious power or the power of Treaty. This is another attitude of the subject displaying the fallacy of the proposition that the legislative powers of Congress are exceptions to or limitations of The Power of The President, with the aid of the Senate, to make Treaties.

Camillus


Title: To Alexander Hamilton from William Duer, 2 January 179[6]
From: Duer, William
To: Hamilton, Alexander

New York, January 2, 179[6.] “Will you pardon me, my dear Sir, in requesting of you if you can make it Convenient, a second Loan of Fifty Dollars in the Course Ten Days. I shall be able to return it to you, and first Fifty you was kind Enough lend me.”


Title: From Alexander Hamilton to Jonathan Dayton, 4 January 1796
From: Hamilton, Alexander
To: Dayton, Jonathan

[New York, January 4, 1796. On January 15, 1796, Dayton wrote to Hamilton: “Your letter of the 4th is before me.” Letter not found.]


Title: From Alexander Hamilton to Jedidiah Morse, [4 January 1796]
From: Hamilton, Alexander
To: Morse, Jedidiah

[New York, January 4, 1796]
Sir

You will confer a favour upon me by permitting me to render you the little service which may be in my power on the present occasion & without compensation. Be assured it will give real pleasure & let that be my recompence.
Mr. Kent & I have conferred on your affair. It is necessary for us to see the book in question in order to a safe opinion. Can one be had?
With respect & esteem   Sir   Your obed serv

A HamiltonJany. 4. 1795


Title: The Defence No. XXXVII, [6 January 1796]
From: “Camillus”,Hamilton, Alexander
To:

[New York, January 6, 1796]

It shall now be shewn, that the objections to the Treaty founded on its pretended interference with the powers of Congress tend to render the Power of making Treaties in a very great degree if not altogether nominal. This will be best seen by an enumeration of the cases of pretended interference.
I   The power of Congress to lay taxes is said to be impaired by those stipulations which prevent the laying of duties on particular articles, which also prevent the laying of higher or other duties on British commodities than on the commodities of other countries and which restrict the power of increasing the difference of duties on British Tonnage and on goods imported in British Bottoms.
II   The power of Congress to regulate Trade is said to be impaired by the same restrictions respecting duties, inasmuch as they are intended & operate as regulations of Trade—by the stipulations against prohibitions in certain cases and in general by all the rights privileges immunities, and restrictions in Trade which are contained in the Treaty, all which are so many regulations of commerce, which are said to encroach upon the legislative authority.
III   The power of Congress to establish a uniform rule of naturalization is said to be interfered with by those provisions of the Treaty which secure to the settlers within the precints of the British Posts the right of becoming citizens of the U States, and those which in certain cases remove the disability of alienism as to property.
IV   The power of Congress “to define and punish piracies and felonies committed on the high seas and offences against the law of Nations” is said to be contravened by those parts of the Treaty which declare that certain acts shall be deemed piracy which constitute certain other things offences & stipulate the reciprocal punishment of them by each.
V   It is also said that the constitution is violated in relation to that provision which declares that “no money shall be drawn from the Treasury but in consequence of appropriations made by law”—by those parts of the Treaty which stipulate compensations to certain Commissioners and indemnifications to G Britain in certain cases to be adjusted and pronounced by the commissioners, and generally by all those parts which may involve an expenditure of money.
[VI]   The constitution is said to be violated in that part which requires the establishment of Officers of the U States by law—by those stipulations of the Treaty which without the intervention of law provide for the appointment of Commissioners.
[VII]   The Constitution is said to be violated in that part, which empowers Congress to dispose of and make all needful rules and regulations respecting the territory or other property of the U States, by those provisions of the Treaty which respect the adjustment boundary in the cases of the Rivers St Croix & Mississippi.

[Lastly,]   The Constitution is said to be violated in its provisions concerning the Judiciary Department by those parts of the Treaty which contemplate the confiding to the determination of Commissioners certain questions between the two Nations.
A careful inspection of the Treaty with these objections in view will discover that of the 28 articles which compose it at least seventeenth are involved in the charge of unconstitutionality and these seventeen comprise all the provisions which adjust past controversies or establish rules of Commercial Intercourse between the Parties. The other eleven, whch are the 1st 10th 17th 18th 19th 20th 22d. 23d and 24, except the first, are made up of provisions which have reference to War; the first merely declaring that there shall be peace between the parties. And it is a question even with respect to all of these, except the 1st & 10th, whether they also are not implicated in the charge; inasmuch as some of their dispositions have commercial relations. Is not this alone sufficient to bring under strong suspicion the validity of the principles which impeach the constitutionality of the instrument?
It must have been observed, that the argument in the last number is applicable to all the legislative powers of Congress, as well as to that of regulating trade which was selected by way of illustration, the ground of it being common to all. Indeed the instance of the regulation of Trade is that which is most favourable to the opposite doctrine—since foreign nations are named in the clause; the true intent of which however has been explained.
The same reasoning too would extend the power of Treaties to those objects which are consigned to the legislation of individual states; but here the constitution has announced its meaning in express terms, by declaring that the treaties which have been and shall be made under the authority of the U States shall be the supreme law of the land any thing in the constitution or laws of any state to the contrary notwithstanding. This manifestly recognises the supremacy of the power of treaties over the laws of particular states and goes even a step farther.
The obvious reason for this special provision in regard to the laws of individual states is that there might otherwise have been room for question whether a Treaty of the Union could embrace objects the internal regulation of which belonged to the separate authorities of the States. But with regard to the U States there was no room for a similar question. The power of Treaty could not but be supposed commensurate with all those objects to which the legislative power of the Union extended.
It is a question among some theoretical Writers—whether a Treaty can repeal preexisting laws? This question must always be answered by the particular form of Government of each Nation. In our constitution, which gives ipso facto the force of law to Treaties, making them equally with the Acts of Congress, the supreme law of the land, a Treaty must necessarily repeal an antecedent law contrary to it; according to the legal maxim that “leges posteriores priores contrarias abrogant”

   Posterior laws abrogate those which are prior to them if contradictory.

But even in those forms of government in which there may be room for such a question, it is not understood that a Treaty containing stipulations which require the repeal of antecedent laws is on that account unconstitutional and null. The true meaning is that the antecedent laws are not ipso facto abrogated by the Treaty. But the Legislature is nevertheless bound in good faith under the general limitation stated in another place to lend its authority to remove obstacles which previous laws might oppose to the fair execution of a Treaty.

One instance of the inconsistency prevailing in the arguments against the Treaty negotiated by Mr. Jay [is] observable on this point. To get rid of the infractions of our Treaty of peace with G Britain by certain laws of particular States, it is strenuously maintained that Treaties controul the laws of states. To impeach the constitutionality of the Treaty under consideration it is objected that in some points it interferes with the objects of state-legislation. The express provision of the constitution in this particular quoted above has not been sufficient to check the rage for objection.
The absurdity of the alleged interferences will fully appear by shewing how they would operate upon the several kinds of Treaties usual among nations. These may be classed under three principal heads   1   Treaties of Commerce   2   Treaties of Alliance   3   Treaties of Peace.
Treaties of Commerce are of course excluded, for every Treaty of Commerce is a system of rules devised to regulate and govern the Trade between Contracting Nations; invading directly the exclusive power of regulating Trade which is attributed to Congress.
Treaties of Alliance whether defensive or offensive are equally excluded, and this on two grounds—1   because it is their immediate object to define a case or cases in which one nation shall take part with another in war, contrary, in the sense of the objection, to that clause of the constitution which gives to Congress the power of declaring war, and 2   because the succours stipulated in whatever shape they may be must involve an expenditure of money—not to say that it is common to stipulate succours in money either in the first instance or by way of alternative. It will be pertinent to observe incidentally in this place, that even the humane and laudable provision in the XXII article, which all have approved, is within the spirit of the objection; for the effect of this is to restrain the power and discretion of Congress to grant reprisals till there has been an unsuccessful demand of Justice.
3   Treaties of peace are also excluded or at the least are so narrowed as to be in the greatest number of cases impracticable. The most common conditions of these Treaties are restitutions or cessions of territory on one side or on the other, frequently on both sides, regulations of boundary, restitutions & confirmations of property—pecuniary indemnifications for injuries or expences. It will probably not be easy to find a precedent of a Treaty of Peace which does not contain one or more of these provisions as the basis of the cessation of hostilities, and they are all of them naturally to be looked for in an agreement which is to put an end to the state of War between conflicting nations. Yet they are all precluded by the objections which have been enumerated—pecuniary indemnifications, by that which respects the appropriation of money; restitutions or cessions of territory or property, regulations of boundary, by that which respects the right of Congress to dispose of and make all needful rules and regulations concerning the territory and property of the U States. It is to be observed likewise that cessions of territory are almost always accompanied with stipulations in favour of those who inhabit the ceded territory securing personal privileges and private rights of property; neither of which could be acceded to on the principle of that objection, which relates to the power of naturalization; for this power has reference to two species of rights, those of privilege and those of property. An act allowing a foreigner to hold real estate is so far an act of naturalization; since it is one of the consequences of alienism not to be able to hold real estate.
It follows that if the objections which are taken to the Treaty on the point of constitutionality are valid, The President with the advice and consent of the senate, can make neither a Treaty of Commerce nor Alliance, and rarely, if at all, a Treaty of Peace. It is probable that on a minute analysis, there is scarcely any species of treaty which would not clash, in some particular, with the principle of those objections; and thus, as was before observed, the power to make treaties granted in such comprehensive and indefinite terms and guarded with so much precaution would become essentially nugatory.
This is so obviously against the principles of sound construction, it at the same time exposes the Government to so much impotence in one great branch of political power, in opposition to a main intent of the Constitution—and it tends so directly to frustrate one principal object of the institution of a General Government—the convenient management of our external concerns—that it cannot but be rejected by every discerning man who will examine and pronounce with sincerity.
It is against the principles of sound construction; because these teach us that every instrument is so to be interpreted, that all the parts may if possible consist with each other and have effect. But the construction which is combated would cause the legislative power to destroy the power of making Treaties. Moreover, If the power of the Executive Department be inadequate to the making of the several kinds of Treaties which have been mentioned, there is then no power in the Government to make them; for there is not a syllable in the constitution which authorises either the Legislative or Judiciary Department to make a Treaty with a foreign Nation. And our Constitution would then exhibit the ridiculous spectacle of a Government without a power to make Treaties with foreign nations: a result as inadmissible as it is absurd, since in fact our Constitution grants the power of making Treaties in the most explicit and ample Terms to the President with the advice and consent of the Senate.
On the contrary, all difficulty is avoided by distinguishing the provinces of the two powers according to ideas which have been always familiar to us and which were never exposed to any question till the Treaty with G Britain gave exercise to the subtilties of party-spirit.
By confining the power to make laws within its proper sphere & restricting its action to the establishment of rules for our own nation and those foreigners who come within our jurisdiction, and by assigning to the power of Treaty the office of concerting those rules of mutual intercourse and connection between us and foreign nations which require their consent as well as our own; allowing to it the latitude necessary for this purpose, a harmonious agreement is preserved between the different powers of the Government—that to make laws and that to make treaties between the authority of the Legislative & the authority of the Executive department.
Hence Though Congress by the Constitution have power to lay taxes, yet a Treaty may restrain the exercise of it in particular cases: for a Nation like an individual may abrige its moral power by agreement and the organ charged with the legislative power of a nation may be restrained in its operation by the agreements of the Organ of its Fœderative Power or power to contract. Let it be remembered that the Nation is the Constituent; & that the Executive within its sphere is no less the organ of its will than the Legislature.
Though Congress are empowered to make regulations of Trade; yet they are not exclusively so empowered, but regulations of Trade may also be made by Treaty, and where other nations are to be bound by them must be made by Treaty.
Though Congress are authorised to establish a uniform rule of naturalization, yet this contemplates only the ordinary cases of internal administration. In particular & extraordinary cases, those in which the pretensions of a foregin Government are to be managed—a Treaty may also confer the rights and privileges of Citizens. Thus the absolute cession and plenary dominion of a province or district possessed by our arms in War may be accepted by the Treaty of Peace on the condition that its inhabitants shall in their persons and property enjoy the privileges of citizens.
The same reasoning applies to all the other instances of supposed infraction of the legislative authority; with regard to piracies and offences against the laws of Nations; with regard to expenditures of money; with regard to the appointment of officers; with regard to the judiciary tribunals; with regard to the disposal and regulation of national territory & property. In all these cases the power to make laws and the power to make treaties are concurrent and coordinate. The latter and not the former must act where the cooperation of other Nations is requisite.
As to what respects the Commissioners agreed to be appointed, they are not in a strict sense Officers. They are arbitrators between the two Countries. Though in the Constitutions, both of the U States and of most of the Individual states, a particular mode of appointing officers is designated, yet in practice it has not been deemed a violation of the provision to appoint Commissioners or special Agents for special purposes in a different mode.
As to the provision, which restricts the issuing of money from the Treasury to cases of appropriation by law, and which from its intrinsic nature may be considered as applicable to the exercise of every power of the Government, it is in no sort touched by the Treaty. The constant practice of the Government, the cause of an expenditure or the contract which incurs it, is a distinct thing from the appropriation for satisfying it. Thus the salary of a public officer is fixed by one law, the appropriation for its payment by another. So, the Treaty only stipulates what may be a cause of Expenditure. An appropriation by law will still be requisite for actual payment.
As to the disposal & regulation of the territory and property of the U States, this will be naturally understood of dispositions and regulations purely domestic and where the title is not disputed by a foreign power. Where there are interfering claims of foreign powers, as neither will acknowlege the right of the other to decide, Treaty must directly or indirectly adjust the dispute.
So far then is it from being true that the Power of Treaty can extend to nothing upon which, in relation to ourselves, the Legislative Power may act—that it may rather be laid down as a general rule that a Treaty may do between different Nations whatever the legislative Power of each may do with regard to itself. The exceptions to this rule are to be deduced from the unfitness & inconvenience of its application to particular cases and are of the nature of abuses of a general principle.
In considering the power of Legislation, in its relations to the Power of Treaty, instead of saying that the objects of the former are excepted out of the latter, it will be more correct, indeed it will be intirely correct to invert the rule and to say that the Power of Treaty is the power of making exceptions in particular cases to the power of Legislation. The stipulations of Treaty are in good faith restraints upon the exercise of the last mentioned power. Where there is no Treaty it is completely free to act. Where there is a Treaty, it is still free to act in all the cases not specially excepted by the Treaty. Thus Congress is free to regulate Trade with a foreign nation with whom we have no Treaty of Commerce in such manner as they judge for the interest of the U States, and they are also free so to regulate it with a foreign nation with whom we have a Treaty, in all the points which that Treaty does not specifically except. There is always therefore great latitude for the exercise of the legislative power of regulating Trade with foreign Nations notwithstanding any Treaties of Commerce which may be formed.

The effect of a Treaty to impose restraints upon the legislative power may in some degree be exemplified by the case of the compacts which the legislative Power itself makes, as with regard to the Public Debt. Its own compacts are in good faith exceptions to its power of action. Treaties with foreign powers for obvious reasons are much stronger exceptions.

Camillus