Part 305

Mr. PAGE said, that he had heard no arguments in favor of the resolution before the committee, but such as might be used to influence a vote at any other time, and upon almost any occasion; for we are told that war, or popular discontent, and great inconvenience and distress to merchants, underwriters, and others, will be the consequence of its rejection. If such threats can influence this House upon the present occasion, an unhappy and mortifying comparison may be made between the Congress of 1776, and that of the present day. They despised and encountered the dangers of war actually commenced. He wished, when members were disposed to mention their fears of such dangers, they would first clear the galleries; for such communications ought to be secret. Did members really believe that Great Britain will declare war against the United States, if this House should refuse to be accessary to the violation of the constitution, the destruction of their own rights, of the rights of neutral nations, and of the interests of their constituents? If they do believe this, is their belief founded on conjecture alone, or on the negotiator's declaration, that the British Ministers threatened him with war, declaring that war should be the consequence of a rejection of the Treaty? If the latter be the case, and nothing less can justify such repeated assertion that war will be the consequence of a refusal to carry the Treaty into effect, the Treaty ought to be deemed null and void on account of that threat; and if the former, they may be assured that they are mistaken, and that Britain is not so frantic as to engage in a war with the United States upon such slight grounds. The citizens of the United States wish not to be at war with the British nation; nor can the people of Britain desire a war with them. Both must wish for peace, and a full commercial intercourse upon liberal terms; and as the Executive authority of both countries are well disposed to each other, and have, as far as in their power, carried the Treaty into execution, what reason can be assigned why we should be involved in a war? It has been said that the United States will be obliged to declare war, on account of the British refusal (which may be expected) to deliver up the posts, and to make compensation for spoliations of our commerce; but I see no necessity for such conduct. For my part, should Britain never give up the posts, I would not vote for war, nor be at the expense of a single regiment to take them; nor would I go to war to recover losses sustained by spoliations. For, if we reject the resolution before you, sir, we may be at liberty to pass such a bill as we I passed in the year 1794, by a majority of twenty-four members, and for which thirteen Senators then voted; and should the Senate concur with us in passing it, we might use it more effectually than a declaration of war for the recovery of the posts, and reparation of wrongs. As to war, as my colleague yesterday said, I have reason to deprecate it, for the sake of my constituents, and for my own sake; for I have experienced enough of its evils; but I cannot think that I ought to sacrifice their dearest interests merely from an apprehension of the dangers of war. The arguments, therefore, which I have heard, cannot induce me to vote for the resolution before you. Indeed, sir, I must vote against it; because I think that the Treaty is unconstitutional and pernicious; and even if it were constitutional in every respect, and as advantageous to the United States as it has been represented, I should think it impolitic and dishonorable in this House to lend its aid to carry it into effect during the present war, and a continuance of the British depredations on our commerce, and impressment of our seamen. The Treaty appears to me unconstitutional, because it takes from Congress that very power with which it was invested by the constitution, and to invest them with which, the constitution itself was expressly formed; a power which I think should be held as precious and unalienable. I mean the power of regulating the commerce of the United States with Great Britain; so as to induce her to fulfil all the conditions of the Treaty of Peace, and to put the trade of the United States with her upon a footing of reciprocity. It appears also unconstitutional, because it violates a solemn act of Congress passed in conformity to the express words, and I may say, in obedience to the injunction of the spirit of the constitution: I mean the act for establishing a uniform rule of naturalization, and this violation, too, operates partially, and in favor of British subjects alone. It is moreover unconstitutional, because it interferes with the authority of the Judiciary, by establishing a Court of Commissioners, a kind of supreme court of appeals, within the United States, with powers to proceed, unknown to our laws; with temptations to defendants to make no defence; with a right to bind the United States to pay debts which they owe not, and to any extent or amount which that court may think fit to decree; and it is unconstitutional, because it authorizes the PRESIDENT to create certain offices, and annex salaries thereto. In these instances, at least, I think the Treaty unconstitutional; for I think that Congress cannot authorize the PRESIDENT to do away the power of Congress or to establish a court of appeals superior to the Federal Supreme Court; that, whatever would be unconstitutional, if done by Congress, cannot be constitutional if done by the PRESIDENT and British King. But, sir, if the Treaty were not unconstitutional, that is, if the PRESIDENT and Senate had a right to deprive Congress of the power it claims, and to interfere with the Judiciary, yet the exercise of that right in the present case, ought to be viewed as so pernicious to the United States as to render the Treaty null and void; or, at least, it ought to be viewed as an argument of sufficient weight to induce this House to refuse their aid towards carrying this Treaty into operation. And were it even constitutional and advantageous to the United States in every article, yet, as it acquiesces in a violation of the rights of neutral nations in favor of Great Britain, and in some instances, to such a degree as to be thought even by the PRESIDENT himself, to afford just ground for discontent on the part of our allies, it will be dishonorable and highly impolitic in this House to be in any manner instrumental in carrying it into effect. As it has not been in the power of the United States to assist their Republican allies, when fighting in fact their battles, the least they can do, or the least that the world and those allies can expect from them, must be, that they will not put the enemies of those allies into a better condition than they were by making Treaties with them during the present war.

Mr. FINDLAY said he should not think it necessary to resume any of the arguments relative to a principle which had already been settled in that House; yet, he observed, that every gentleman who spoke on the subject seemed to argue what were the rights of that body upon the subject of Treaties, as if no question had already been had on the occasion.

It had been insisted upon, notwithstanding the decision which had been had, that a Treaty was a law when it came before that House, and they had no power but to appropriate to carry it into effect. He said this opinion was directly contrary to the opinion held on the constitution at the time it was accepted in Pennsylvania. Moral discretion, he said, was necessary to be exercised in every decision of that House, except the constitution had prescribed to them some positive rule of action. In ratifying the constitution in the State of Pennsylvania, this was the understanding of it. The minority in the convention did not wish so much power placed in the Executive, and he appealed to gentlemen in that convention, if this was not the doctrine asserted by the majority in answer to the objections of the minority. Indeed, if they were not to have exercised a moral obligation upon the Treaties, the constitution would have expressly said so, as in the case of the PRESIDENT's salary, the pay of the Judges, Army appropriations, &c. If they had not been limited in these articles by the constitution, they certainly would have had the power to have changed them if they had thought proper.

But, passing over this consideration, there had been pretty large views taken of the manner in which the Treaty came before them. The gentlemen from New York and Virginia had entered into the subject. He must beg leave to differ from the gentleman from New York as to the matter of fact relative to that House in the concerns of Government two years ago. He had no apprehensions at the time the Envoy was sent to Britain to negotiate a Treaty, that Britain would have commenced a war if that measure had not been adopted; so far from it, that a majority of that House thought differently. He had no doubt that war, and the destruction of liberty altogether, had been meditated by Great Britain; but before the negotiation was commenced, circumstances occurred which caused her to give up this extravagant design. Before the negotiator was appointed, it is well known that the plundering Order of the 6th November was revoked. The gentleman from Virginia (Mr. GILES) had given a very good narrative of events in Europe, which fully showed the cause of this change of conduct. That gentleman had also gone through the Treaty, article by article, in a manner so much to his satisfaction, that he should not attempt to follow him. Before the negotiation took place, we had suffered considerably by British spoliations, and that House thought of various means to make it the interest of that power not to continue their depredations. First one plan was proposed and then another. It need not be mentioned that amongst these was the plan of sequestration, the future power of doing which this Treaty proposed to deprive them of. It was discussed in the House, but no question taken on it, to show that negotiation was not thought necessary. He mentioned a conversation which had taken place betwixt a gentleman then in the Cabinet (now no more) and himself, which confirmed his opinion of the propriety of the measures. A bill for regulating commerce in such a manner as to make it the interest of Britain to refrain from injuring us, and redress the wrongs we had suffered by spoliations, was agreed to by the House, but negatived in the Senate. So far from being then afraid of war, they were more and more convinced that it was in their power to make it the interest of Britain to refrain from their acts of violence towards us.

Mr. MOORE.--Mr. Chairman, I rise with diffidence to give my sentiments on so important a question as that now before you, especially as I have been preceded by gentlemen whose superior abilities have enabled them to investigate the subject with more accuracy than I am capable of. I consider the object as important of itself. It is rendered more so by the warmth with which it has been discussed--the irritation it has produced, both in this House and on the public mind. I lament that improper motives should be imputed to gentlemen on either side. I am disposed to believe, that gentlemen aim at doing what will best promote the public interest. I entertain no suspicion of designs against the Government by any member of this House, or any branch of the Government. Gentlemen have predicted a war and dissolution of the Government, if provision is not made for carrying the Treaty into effect. I have no apprehensions of either. It is highly improper to attempt to influence the votes of members by such declarations. I hope gentlemen will believe that members who differ from them in opinion, are equally zealous with themselves in discharging their duty, and have firmness enough to repel every attempt to intimidate. For myself, I have equal confidence in every part of the Union, that they have no wish to dissolve it. The suggestion is unfounded, and ought not to be made.

Mr. Chairman, the vote which I shall give on the question before us, will, in some degree, be influenced by a constitutional principle, which I consider as involved in the decision. On the resolution calling for the instructions given to Mr. Jay, and other papers relative to the Treaty, it was insisted on by members of this House, that the Executive has a right, by Treaty, to supersede all Legislative powers vested in Congress by the constitution. The Executive gives the same construction to the constitution. If, under these circumstances, I vote for the resolution before you, I consider myself as admitting, as recognizing the principle contended for. This I cannot do. On the admission, or rejection of this principle, I am of opinion, the future course, the future operations of Government materially depend. By this it will be decided, whether it is wholly Executive or not: whether this House depends on the courtesy of the Executive for their right to interfere in legislation.

It has been argued, that this extensive, unlimited power, was necessarily vested in the Executive, subject only to the control of the Senate. In order to support the sovereignty and independence of the small States, I do conceive that a branch of the Legislature in which the States are equally represented, was all that could be claimed. Can it be conceived to be necessary, just, or proper, that the regulation of all the important interests of the Union should be at the disposal of the Executive? Can gentlemen seriously believe that the citizens of the United States, who opposed, at so great an expense of blood and treasure, the claim of Great Britain to tax us unrepresented, would admit all their interest to be represented by so unequal a representation as that contended for? It has been asked, Is not the Senate as worthy of the confidence of the citizens of the United States as this House? I will ask, are they more? This Legislative power is restrained and checked by the constitution; particular modes and restrictions are prescribed, but no checks are imposed on the Executive. Were the people jealous of this House, and not of the other branches? Did they suspect the Legislature of doing wrong? When this House was connected with the other branches, were they to regulate their interests; and have they reposed unlimited confidence in the other branches when acting without this? Did they consider this House as the only branch from which any danger was to be apprehended? It is impossible, yet this must have been the fact, if the construction given to the constitution is a just one.

A gentleman from Connecticut has said, that gentlemen had prejudged the Treaty; they come forward with prejudices against it, determined to vote against it. It is not so with me. I was strongly inclined to vote for it; to make some degree of sacrifice rather than defeat it.

Gentlemen, on reflection, must be convinced that the question has not been prejudged. The Envoy was appointed at the moment when this House was deliberating on means for preventing further spoliations on our commerce. Commercial regulations were proposed, and other means from which they might have been forced to abandon their unjust and oppressive system. I remember well the arguments then used were convincing to my mind; that those were the only weapons of defence within our power; that they would be effectual. But these were arrested by the despatch of an Envoy Extraordinary. Some of the leading features of the Treaty were then predicted; the event has corresponded with those predictions. Principles were then discussed, which the Treaty contains, before the negotiator was appointed.

This shows there was no prejudging in the manner gentlemen have stated. By this Treaty all the measures then contemplated by the Legislature are arrested; an eternal veto is imposed against our ever carrying the measures then contemplated into effect. This shows that the Executive claims not only the constitutional right of forcing this House to pass what laws they please, but also, by Treaty, to declare what they shall not do.

We have passed a resolution, which is now on your files, declarative of the sense of this House as to their constitutional rights. The question is, however, undecided. The Executive and Senate will proceed to act on their own construction. They may, on their own construction, make a Treaty, which will imply a still more imperious and commanding necessity to provide for its execution, than even the present case. This necessity may force a relinquishment of the right contended for by this House. It may force an acquiescence in the Executive regulating all the interests of the Union. I believe it was not the sense of the framers of the constitution. It is not the sense of the people who adopted it. It never can be mine.

The merits of the Treaty have been ably and accurately discussed. I will make but a few remarks on it. I must disagree with the gentleman from Connecticut, who mentioned, as a well-known principle in judging of Treaties, that all property, (by fair construction, and by the established law of nations,) if not excepted particularly in a Treaty, remains in the same state in which it was found when the Treaty was made. Those in possession retain the possession. From this he has concluded, that negroes, taken during the war, had become the property of the captors, or rather, were emancipated. The words of the Treaty of Peace are, "negroes and other property."

This plainly shows, in his opinion, that, by negroes, was not meant those taken during the war; they were not American property. The property was changed. It could only be intended, such negroes as were taken after the peace. I will ask, was it ever known in a Treaty, that a stipulation was made to give up property plundered after the peace? Is it not an established principle amongst all civilized nations, that plundered property shall be given up? Is it necessary, or was it ever thought so, to make it a stipulation by Treaty? I believe, if his construction is a just one, it is a new case, the provision was at least nugatory.

But if the principle he lays down is a just one, how does it happen that debts due to British subjects, paid by the debtors into the Treasury under the sanction of a law, and appropriated to the use of the State, are now recoverable by the British creditor? An important case of this kind has been decided in the Federal Court, and judgment given for the British creditor. Was the property less changed by the law of a sovereign and independent State, than by the proclamation of a British commander? This cannot be. The fact is, however, that in two cases, found in the same instrument, there are claims founded on the same principle; the one, a British claim, is established, the other, a claim of the United States, is rejected. This involves in it an absurdity. By those opposed modes of construction, an important claim of the citizens of the United States is given up by the Treaty, a claim against them to a great amount is established.

The claim as against us is admitted; our claim is rejected, in cases where the same principle fairly applies, and where, by gentlemen's own showing, there is no dissimilarity which can justify such opposite constructions. There is another provision of the Treaty, by which an important interest has been sacrificed. British subjects held lands within the United States before the war; many of those claims were barred; the claimant being an alien could not recover; his being an alien was the only bar. It was effectual--such has been the decision of the Courts. But by the Treaty, being aliens shall not bar the claim of British subjects--thus, many of the extensive claims are restored. In some of the States more than half their territory will be revested in proprietors. What could induce this grant? What equivalent do we receive for this sacrifice? Sir, I am constrained to think the Treaty a bad one, in those instances I have mentioned, more so than in any others. And when I connect with the Treaty itself the important constitutional question which has been discussed, I cannot vote for the resolution before you.

Mr. KITTERA.--Since the 4th of July, 1776, the Councils of America have not been agitated by so momentous a question as that at present before the committee. At the period to which I allude, the question was, whether we should tamely submit to an abject and disgraceful slavery, with all its concomitant evils, or, by a Declaration of Independence, an exertion of our internal strength, with the advantages of foreign aid, make a bold and manly effort to obtain the blessings of freedom--the solid rewards of well-earned liberty. The present question is, whether we shall supply the means of carrying into execution a Treaty of Commerce and Amity with a powerful nation, entered into by a Minister of the United States, and solemnly ratified by the authorities constituted by the people for such purposes; or, by refusing, perhaps unconstitutionally refusing those means, hazard the peace, interrupt the prosperity, and tarnish the honor of the country? In a question of such magnitude, prudence calls me to pause, duty to reflect. My country's faith is plighted, a solemn contract is made; it would therefore be unwise and impolitic, as it concerns the interest, and dishonorable, as it regards the character, of this nation, in the infancy of its existence, to violate so solemn a contract.

Two causes have contributed much to prejudice the American mind against the Treaty. 1st. An enthusiasm for France, struggling in the cause of liberty, against the combined Monarchs of Europe, in which combination, the very power with whom the Treaty was made, formed a prominent part. 2dly. Strong resentment against Britain, for injuries received during a tedious and cruel war, and those injuries renewed by a detention of our Western posts, exciting and aiding the savage Indian tribes in the commission of hostilities on our frontiers, with strong indication of a design to contract our boundaries, and their lawless depredations on our commerce. I will not add, that there are amongst us some irreconcilable enemies to this Government, who opposed its adoption, predicted its downfall, and whose pride and political consequence are suspended on the fulfilment of this prediction. For the honor of human nature, and for the character of my country, I hope there are few to answer this description; if, however, there are any, the poet's execration is to them peculiarly applicable: "Cursed be the man who owes his greatness to his country's ruin?"

There are some things in which the candid part of those who hear me will not disagree. 1st. That our Envoy was a wise and honest man; he was a tried patriot, skilled in diplomatic life, and rendered to his country important services during the late war. The tale of his receiving British gold was made for children and fools, and need only to be told, to be disbelieved. 2dly. He made the best bargain he could. I will not mention, in proof of this, the ratification of the contract, eight months afterwards, by the PRESIDENT, (in whom this country has certainly an unbounded confidence,) with the advice of two-thirds of the Senate; but I have proof positive. The letter of Mr. Pinckney, our Minister resident at London, and conversant with every part of the negotiation, in strong and decided terms advises Mr. Jay to accept the contract as the best that could be procured, and as one that would promote the interests of this country. 3dly. If negotiations had been unsuccessful; if the Treaty, on the terms offered, had been rejected, war must have ensued. Our national honor would have forbidden a tame submission under so many insults and injuries; such submission would have invited new insults, and our own safety would have made resistance and retaliation necessary.

The Treaty naturally presents itself under two general heads: 1st. Such parts of it as are permanent, to wit, the first ten articles. 2dly. Such parts of it as are temporary, to continue for two years after the expiration of the war in which Great Britain is now engaged. Three great points are embraced under the first arrangement: a surrender of our Western posts, compensation for the spoliations committed on our commerce, and the payment of British debts. However lightly my colleague from the western part of Pennsylvania (Mr. FINDLAY) spoke yesterday of the Western posts, I consider the acquisition as an important treasure to this country. It will not only increase the value of our Western lands, and open to us a new source of commerce, but it will relieve us from the expense and horrors of an Indian war. Those were the sentiments of the gentleman himself, on this floor, two years ago. The spoliation on our commerce has generally been estimated at five millions of dollars. On a rejection of the Treaty, I wish the gentlemen in the opposition to point out how the American merchants are to be reimbursed for their loss. Nothing can be expected from new negotiations. It would be a solemn mockery of justice to the claim of those citizens. Payment out of the Treasury has been talked of, and a resolution to that effect is now on your table. This can never be done. It would be without a precedent, and Congress has heretofore refused the claim. And how can you discriminate such claims from those rising from savage depredations on your frontier settlers? The protection of the Government was, at least, as much due to the peaceable farmer as the speculating merchant; and if losses have arisen for want of such protection, compensation is as justly due in the one case as in the other. But why are we to subject the Government to this payment, or our citizens to this loss, when compensation is offered by the nation that has done the wrong? As to British debts, the committee have had various calculations of their amount.

I believe some of the estimates have been exceedingly exaggerated. If they are even half the enormous sum that has been stated on the other side, we have not much difficulty in accounting for the extraordinary opposition to the administration of this Government that has appeared in a certain quarter of the Union. Whatever may be the amount, the nation is bound by the strongest ties of justice and national honor to secure the payment.

Mr. HOLLAND said, he would submit some considerations to the committee, that, together with those which had been given, would influence his vote upon the resolution on the table; a subject, as had been said by all who advocated the resolution, of the first importance--an issue on which depended peace or war. He said, he considered the question of some importance, particularly as it related to their constitutional powers; but the conceptions of gentlemen had exaggerated the result of the present question. It was nothing more or less than, would they or would they not now appropriate moneys to carry the British Treaty into effect? He said, he had ever felt a disposition to that purpose; not because the faith of the nation, as had often been said, was pledged; not because they were under moral obligations, as had been contended for--neither of which he could admit; but because a respect was due to the negotiator, to the Senate who advised, and to the PRESIDENT who ratified it; for, it was to be presumed, until the contrary appeared, that they exercised their judgments for the good of the nation. But it was possible the means they have adopted may not produce the end intended; they may have been mistaken.

When he first examined the instrument, he was in hopes that there was something extrinsic existing, which, when communicated to him, would do away the exceptions on the face of the instrument, and therefore he was silent and suspended his judgment. It was for that purpose he had voted for the papers relative to the negotiation to be laid on the table, in hopes of obtaining further information, previous to his being called upon to carry it into effect. But, unfortunately for him, no further information was to be obtained. The useful papers, an innocent and humble request, were not granted. He was not possessed of any other information than could be drawn from the instrument, from the writers on that subject, and the arguments that had been advanced by the gentlemen who had advocated the resolution; to the whole of which he had with candor attended, and with regret informed the committee, that nothing had been advanced, that had convinced him of the reason, propriety, necessity, or fitness, of the stipulations contained in the instrument.

Those gentlemen, instead of reasoning, have endeavored to alarm. They have said that, if we do not carry this Treaty into effect, that we shall be plunged in a war; that Britain is a proud and haughty nation; that they will lay their hands upon all our property, &c. This was an address to our fears and not our reason, and were our fears once on the wreck, there is no knowing the result, or where we should land. But, in this instance, we would not be governed by panic, or dread of the power of that haughty nation, as they had been called; but as the Representative of a free and independent nation, he felt himself perfectly at liberty to exercise his reason in the most cool and deliberate manner. Not apprehending any danger, the time has been, and now is, that we are perfectly secure in asserting our equal and reciprocal rights with that nation. We have done it in a state of infancy and inexperience, at a time much more unfavorable, taking each side of the question into view, than the present. And shall we now hesitate, and tamely suffer them to dictate to us? And are we bound to accept the Treaty, lest they should be offended and treat us with contempt for not accepting, as it is said, a more favorable offer than they have given to other nations? Are we not the sole judges; have we not a right to determine for ourselves? And as this is a mere naked stipulation, they can receive no damage, nor, on this early notice, can they charge with deception, or have any right to complain. One thing is certain; so long as Great Britain finds it for her interest to be pacific, she will adopt measures calculated to preserve peace; but when interest dictates the contrary, her invention will not seek a pretext for a different conduct. The history of that nation gives abundant proof of this.

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.