Chapter LXXXI: Introduction (80)

Mr. SWANWICK objected that his colleague (Mr. KITTERA) had charged him with a want of candor. He was liable to mistake, he said, equally with any other man; but he trusted he should not be charged with knowingly misstating any thing with respect to the East India trade; he had reserved to himself a future opportunity of speaking on that subject, which, however, the length of debate seemed likely to prevent. He had said that the American vessels were permitted to trade to the East Indies as all other nations were, but that they were obliged to land their goods in the United States, whilst the Danes, Swedes, &c., could go there and carry the goods which they purchased from thence to any part of the world, except to the British dominions; and that was the situation of America antecedent to the present Treaty. A ship of his, some time ago, earned a good freight from Bengal to Ostend, and another he knew had lately made one to Hamburg; but, by the Treaty before the House, whatever advantages might be made by going to a foreign port their vessels were deprived of, and must return direct to the ports of the United States. These, he said, were stipulations which no other nation lay under; and though, perhaps, no nation had special leave stipulated by Treaty to go there, yet they all, nevertheless, did go, and never met with any opposition.

FRIDAY, April 22.

_Execution of British Treaty._

After the presentation of several petitions on this subject, the House resolved itself into a Committee of the Whole on the state of the Union, when the resolution for carrying into effect the British Treaty being under consideration--

Mr. COIT said, that the importance of the resolution before the committee would preclude all necessity of analogy for any member's asking their attention to his observations. He should only add to it, that he should endeavor not to repeat what had been already said.

He observed, that the discussion of the merits of the Treaty came before the committee under peculiar disadvantages, for, besides the prejudices against it that might be supposed to have been caused by extraneous circumstances, the agitation of the important constitutional question relative to the right of the Legislature to concur in giving validity to this Treaty, which was claimed to be valid and complete without that concurrence, and the refusal of a call for papers had very naturally a tendency to give a bias to the minds of some gentlemen against the Treaty; for himself, he was fully satisfied the Legislature had no constitutional connection with the business of making Treaties.

Mr. C. said he should attempt to run through the objections which had been made to the Treaty, and consider its merits independently of the peculiar circumstances under which it was now presented to the committee, and then give his own view of it as relative to those peculiar circumstances.

The objects of the negotiation, he said, very naturally were divided into three parts--the inexecution of the Treaty of 1783; mutual complaints between the United States and Great Britain relative to transactions independent of the Treaty; and arrangements for the intercourse between the two nations, commercial and political. But as gentlemen had made their objections generally in the order in which the several articles of the Treaty had been arranged, he should follow the same order in his observations in answer to them.

The first objection which had been made was, that no compensation had been stipulated to the United States for the supposed breach of the Treaty of 1783, in carrying off the negroes. This objection, he had supposed, was so completely answered by his colleague, (Mr. HILLHOUSE,) who had been up the day before, that he should not have added on that head, but that he had since found gentlemen still insisting on that objection. He was particularly surprised to hear the gentleman from Pennsylvania (Mr. FINDLAY) stating that he conceived the negro article to have been put into the Treaty expressly as a compensation or set-off for the engagement to pay the British debts. This pretension, he thought, had been fully refuted by the extract from Mr. Adams's journal, quoted by Mr. Jefferson in his correspondence with Mr. Hamilton, and which had been read by his colleague. From that extract, it appeared that a claim for negroes and other property which had been plundered, carried off, and destroyed by the British, was made by our commissioners, as a set-off against a claim made by the British commissioners for restoration of confiscated estates; and that the one of those claims was abandoned with the other. Had the gentleman from Pennsylvania taken the pains to examine the journal of Mr. Adams, which might be seen by any member of the committee at the office of the Secretary of State, he would have found how the article came to be inserted.

Before the _signing of the Treaties_ with which the extract made by Mr. Jefferson is closed, stands in the original the history of this article in these words:

"Mr. Laurens said, there ought to be a stipulation that the
British troops should carry off no negroes or other
property; we all agreed. Mr. Oswald consented, and _then
the Treaties were signed_," _&c._

This, Mr. COIT said, was all the mention he could find respecting this article, except in a subsequent part of the same letter, in which Mr. Adams observes:

"I was very happy that Mr. L. came in, although it was the
last day of the conferences, and wish he could have been
sooner. His apprehension, notwithstanding his deplorable
affliction under the recent loss of so excellent a son, is
as quick, his judgment as sound, and his heart as firm as
ever. He had an opportunity of examining the whole, and
judging and approving; and the article which he caused to
be inserted at the very last, that no property should be
carried off, which would most probably, in the multiplicity
and hurry of affairs, have escaped us, was worth a longer
journey, if that had been all, but his name and weight is
added, which is of much greater consequence."

From these extracts, it appeared, the article was not a subject of negotiation, but inserted at the close of the transaction, without discussion, as a matter of course, and which Mr. Adams supposes might, in the multiplicity and hurry of affairs, have been omitted, if Mr. Laurens had not suggested it.

Mr. C. said, he would candidly acknowledge that it was very extraordinary to him, that the construction which had been generally put on the article in America, should have so universally prevailed, if it was not the true one, that Congress should have adopted it; and that such should have been the idea of the commissioners appointed to superintend the embarkation at New York, in the year 1783. Still more extraordinary was it to him, to find Mr. Jay himself, when Secretary for Foreign Affairs, in the year 1786, in a report he then made to Congress on the subject, considering the carrying off of those negroes as a violation of the Treaty, and saying further, that he understood from Mr. Adams, then at the Court of London, that the British Minister had no objections to making compensation for them. Still he believed, the true construction of the article was, that it was designed only to prevent plunder by the British troops, and carrying off of American property, according to the ordinary agreements in Treaties, which stipulate for the giving up of conquered countries. True, it might be asked, why say negroes or other property? The expression, he agreed, was not correct, unless a doubt might have been entertained whether negroes were property; but the word negroes must be qualified by other property, with which it is connected, and could operate only as if it had said horses or other property, which no person would contend amounted to a stipulation not to carry off what had once been, but by the laws of war and nations, before the close of the war, had ceased to be the property of American inhabitants. Four gentlemen from Virginia had insisted on this objection, and not one of them had deigned to remark on the construction of the article itself. They had all relied upon the common understanding of it. That this understanding could not change the sense of the article, if it was not doubtful, could not be denied. Their leaving the article and resorting to the common understanding of it, he conceived to be a tacit acknowledgment of the gentlemen, that the instrument itself would not bear the construction they wished to give it.

Whether the negotiator had urged this construction of the article, and found he could not obtain its admission, or even an arbitration upon it, he did not know; from his opinion of the good sense and understanding of Mr. Jay, however, he was for himself satisfied that, whatever might have been his former opinions, on attending to the subject, he had found what had been called the American construction was not the just one, and had therefore abandoned it.

Mr. C. said, he was aware that the construction he contended for had been called the British construction, and _Camillus's_ construction; that he had himself, however, adopted more than two years ago, the first time he had paid any attention to the article, upon no other impulse or authority than his own judgment, on the perusal of it, and even before he had ever heard of any other construction of it than that he contended against, he was aware that there was a kind of patriotism which claimed every thing for one's country, whether consistently with truth, justice, and candor, or not; for himself, he had no pretensions to such patriotism. He believed Mr. Jay had none, and if he was convinced that the American construction of this article was unfounded, he thought it for his honor, and the honor of this country, that he had abandoned it.

When Mr. COIT had concluded--

Mr. S. SMITH rose and said, the subject then before the committee appeared to him to be of an importance at least equal to the great constitutional question which agitated the House during the present session; it has had, and he trusted would continue to have, the same calm attention paid to its discussion. He hoped and expected that it would ultimately be determined with a view to the real interest of the nation, under the existing state of things.

When the Treaty was first published he had read it with attention, and although he had not seen all those faults with which it has since been charged, yet there was, to his view, so little good contained in it, and so much of evil to be apprehended from it, that he had felt a hope that the PRESIDENT would not have ratified it. He had been disappointed, yet he had not a doubt but the PRESIDENT, after the most mature consideration, had given his signature; being possessed, as he was, of every information relative to a subject so very important, he could better determine on the policy of its adoption than those who were less informed. Still there were many articles, particularly the commercial, which every man might judge of from the face of the instrument. On these he did not hesitate to give an opinion: which was, that they promise not one solitary advantage, and shackle our commerce in many important points. He would not trouble the committee with going deeply into a subject that has already been so ably discussed. He, however, could not refrain from a few remarks on the right to countervail our extra duties on tonnage of goods imported in foreign bottoms. He asked what would this countervail be? Could any man tell? It was not specified in the article; it was then discretionary with the British; discretionary with a nation whose rule of right has always been the measure of its power, whose conduct has invariably been to cramp and distress the commerce of all other nations. To such a nation was it proper to trust a latitude of that extent? Will she make her countervail oppressive and unjust? It is more than probable she will, and if she should, what remedy have we? None: for we are forbidden by the same article to legislate further on the subject.

He said he would take leave to explain the 13th article which relates to the East India trade, and which it has been said gives such solid advantage as to counterbalance all the evils arising out of the Treaty. He had taken some pains to inform himself on this subject, and he had found that the Americans, in common with all other nations, traded to the British and other ports of India, and were every where received with that sort of kindness which grows out of the interest that the vender has in selling his goods for ready money, and to a great profit; that our trade is so much the interest of the India Company, and of all its officers and factors, as well as of the private traders residing there; that it was ridiculous to suppose the India Company would prevent it; and, if they should, what would be the evil? Little or none; for there were other ports, belonging either to other European powers or to the natives, in the neighborhood of all the English ports, who would receive us with open arms, and supply us for our silver, on terms equal, or nearly so. He then stated that our ships could now carry from one port in India to another, to China, or to Europe; an employment that had been found very lucrative. Under the Treaty they must proceed with whatever they purchase in an English port direct to America. The article says, His Majesty consents to your trade to India, and this is called a boon. It appeared to him just as ridiculous as if his Majesty had said, he consented to our going to Great Britain to purchase its manufactures.

To enumerate the many faults he found with the Treaty, as well of omission as commission, would take up too much of their precious time; yet he trusted he should be excused for taking a short view of its leading features.

When the envoy was sent to Great Britain, he was principally to demand restitution for the cruel depredations committed on our commerce. We find that object attended to so vaguely that our best-informed men seem doubtful whether much will ever be recovered under the Treaty; they find that in every instance the loser must first pursue his remedy through their tedious and expensive Courts. We find, that by fair construction, we have acknowledged ourselves to have been the infractors of the Treaty of Peace; for what was the ground on which some of the States placed legal impediments to the recovery of British debts? Why, that Lord Dorchester had refused to deliver up or pay for the negroes which, by that Treaty, ought to have been restored, and which slaves would have assisted their masters by their labor to pay those debts; yet we see no mention of them in the Treaty; and we find, to our surprise, men, since this Treaty, defending the construction lately put on the Treaty of Peace by the British, and which had never before been heard of; thus acquiescing in the charge of our being the first aggressors. But this only relates to our honor, and of course can be of little consequence to a nation whose rule of conduct is to submit to every thing, provided, that on the whole account, there appears to be a balance of profit in its favor.

After having thus formed his opinion relative to the Treaty, his next inquiry was, is the Treaty constitutional? On that point he had held himself open to conviction, and waited its discussion. He had not heard any gentleman declare it unconstitutional, except one, (Mr. PAGE,) who seemed to give his opinion as if he still doubted; and having carefully considered the subject, he was now of opinion that there was nothing directly repugnant to the constitution in the instrument. He then inquired whether, under the existing state of things, the Treaty ought to be rejected? whether it contained stipulations so extremely injurious to the United States as ought to induce the House of Representatives to reject a compact made by the other branches of the Government? In the ten first articles, which are permanent, he found some objections. The third article, which, like many others, cannot be well understood, seems to say that goods imported in British bottoms to the ports of the Lakes, shall pay extra duty. If this be a true construction, it will then be necessary to repeal our restraining duties, to make the Treaty by law consistent with the constitution, which requires that all duties shall be equal. The tenth article ties our hands against sequestration, a power which ought not to be exercised, except on some very extraordinary occasions; yet it was a power which, considering our relative situation to Great Britain, it was imprudent to part with; still, on fair consideration, he did not find that there was sufficient cause, on the account, to reject the Treaty, in the situation we are now placed. The residue will expire in two or three years.

TUESDAY, April 26.

_Execution of British Treaty._

Mr. DWIGHT FOSTER observed, that as the subject before the committee had been minutely discussed, it was not to be expected any new arguments, either on the one side or the other, would be adduced. Hitherto, he had been silent--though silent, he had not been inattentive--he had listened with candor to every thing which had been offered; he had formed his opinion upon serious deliberation, and was ready to give it whenever the question should be taken.

When the resolution requesting the PRESIDENT to lay before the House a copy of the instructions, correspondence, and other documents relative to this Treaty, was under consideration, Mr. F. observed, that he had intended to have expressed his sentiments on the subject; but the great length of time which was spent in that discussion, and the extreme impatience discovered by many members to have the question taken, induced him, as it might several others, to be content with expressing a silent vote, as he did with the minority, on that occasion. This he was the more willing to do, as it was then well known that the Treaty itself would be before the House; that some appropriations would be requisite, on their part, to carry it into effect; and, it was not to be doubted but every gentleman who wished to express his opinion would have an opportunity. The time had now arrived, and several days had been spent already, he believed not unprofitably, in deliberating on an instrument which had been the cause of great agitation in the United States.

He was heretofore one of those who considered the negotiation as advisable; it appeared to him the only means by which the horrors of war were to be avoided. He therefore rejoiced when the PRESIDENT appointed an Envoy for the purpose of negotiation; nor did he yet find any reason to apprehend the measure was injudicious. Far otherwise. He believed it was right, proper, and advisable; and that the result would prove highly advantageous and fortunate for our country. He further said, that he had critically examined the various articles of the Treaty; that he had weighed the arguments for and against them, jointly and severally; that he had considered them all with the attention their importance required; and though, in some instances, we might have wished an extension of advantages on our side, he was bound, in conscience, to declare that he thought the Treaty as beneficial to us as we had a right to expect.

The right of the PRESIDENT, by and with the advice and consent of the Senate, to make Treaties, is a principle clearly defined by the constitution. Not a single power delegated by the constitution to any one branch of the Government is defined in terms more explicit, or less liable to be misunderstood, than those which define the Treaty-making power of the United States; and, during the whole course of the former and present debates, Mr. F. observed, he had not been able to raise a doubt in his own mind on the subject. The Treaty under consideration had been duly made and ratified by the proper authority, constituted for this purpose by the people of the United States; as such it was now before the committee and demanded their serious attention and respect. The subject was allowed by all to be of importance. To him it appeared more momentous than any other which, at any time since the establishment of the Government, had engrossed the attention of Congress. He viewed it not as a question of peace or war only, but as involving questions of far greater magnitude. He meant the present unexampled prosperity of this country, our political happiness, our excellent constitution, and probably, in its consequences, the existence of the national Government.

Mr. KITCHELL said, he could throw no new light upon the subject under discussion; he wished only to express a few ideas which would lead him to support the resolution in its present form. He did not believe the Treaty to be that box of Pandora, which was to scatter evils of every kind upon the land. He believed there were stipulations in favor of the United States, as well as in favor of Great Britain; and when the Ministers of the two nations enter into contract, it must be expected that stipulations will be agreed to on each side which will not appear perfectly satisfactory to either, as certain concessions must be made on both sides.

He would mention only the probable consequences of rejecting the Treaty. The disposition of the two nations towards each other at the time of entering into negotiation was well known. The spoliations and injuries done to the American vessels had wound up American resentment to the highest pitch. Happily for America, Britain saw cause to change her system of aggression. He believed, with some other gentlemen, that Britain had not only formed the plan of crushing the rising liberties of France, but also of extending her views to America; but, from a reverse of fortune, she found it necessary to employ all her resources against France. There was another thing, the people of England were clamorous on account of the injuries done to the vessels of America; they were seen to be unjust, and were publicly reprobated. These circumstances were favorable to our negotiation, and he believed they could at no time have got a better Treaty, than at the time the present was agreed upon.

He said, they had only three alternatives. Either to give aid to the Treaty, continue to bear the insults of Great Britain, or else to determine resolutely on the dernier resort, war.

Mr. GRISWOLD said, that in his opinion, the extensive view which the committee were taking of the merits of the Treaty with Great Britain was unwarranted by the Constitution of the United States; that he did not believe any part of the Treaty-making power had been delegated to the House of Representatives; and that the committee might with as much propriety examine the merits of the constitution itself, for the purpose of deciding whether they would execute it or not, as to examine the Treaty in the manner which had been adopted in the committee. He had, on a former occasion, delivered his opinions on that subject, and he would not attempt to repeat them; but since the committee had thought proper to take an extensive view of the merits of the Treaty, he would follow the example which had been set him, and submit a few observations upon that subject--more particularly as he believed that no discussion would prove injurious to that instrument. He should not, however, attempt to take a very extensive view of the subject, as gentlemen who had preceded him had exhausted almost every part of the subject and left little to be said at that period of the debate.

Mr. G. said the Treaty embraced three great objects:

1. The execution of those parts of the Treaty of 1783, which remained unexecuted.

2. The settlement of disputes.

3. Stipulations for regulating the commercial and other intercourse between the two nations.

He said that it would be agreed on every side of the House that these objects were important; and if they had been justly and fairly secured by the stipulations of the Treaty, it would not be said that the committee ought to feel dissatisfied with that instrument. He believed that this was really the case, and that the United States had no just cause to complain of the terms therein contained.

Several objections, however, had been made to that part of the Treaty which provided for the execution of the Treaty of 1783. It had been said that this Treaty did not provide for every part of the Treaty of Peace which remained unexecuted; and that conditions were annexed to the execution of those parts of that Treaty which had been provided for highly injurious to the interest of the United States. He said, if those objections were well founded, they formed a very serious objection to the present Treaty: but he could not find them by comparing or examining the two Treaties. The only article of the Treaty of Peace which it was said had been violated by the British Government, and was not provided for by the present Treaty, was that which respected the negroes and other property of the American inhabitants. He said he would not detain the committee with many remarks on this part of the subject, as it had been very fully and ably explained by gentlemen who had gone before him: he only mentioned it for the purpose of reading that part of the journal of Mr. Adams, one of the American negotiators of the peace, which immediately related to this subject. The same journal had been already read by different gentlemen, in detached parts, but he wished to bring the whole journal at one view before the committee. He said, however, that he ought to repeat what had been already said on the floor, that the article in question did not want any exterior aid to assist the committee with an explanation. The words of the article were certain and explicit; they declared that the evacuation should be made "without carrying away any negroes or other property belonging to the American inhabitants;" and as it was universally agreed that the negroes who had been carried away consisted either of those who had fled from their masters during the war, on a promise of emancipation, or of those who had been taken as plunder in the period of hostility, no doubt could exist but that in all those cases the property in the negroes was changed; that they were no longer the property of American inhabitants, and of course it was no violation of the Treaty to carry them away. And whatever might have since been said on that subject, he was convinced that the American Commissioners, at the close of the negotiation, had no idea of including in the Treaty of Peace a stipulation to secure a restoration of negroes then in the possession of the British army. To evince this fact, he said he would now read the journal he had before alluded to. [He read some paragraphs from that journal.]

Mr. G. said that it appeared, from the journal he had read, on what ground the negotiation respecting the negroes stood. The British agent claimed a restitution of confiscated estates. To rebut this demand, the American Commissioners, among other things, claimed compensation for negroes and other property which had been taken as plunder in different periods of the war. Finding, however, that no agreement could be obtained on these contested points, they were all relinquished as impracticable; and the claim for negroes, which had been made for no other purpose than to rebut the claim for confiscated estates, was given up of course, and, at the moment of signing the Treaty, the article in question was inserted--not to secure a restitution of property which had been changed by the events of the war, but to secure by stipulation, that the evacuations should be made without any destruction, or carrying away property really belonging to the American inhabitants. He said that it had always been a matter of surprise to him that any gentleman had put a different construction on this article; and he thought the parties had done wisely in excluding from the present Treaty a claim which did not possess even the shadow of justice.

Mr. GALLATIN said he would not follow some of the gentlemen who had preceded him, by dwelling upon the discretion of the Legislature--a question which had already been the subject of their deliberation, and been decided by a solemn vote. Gentlemen who had been in the minority on that question might give any construction they pleased to the declaratory resolution of the House; they might again repeat that, to refuse to carry the Treaty into effect, was a breach of the public faith, which they conceived as being pledged by the PRESIDENT and Senate. This had been the ground on which a difference of opinion had existed since the beginning of the discussion. It was because the House thought the faith of the nation could not, on those subjects submitted to the power of Congress, be pledged by any constituted authority other than the Legislature, that they had resolved that, in all such cases, it was their right and duty to consider the expediency of carrying a Treaty into effect. If the House thought the faith of the nation already pledged, they could not claim any discretion; there would be no room left to deliberate upon the expediency of the thing. The resolution now under consideration was merely "that it was expedient to carry the British Treaty into effect," and not whether they were bound by national faith to do it. He would, therefore, consider the question of expediency alone; and, thinking as he did, that the House had full discretion on the subject, he conceived that there was as much responsibility in deciding in the affirmative as in rejecting the resolution; that they would be equally answerable for the consequences that might follow from either.

It was, however, true that there was a great difference between the situation of this country in the year 1794, when a negotiator was appointed, and that in which we were at present; and that consequences would follow the refusal to carry into effect the Treaty in its present stage, which would not have attended a refusal to negotiate, and enter into such a Treaty. The question of expediency, therefore, assumed before them a different and more complex shape than when before the negotiator, the Senate, or the PRESIDENT. The Treaty, in itself, and abstractedly considered, might be injurious; it might be such an instrument as, in the opinion of the House, ought not to have been adopted by the Executive; and yet, such as it was, they might think it expedient, under the present circumstances, to carry it into effect. He would, therefore, first take a view of the provisions of the Treaty itself, and in the next place, supposing it injurious, consider, in case it was not carried into effect, what would be the natural consequences of such refusal.

The provisions of the Treaty relate either to the adjustment of past differences or to the future intercourse of the two nations. The differences now existing between Great Britain and this country arose either from the non-execution of some articles of the Treaty of Peace, or from the effects of the present European war. The complaints of Britain in relation to the Treaty of 1783 were confined to the legal impediments thrown by the several States in the way of the recovery of British debts. The late Treaty had provided adequate remedy on that subject; the United States were bound to make full and complete compensation for any losses arising from that source, and every ground of complaint on the part of Great Britain was removed.

Having thus done full justice to the other nation, America had a right to expect that equal attention should be paid to her claims arising from infractions of the Treaty of Peace, viz: compensation for the negroes carried away by the British; restoration of the Western posts, and indemnification for their detention.

On the subject of the first claim, which had been objected to as groundless, he would observe, that he was not satisfied that the construction given by the British Government to that article of the Treaty was justified even by the letter of the article. That construction rested on the supposition that slaves came under the general denomination of booty, and were alienated the moment they fell in the possession of an enemy, so that all those who were in the hands of the British when the Treaty of Peace was signed, must be considered as British, and not American property, and were not included in the article. It would however appear by recurring to _Vattel_, when speaking of the right of _postliminium_, that slaves were not considered as part of the booty which was alienated by the act of capture, and that they were ranked rather with real property, to the profits of which only the captors were entitled. Be that as it may, there was no doubt that the construction given by America was that which had been understood by the parties at the time of making the Treaty. The journals of Mr. Adams, quoted by a gentleman from Connecticut, (Mr. COIT) proved this fully; for when he says that the insertion of this article was alone worth the journey of Mr. Laurens from London, can it be supposed that he would have laid so much stress on a clause which, according to the new construction now attempted to be given, meant only that the British would commit no new act of hostility? would not carry away slaves at that time in possession of Americans? Congress had recognized that construction by adopting the resolution which had been already quoted, and which was introduced upon the motion of Mr. Alexander Hamilton; and it had not been denied that the British Ministry, during Mr. Adams's embassy, had also agreed to it.

But when our negotiator had, for the sake of peace, waived that claim; when he had also abandoned the right which America had to demand an indemnification for the detention of the posts, although he had conceded the right of a similar nature, which Great Britain had for the detention of debt; when he had thus given up every thing which might be supposed to be of a doubtful nature, it might have been hoped that our last claim--a claim on which there was not and there never had been any dispute--the Western posts should have been restored according to the terms of the Treaty of Peace. Upon what ground the British had insisted, and our negotiator conceded, that this late restitution should be saddled with new conditions, which made no part of the original contract, Mr. G. was at a loss to know. British traders were all allowed, by the new Treaty, to remain within the posts without becoming citizens of the United States, and to carry on trade and commerce with the Indians living within our boundaries, without being subject to any control from our Government. In vain was it said, that if that clause had not been inserted we would have found it our interest to effect it by our own laws. Of this we were alone competent judges; if that condition was harmless at present, it was not possible to foresee whether, under future circumstances, it would not prove highly injurious; and, whether harmless or not, it was not less a permanent and new condition imposed upon us. But the fact was, that by the introduction of that clause, by obliging us to keep within our jurisdiction, as British subjects, the very men who had been the instruments used by Great Britain to promote Indian wars on our frontiers,--by obliging us to suffer those men to continue their commerce with Indians living in our territory, uncontrolled by those regulations, which we had thought necessary, in order to restrain our own citizens in their intercourse with these tribes, Great Britain had preserved her full influence with the Indian nations; by a restoration of the posts under that condition, we had lost the greatest advantage that was expected from their possession, viz: future security against the Indians. In the same manner had the British preserved the commercial advantages which resulted from the occupancy of these posts, by stipulating as a permanent condition a free passage for their goods across our portages, without paying any duty.

The remaining provisions of the Treaty had no connection with past differences; they made no part of the Convention which had been the avowed object of Mr. Jay's mission; they applied solely to the future intercourse of the two nations as relating to commerce and navigation; and had they been entirely omitted, our differences would have been nevertheless adjusted. It was agreed on all hands, that so far as related to our commerce with Great Britain, we wanted no Treaty. The intercourse, although useful perhaps to both parties, was more immediately necessary to England, and her own interest was a sufficient pledge of her granting us at all times a perfect liberty of commerce to her European ports. If we want to treat with her, it must be in order to obtain some intercourse with her colonies, and some general security in our navigation.

The twelfth and thirteenth articles had been obtained by our negotiator with a view to the first object. The twelfth article, however, which related to our intercourse with the West Indies, was found, upon examination, to be accompanied by a restriction of such a nature, that what had been granted by Great Britain as a favor, was rejected by the Senate as highly injurious. The thirteenth article, which related to the East Indies, and remained part of the Treaty, was, like the twelfth, conferring a favor limited by restrictions, and so far as he could depend upon the opinion of the best-informed judges on that subject, those restrictions put the trade in a more disadvantageous situation than it was before the Treaty. As the West India article had declared that we should not re-export any produce of those islands to Europe, so the East India article, at the same time it granted us the privilege, which we enjoyed before, and which we enjoyed because it was the interest of the East India Company to grant it to us, that of being admitted in the British seaports there, had forbidden our carrying any articles from thence to any place except to America; which regulation amounted to a total prohibition to export East India articles to China, or to obtain freights back to Europe; and, upon the whole, he could not help thinking, from what had fallen on that floor, and what he had heard elsewhere from gentlemen of great commercial knowledge, that if the East India commerce had been as generally understood in America as the West India trade, that so much boasted of article would have met the same fate in the Senate with the twelfth article.

During the American war, in the year 1780, so fully convinced were the neutral nations of the necessity of introducing that doctrine of free bottom making free goods, that all of them, excepting Portugal, who was in a state of vassalage to, and a mere appendage of Great Britain, had united in order to establish the principle, and had formed for that purpose the alliance known by the name of the Armed Neutrality. All the belligerent powers, except England, had recognized and agreed to the doctrine. England itself had been obliged, in some measure, to give for a while a tacit acquiescence. America had completely, at the time, admitted the principle, although they were then at war, [Mr. G. quoted on this subject the Journals of Congress of the year 1780, page 210, and of the year 1781, page 80,] and it had been introduced in every other Treaty we had concluded since our existence as a nation. Since the year 1780, every nation, so far as his knowledge went, had refused to enter into a Treaty of Commerce with England, unless that provision was inserted. Russia, for that reason, would not renew their Treaty, which had expired in 1786, although he believed that, during the present war, and in order to answer the ends of the war, they had formed a temporary convention, which he had not seen, but which, perhaps, did not include that provision. England had consented to it in their Treaty with France in 1788, and we were the first neutral nation who abandoned the common cause, gave up the claim, and, by a positive declaration inserted in our Treaty, had recognized the contrary doctrine. It had been said, that under the present circumstances, it could not be expected that Great Britain would give up the point: perhaps so; but the objection was not, that our negotiator had not been able to obtain that doctrine, but that he had consented to enter into a Treaty of Commerce (which we did not want, and which had no connection with an adjustment of our differences with Great Britain) without the principle contended for making part of that Treaty. Unless we could obtain security for our navigation, we wanted no Treaty; and the only provision which could give us that security, should have been the _sine qua non_ of a Treaty. On the contrary, we had disgusted all the other neutral nations of Europe, without whose concert and assistance there was but little hope that we should ever obtain that point, and we had taught Great Britain that we were disposed to form the most intimate connections with her, even at the expense of recognizing the principle the most fatal to the liberty of commerce, and to the security of our navigation.

Mr. G. was not going to enter into a discussion of the immorality of sequestering private property. What could be more immoral than war? or the plundering of the high seas legalized under the name of privateering? Yet self-defence justified the first, and the necessity of the case might, at least in some instances, and where it was the only practicable mode of warfare left to a nation, apologize even for the last. In the same manner the power of sequestration might be resorted to, as the last weapon of self-defence, rather than to seek redress by an appeal to arms. It was the last peace-measure that could be taken by a nation; but the Treaty, by declaring that in case of national differences it should not be resorted to, had deprived us of the power of judging of its propriety, had rendered it an act of hostility, and had effectually taken off that restraint which a fear of its exercise laid upon Great Britain.

Thus it appeared that, by the Treaty, we had promised full compensation to England for every possible claim they might have against us, that we had abandoned every claim of a doubtful nature, and that we had consented to receive the posts, our claim to which was not disputed, under new conditions and restrictions never before contemplated. That, after having obtained, by those concessions, an adjustment of past differences, we had entered into a new agreement, unconnected with those objects, which had heretofore been subjects of discussion between the two nations; and that, by that Treaty of Commerce and Navigation, we had obtained no commercial advantage which we did not enjoy before; we had obtained no security against future aggressions, no security in favor of the freedom of our navigation, and we had parted with every pledge we had in our hands, with every power of restriction, with every weapon of self-defence, which was calculated to give us any security.

From the review he had taken of the Treaty, and the opinions he had expressed, Mr. G. said, it was hardly necessary for him to add that he looked upon the instrument as highly injurious to the interests of the United States, and that he earnestly wished it never had been made; but whether, in its present stage, the House ought to refuse to carry it into effect, and what would be the probable consequences of a refusal, was a question which required the most serious attention, and which he would now attempt to investigate.

Should the Treaty be finally defeated, either new negotiations would be more successful, or Great Britain would refuse to make a new arrangement, and leave things in the situation in which they were, or war would be the consequence. Mr. G. said that he would, in the course of his observations, make some remarks on the last supposition; he did not think that the first would be very probable at present, and he was of opinion that, under the present circumstances, and until some change took place in our own or in the relative political situation of the European nations, it was to be apprehended that, in such a case, new negotiations would either be rejected or prove unsuccessful. Such an event would have perhaps followed a rejection of the Treaty even by the Senate or by the PRESIDENT. After the negotiator employed by the United States had once affixed his signature, it must have become very problematical, unless he had exceeded his powers, whether a refusal to sanction the contract he had made would not eventually defeat, at least for a time, the prospect of a new Treaty. He conceived that the hopes of obtaining better conditions, by a new negotiation, were much less in the present stage of the business than they had been when the Treaty was in its inchoate form before the Executive; and in order to have a just idea of the consequences of a rejection at present, he would contemplate them upon that supposition which appeared to him most probable, viz: that no new Treaty would take place for a certain period of time.

As he was not sensible that a single commercial advantage had been obtained by the Treaty, he could not mention the loss of any, as a mischief that would attend its rejection. If, however, the East India article was supposed to be beneficial, it must, on the other hand, be conceded that we had enjoyed every benefit arising from it for a number of years, without Treaty, and consequently, because it was the interest of the East India Company that we should enjoy them; and that it was not probable that circumstances would so far change there, during the short period to which that article was limited, as to induce that Company to adopt a different policy towards us.

But it was said that war must be the consequence of our delaying to carry the Treaty into effect. Did the gentlemen mean that, if we rejected the Treaty, if we did not accept the reparation there given to us, in order to obtain redress, we had no alternative left but war? If we must go to war in order to obtain reparation for insults and spoliations on our trade, we must do it, even if we carry the present Treaty into effect; for the Treaty gives us no reparation for the aggressions committed since it was ratified, has not produced a discontinuance of those acts of hostility, and gives us no security that they shall be discontinued. But the argument of those gentlemen, who supposed that America must go to war, applied to a final rejection of the Treaty, and not to a delay. He did not propose to refuse the reparation offered by the Treaty, and to put up with the aggressions committed; he had agreed that that reparation, such as it was, was a valuable article of the Treaty; he had agreed that, under the present circumstances, a greater evil would follow a total rejection than an acquiescence to the Treaty. The only measure which had been mentioned in preference to the one now under discussion, was a suspension, a postponement whilst the present spoliations continued, in hopes to obtain for them a similar reparation, and assurances that they would cease.

But, was it meant to insinuate that it was the final intention of those who pretended to wish only for a postponement, to involve this country in a war? There was no period of the present European war at which it would not have been weak and wicked to adopt such measures as must involve America in the contest, unless forced into it for the sake of self-defence; but, at this time, to think of it, would fall but little short of madness. The whole American nation would rise in opposition to the idea; and it might, at least, have been recollected that war could not be declared except by Congress, and that two of the branches of Government were sufficient to check the other in any supposed attempt of that kind.

But to the cry of war, the alarmists did not fail to add that of confusion; and they had declared, even on this floor, that if the resolution was not adopted, Government would be dissolved. Government dissolved in case a postponement took place! This idea was too absurd to deserve a direct answer. But he would ask those gentlemen, by whom the Government was to be dissolved? Certainly not by those who would vote against the resolution; for, although they were not, perhaps, fortunate enough to have obtained the confidence of the gentleman who voted against them, still, it must be agreed, that those who succeeded in their wishes, who defeated a measure they disliked, would not wish to destroy that Government, which they held, so far, in their hands, as to be able to carry their own measures. For them to dissolve the Government would be to dissolve their own power. By whom, then, he would ask again, was the Government to be dissolved? The gentlemen must answer, by themselves, or they must declare that they meant nothing but to alarm. Was it really the language of those men, who professed to be, who distinguished themselves by the self-assumed appellation of friends to order, that if they did not succeed in all their measures, they would overset the Government? And had all their professions been only a veil to hide their love of power? a pretence to cover their ambition? Did they mean, that the first event which would put an end to their own authority should be the last act of Government? As to himself, he did not believe that they had such an intention; he had too good an opinion of their patriotism to permit himself to admit such an idea for a single moment; but he thought himself justifiable in entertaining a belief, that some amongst them, in order to carry a favorite, and what they thought to be an advantageous measure, meant to spread an alarm, which they did not feel; and he had no doubt that many had contracted such a habit of carrying every measure of Government as they pleased, that they really thought that every thing must be thrown into confusion the moment they were thwarted in a matter of importance. He hoped that experience would, in future, cure their fears. But, at all events, be the wishes and intentions of the members of this House what they may, it was not in their power to dissolve the Government. The people of the United States, from one end of the continent to the other, were strongly attached to their constitution; they would restrain and punish the excesses of any party, of any set of men in the Government, who would be guilty of the attempt; and on them he would rest as a full security against every endeavor to destroy our Union, our constitution, or our Government.

But, although he was not afraid of a dissolution, he felt how highly desirable a more general union of sentiment would be; he felt the importance of an agreement of opinion between the different branches of Government, and even between the members of the same branch. He would sacrifice much to obtain that object; it had been one of the most urging motives with him to be in favor, not of a rejection, but only of a suspension, of a delay. But even as a matter of opinion, it was difficult to say which mode of proceeding, in this House, would best accord with the general sentiments of the people. So far as related to the petitions before them, the number of signatures against the Treaty exceeded, at the moment he was speaking, the number of those in favor of the Treaty.