Part 307

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.

True it was, that an alarm which had produced a combination, had lately taken place amongst the merchants of this and some other seaports. What effect it would have, and how successful they would eventually be, in spreading this alarm amongst the people at large, he could not tell; but there were circumstances accompanying their petition, which, in his opinion, much diminished the weight they otherwise might have had. They had, undoubtedly, a right to petition upon every public measure, where they thought themselves interested, and their petitions would deserve equal regard, with those of their fellow-citizens throughout the United States. But on this occasion, in order to create an alarm, in order to induce the people to join them, in order to force the House to pass the laws relative to the Treaty, they had formed a dangerous combination, and affected to cease insuring vessels, purchasing produce, and transacting any business. A gentleman from New York (Mr. WILLIAMS) had been so much alarmed himself, that he had predicted a fall in the price of every kind of produce, and seems, indeed, to have supposed, that the clamors of a few individuals here would either put an end to, or satisfy the wants of those nations which depended on us for supplies of provisions. Yet, it had so happened, and it was a complete proof that the whole was only an alarm, that whilst they were debating, the price of flour, which was of very dull sale two weeks ago, had risen in equal proportion with the supposed fears of the purchasers.

He could not help considering the cry of war, the threats of a dissolution of Government, and the present alarm, as designed for the same purpose, that of making an impression on the fears of this House. It was through the fear of being involved in a war, that the negotiation with Great Britain had originated; under the impression of fear, the Treaty had been negotiated and signed; a fear of the same danger, that of war, had promoted its ratification; and now, every imaginary mischief which could alarm our fears, was conjured up, in order to deprive us of that discretion, which this House thought they had a right to exercise, and in order to force us to carry the Treaty into effect.