Part 302

The British army, at the termination of the war, was at New York; the negroes, which constituted the species of property in question, were in the Southern States; so that if the article did not include that species of property taken in the course of the war, and in the possession of the British at the end of it, it was worse than nonsense. It never could have been supposed that, upon the first dawn of peace, the British would have left New York and invaded the Southern country, for the purpose of plundering the inhabitants of their negroes. The peace article itself was a sufficient security against this conduct, and of course no specific provision could have been necessary for that purpose. This was not only the uniform construction of the article by the United States, but, as he always understood and believed, Great Britain had acquiesced in the construction until the negotiation of the present Treaty. As an evidence of these facts, Mr. G. observed, that American commissioners were permitted to make a list of the negroes in the possession of the British at the close of the war by the British commander; that the list was entered upon the files of Congress; that there were resolutions of Congress claiming compensation for the property carried away in contravention of that article in the Treaty of Peace, perhaps without even the intimation of a doubt as to the construction; that, during the administration of Lord Caermarthen, he had always understood that the claim of compensation for property carried away, was admitted, whenever British subjects were indemnified for the debts due to them from citizens of the United States. But here he had to regret the want of the papers called for by this House, as they contained all the evidence upon which this important fact depends. Hence it appears that Great Britain herself had yielded her assent to this construction, and ought not to have been permitted to have withdrawn it afterwards. These circumstances seemed to him to be conclusive, and ingenuity itself would pause for arguments against facts so stubborn and irresistible.

Mr. G. then proceeded to the examination of the articles of the Treaty. The first article, he said, was declaratory of peace, &c., between the two countries, which, he said, was a very desirable thing, provided it could be established upon principles compatible with the national honor and the national interests. The second and third articles contained the stipulations for the surrender of the Western posts, and the conditions accompanying the surrender.

The surrender of the Western posts, he said, would be an extremely desirable object, if conformable with the Treaty of Peace, and it were unattended with any conditions.

Here, he said, he was desirous of giving credit to every part of the instrument which would admit of it, and was not disposed to exaggerate its imperfections. He was willing to admit that the surrender of the posts, even with the conditions annexed, was of some importance; but he would assert that the surrender lost a great portion of its value to the United States, in consequence of the conditions attached to it. He observed, two objects of primary importance were to be effected by the unqualified surrender of the posts. The one was to obtain the influence over the Indians in their neighborhood, which the British now possessed. The other, the participation, at least, in the fur trade carried on with those Indians. The conditions accompanying the surrender, will, in his opinion, very much impede the one, and completely defeat the other object.

The stipulation in the second article, which authorizes British subjects who are now living within the precincts or jurisdiction of the posts, still to continue and to reside there, with the free use of their property; and to elect either to remain British subjects or to become American citizens at pleasure, will, in his opinion, very much impede, if not wholly obstruct, the salutary influence of the United States over the numerous tribes of Indians in that quarter; which is one great object hoped for from the possession of those posts. The effects of the stipulation will appear more obvious, when it is compared with the stipulations in the next article, by which the trade with the Indians is regulated. The second object, to wit, the participation in the fur trade, he believed, would be completely defeated by the regulation of that trade in the third article; that article stipulates an equality of duties between American citizens and British subjects, a free communication through that country, upon an equality of portages and ferriages. These conditions, in his opinion, would secure a complete monopoly of the fur trade to Great Britain; because the superiority of the British capital employed in that trade, and the inferiority of duties paid upon goods imported for that trade into Canada, would, in his judgment, wholly exclude American citizens from a participation in that trade, through any channel in the United States. The United States had no mode left to counteract this monopoly but by a system of drawbacks, which appeared to him, from the nature and trade of the country, to be almost impracticable; or if not absolutely impracticable, it would compel us to purchase the trade at a price greater than it was worth. It appeared to him that Great Britain had foreseen these consequences, and that these articles are as well calculated to produce them, and to obstruct the views of the United States, as sagacity itself could have devised. Hence it appears to him that the value of an unqualified surrender of the posts is very much lessened by the accompanying conditions. The gentleman from Connecticut observed, that the surrender of the posts was absolute, and that no conditions were annexed to it. It is a sufficient answer to say that his observation is a mere criticism upon terms. If they be not conditions of the surrender, they are accompanying engagements, and are to be executed with good faith by the United States.

The sixth article was, in his judgment, highly objectionable. This article assumes the payment of all debts, interests, and damages, due from American citizens to British subjects, previous to the Revolution, in all cases where insolvencies have ensued, and where legal impediments to the recovery of the debts have existed. He would remark, that this was an assumption of debt by the public, which they did not owe, and never promised to pay, and that it is bettering the condition of the British creditor under the Treaty of Peace, without any obligation on the United States to do so. He said that, as, amongst the fashionable calumnies of the day, this article had been a fertile source of misrepresentation against the State he had the honor to represent, he was anxious to place this subject in its true light; and, as he professed to be well acquainted with it, he hoped to be indulged with some minutiæ of explanation. He said, this subject presented two aspects to the public; the one, as it respected States, the other, as it respected individuals of the United States. As to the first, he admitted that if a greater proportion of debts of this description were due from Virginia than from other States, which had not, however, been ascertained, and which he doubted, in the same proportion, as a State, Virginia would receive an advantage over the rest of the States, by a common assumption of the debts; but as it respected the individuals in that State who were not debtors, they stood precisely on the same footing with individuals in other States, because they were, in common with others, to contribute to the payment of debts which they never owed. It is of very little consolation to them that they live in the neighborhood of those whose debts they are to contribute to pay; for propinquity or distance can make no difference in the state of interest between the individuals who do not owe, but who are to contribute to pay. As a very small proportion of the inhabitants of Virginia come under this description of debtors, the phenomenon of an opposition of that State, to this particular article, is thus explained.

It is to be remarked, that this article contains no limits as to the amount of debts assumed by it, nor are there any precise data furnished for calculation. But it has been said, that if the debts be due, they ought to be paid, be the amount what it may. He said, that gentlemen should reflect, that the amount would depend very much upon the mode of adjustment, and that the mode adopted by the Treaty was the most objectionable that could be devised.

He observed, that the principle established for the adjustment of the debts, instead of preserving the conflicting interests of debtor and creditor, would produce a complete union of interests; and of course would furnish the greatest temptations to frauds against the United States from both debtor and creditor. Hence the amount of debts assumed by the United States would probably be greatly increased beyond what would be the amount, if the debtor and creditor should be left to the ordinary course of judicial proceedings to adjust their own differences, under the principle of opposing interests. To entitle the creditor to a claim upon the United States, it is necessary for him first to establish his demand against his debtor, and then to show that his debtor was solvent at the commencement of the late war, and has since become insolvent; and that some legal impediment had intervened to prevent the recovery of the debt. Hence it becomes the interest of both debtor and creditor to establish these facts, because the debtor will be relieved from his debt, by the assumption of the United States, and the claim of the creditor will be transferred from the individual to the United States, which he would, in all cases, prefer, particularly as the assistance of the debtor will often become necessary to facilitate the establishment of the debt. This, he said, was the natural operation of the union of interest produced by the assumption of the debts by the United States, and there was more danger to be apprehended from it, from the impossibility of checking it, by any vigilance on the part of the United States, and from the peculiar circumstances attending those debts.

The greatest proportion of debts remaining unpaid, he believed, stood upon open accounts. In many cases, when the debts were evidenced by specialties, payments had been obtained, either by the usual course of judicial process, or by compromise between the parties. There were two circumstances attending the open accounts which would give great scope to the fraudulent combinations between the debtor and creditor. The one respected the evidence, the other the substantial causes of difference in the accounts of the creditor and debtor. In the reign of George II. an act was passed for the more easy recovery of debts due to His Majesty's subjects from His Majesty's plantations in America. This act authorized the merchant in Great Britain to establish his debt against a colonist by affidavits taken before the commencement of the suit, and authenticated in the usual mode. This deprived the defendant of all opportunity of cross-examination, so essential to the discovery of truth, and the jury of all knowledge of the character and credibility of the deponent.

In Virginia, the affidavits taken in pursuance of this act, have been deemed incompetent to the establishment of the debt, because the act itself destroys the very nature and properties of evidence. Hence, in all disputed claims founded upon this act, judgments have been rendered for the defendants. If this should be deemed a legal impediment to the recovery, this whole description of debts would probably come under the description of debts assumed. He observed, that the words used in the Treaty were calculated, in his opinion, with a view to this construction, and must have been dictated by persons better informed of the nature of this business than he presumed the Envoy Extraordinary of the United States could have been.

The other circumstances arose from the nature of the remittances. These were generally made in tobacco. The sales of this article were intrusted solely to the merchant residing in Great Britain, and the American shipper had no check whatever upon the merchant making the sale. Upon tendering these accounts, the tobacco is often set down at a price very inferior to the average price of that article in Europe, at the time of making the sale. A great number of controversies have taken place upon this ground, which remain unsettled; but, if the United States should assume the debts of the individuals thus circumstanced, they would have no inducement to contest these accounts in a course of judicial proceedings, and the promise of exoneration from the creditor, will often induce the debtor to facilitate the establishment of the claims against the United States. He said he had not overlooked the clause in this article of the Treaty, which compels an assignment of the claim from the creditor to the United States, but that would have little or no operation to check the practice invited by this article, because the debtor is presumed to be insolvent before the assignment is made, and he believed the United States would be but unsuccessful collectors from insolvent debtors.

From these circumstances, he concluded, that this assumption of debt, without any obligation for so doing, was extremely improper, particularly when it is recollected that this article sweeps away all acts of limitation, and relates to the whole extensive scene of business carried on in the United States, from the extremes of New Hampshire to the extremes of Georgia, for an unlimited time before the Revolution. He observed, if he were to make a conjecture as to the amount, it would be a loose one; but if he were to choose between indemnification to the American merchants for recent spoliations committed upon their commerce, or the payment of these debts, he should not hesitate to prefer the first alternative; because, to that there were known limits; to the other there were not, nor any data for calculation under the mode of adjustment prescribed by the Treaty. He, therefore, cautioned gentlemen against the assumption of this unascertained debt, for he believed it would be attended with a responsibility which they could not answer to their constituents, nor would the responsibility be alleviated by the recollection of the merits of the individuals for whose benefit it is made. The increase of the debt of the United States by these artificial means, without any obligation to do so, he thought highly objectionable.

The 10th article, he said, was of a very extraordinary complexion. It was remarkable, both as to the matter it contained, and the manner in which it was expressed. It is in the following words:

"Neither the debts due from individuals of the one nation to individuals of the other, nor shares, nor moneys which they may have in the public funds, or in the public or private banks, shall ever in any event of war, or national differences, be sequestered or confiscated, it being unjust and impolitic that debts and engagements contracted and made by individuals having confidence in each other and in their respective Governments, should ever be destroyed or impaired by national authority on account of the national differences and discontents."

Mr. G. remarked, that this article also had assumed the resemblance of reciprocity; but no reciprocity in fact.

British subjects have great sums, both in public and private funds, in the United States. American citizens have little or no property in public or private funds in Great Britain. Hence the evident and substantial inequality of this reciprocal stipulation. On the other hand, American citizens have a great share of property on the water, with very little naval protection, and of course subject to the naval superiority of Great Britain.

If, therefore, Great Britain had stipulated, in case of war, that in consideration of a refusal on the part of the United States, to sequestrate property of British subjects upon land, she would not molest the property of American citizens upon water, there would then have been a substantial, instead of a nominal reciprocity; as the article now stands there is an important right conceded, and no compensation obtained.

This article, however, has been highly applauded by a particular description of persons interested in it, in consequence of the affectation of morality professed by it.

It has been said to be dishonest and immoral to take the property of individuals for the purpose of compensating national wrongs. He observed, that he could see no difference between the morality of taking the property of individuals upon water, and the property of individuals upon land. The difference of the element could make no difference in the morality of the act. However strongly, therefore, this moral impulse was operating upon the American Envoy whilst engaged in the construction of this article, it had entirely dissipated before he had arrived at the 25th article; for, in that article, the principle of privateering is not only admitted, but its operation facilitated; so that, unless the interest of Great Britain is to be the criterion of the Envoy's morality, what he has gained by the morality of the 10th article must be at least balanced by the immorality of the 25th. But, Mr. G. remarked, that sequestration was always admitted as part of the law of nations, and hence he presumed it was not immoral under certain circumstances. He said it appeared to be the opinion of some, that where the property of an individual was sequestered on account of the act of his nation, that the individual was to sustain the loss, but that was not the case. The sequestration itself imposes upon the government, to which the individual belongs, an obligation of reimbursement. Hence the sequestration does not ultimately rest upon the individual, but upon the Government, for whose wrong the property was taken. This is also conformable to the laws of nations. It was the course pursued by Great Britain for all sequestrations made during the American war, and is the course which would be pursued by all nations.

Mr. G. said, that war itself was immoral in most cases; and justified, in his opinion, only in the case of self-defence; but if a stipulation had been inserted in this Treaty, which prohibited the United States from declaring war, it would have been justly and universally reprobated. The present article prohibits the United States from resorting to the best means not only of preventing war, but the most efficacious means of supporting it. Hence, the surrender of the right was the most impolitic concession, and is infinitely aggravated by its being a voluntary concession; no equivalent being received in return. Mr. G. said, it was dishonorable to the United States because it evidenced a want of confidence in the discretion of the constituted authorities. The right of sequestration is admitted to be essential to national sovereignty; but, lest it should be indiscreetly used by the United States, its guardianship is transferred to Great Britain. Mr. G. said, he viewed sequestration as an extraordinary remedy, to be resorted to only on extraordinary occasions. And although he would admit that but few cases would justify a resort to it, yet it was one of our best instruments of defence, considering our relationship to Great Britain, and ought not therefore to have been surrendered. He said, too, that this restraint was imposed upon the United States for an unlimited time, and was the more objectionable, as it was a species of legislation against the discretion of legislation.

Upon the whole, he conscientiously believed the Treaty to be a bad one. He believed it contained the most complete evidence of British interference in our internal affairs, and had laid the foundation for the further extension of British influence. It has restricted the exercise of some of the important rights of national sovereignty. It has voluntarily hazarded the neutrality of the United States in the present European war, and destroyed all pretensions to its character of impartiality. It has not afforded protection to our neutral rights, which was amongst its great objects; and in the adjustment of the differences resulting from the inexecution of the Treaty of Peace, it is unequal and unjust. All these important circumstances considered, and when it is also considered that the British persevere in impressing our seamen and seizing our vessels, in violation of the clearest rights of neutral nations, even since the signing of the Treaty, he could not consent to be the instrument of giving it efficacy. He believed that it was one of those extraordinary cases which justified strong and extraordinary resistance.

When Mr. GILES had concluded his speech,

Mr. GOODHUE addressed the Chair as follows: Mr. Chairman: Much noise has been made, and every art has been practised to prejudice the people against the Treaty now under consideration. I mean to look at it and see if it be the horrid thing it is represented to be, and particularly to examine the commercial part, to know whether we have made a good bargain or not, I will take notice of some objections that have been made, and then touch on the great evils that may justly be apprehended, if we refuse to carry it into effect. And here let me observe, the subject is the most momentous that ever came before this House, and I mean to put no false colors on it, or to paint any evils that will follow a rejection, beyond what, in such an event, I most conscientiously believe will be realized. I will now state what new sources of commerce are opened to us by the Treaty that we had not before, and then see what we have given for them. 1st. We have got by the Treaty a perfectly free trade across the land, and by means of the lakes with Canada, that we had not before, and on the same terms with British subjects, which I estimate as a great advantage to this country; for it is evident, that we can introduce into Canada--up the North river and across the Lakes--almost any kind of goods, at less expense and on better terms than the British can up the river St. Lawrence, which is very lengthy, and frozen up six or seven months in the year. Having this advantage, can it be doubted that we have not industry and enterprise to improve it? No, sir, the enterprise of our people is such, that we shall unquestionably carry on almost all the trade of Upper Canada, and that great Western country which will be opened to us; by which means we shall have at least an equal share in their fur trade also with them, which we have so long wanted. But it is said, the portages or carrying places being common to both, they will run away with the greater part of the trade. Why so? I am not afraid but the citizens of the United States, if they are put on an equal footing with others, will make their way equal with any people on earth. But it is said, by way of lessening the advantages of this trade, that goods imported into Canada pay little or no duty, and the goods that we import are by our laws subject to high duty, and that no drawback of the duty can be established upon their being sent into Canada, and therefore, we cannot supply them on equal terms. To this, I reply, that I do not know what duty they impose on goods when imported into Canada, but I believe it is considerable; and I do not believe but it is possible to devise a plan for a drawback of the duty which may have been paid on our goods when they are sent into Canada, and that at any rate the ease by which we can send them there up the North river, compared with their being introduced by the St. Lawrence, will more than compensate for any difference of duty, in case a drawback should not be admitted.

2. We have got established by the Treaty, a right to trade with all their settlements in India on the same terms with their own subjects, and thus we have laid open to us a free trade with those vast possessions of theirs in that quarter of the globe, which, it is said, contains twenty or thirty millions of inhabitants. Let me inform the committee, that our trade to India is already very great and profitable. In the town of Salem only, in which I live, we have thirty sail of Indiamen, and doubtless, in the United States, the whole amount must be nearly a hundred; and the number will increase in such a manner, as by our superior enterprise, industry and economy, that we shall not only supply our own wants, but those of the West Indies and Europe, in a great measure, with India articles; for though, by the Treaty which gives us this free trade, we are not permitted to carry India goods from their settlements directly to Europe, yet there is no doubt, in my mind, but we can export from hence thither cheaper than they can get them any other way, for this obvious reason, because their trade to India is carried on by their companies, in which despatch and economy is by no means so much attended to, as it is when managed by an individual. But it is said we had this trade before the Treaty. I answer, it is true we had, but it was only by way of indulgence, subject to be deprived of it whenever they thought fit; and let me ask, is it not vastly better to have it secured as a right, than to have it rest on the precarious tenure of indulgence? Here, Mr. Chairman, let me remark, that they have granted to us this free trade to India, which their own subjects (except the India Company) are entirely shut out from. What must be the feelings of British subjects when they see their Government has given to strangers a perfect freedom of trade to their India settlements, and shut them out from it altogether? And what must be their astonishment when they hear that some people amongst us think that Great Britain has conferred no favor upon us by doing it? Hear what the famous Mr. Grattan, the great Irish patriot, said in the Irish Parliament, on the subject:

"This very America, which the British Minister insulted and then crouched to, had, by the late Treaty of Commerce, been admitted to all the British settlements in the East and West Indies, to the latter of which Ireland was only conditionally admitted, and from the former unconditionally excluded; yet Ireland was a loyal, attached nation, and America an alien."

These are the commercial acquisitions we have obtained by the Treaty; and let me ask, what have we given to Britain in return for them? I answer, nothing more than they have all along enjoyed in our ports, by the laws of the United States, in common with other foreign nations. No new commercial advantages have we given them; they can come here now on no better terms than before. But, it is said, we have tied our hands by the Treaty, that we will not lay any greater duties on their commerce than we do on all other foreign nations. Pray, let me ask, if Great Britain have not equally tied their hands? And can we be so unreasonable as to suppose that they would ever consent to a Treaty that had not such terms of reciprocity?

It is again said, by way of objection, that they have reserved to themselves the right of countervailing the difference of duty, which we, by our laws, have established between our own citizens and foreigners, and that she will now exercise that right by imposing equal duties on our vessels in the ports of Great Britain. Let me answer this objection to the Treaty, by asking if she had not this same right, and even an unlimited one, of imposing what duties she saw proper on our vessels in her ports before the Treaty? She did not see fit to exercise it then, neither is it probable she will now. And, lest it should be said she will now do it, because we are restrained by the Treaty from increasing the duty on her ships beyond what it now is, and, therefore, she has not the same fear operating to prevent it that she had before, let me remark, that if she was restrained by any such considerations, this same restraint would be in force again in two years after the present war ceased, being the period of the existence of those articles of the Treaty--a time so short as to render it highly probable she will not think it worth while to make the experiment.

A great cry has been made against the commercial part of the Treaty, and I must confess I never could see on what ground, for it is a certain fact we have given Great Britain no new privileges in our Atlantic ports by the Treaty, and no other in their intercourse by the way of Canada, than they have given us; and, therefore, it may fairly be said that, by the Treaty, we have given them no new commercial privileges they were not before enjoying in our ports; and they, on their part, have given us considerable; and consequently, on our side, the bargain must be a good one.