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APRIL, 1796.]

Execution of British Treaty.

[H. of R.

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 jea

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.

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 pro-lous of this House, and not of the other branches? duced, both in this House and on the public mind. I lament that improper motives should be imputed to gentlemen ou 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.

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. CommerMr. Chairman, the vote which I shall give on cial regulations were proposed, and other means the question before us, will, in some degree, be from which they might have been forced to abaninfluenced by a Constitutional principle, which I don their unjust and oppressive system. I rememconsider as involved in the decision. On the reso-ber well the arguments then used were convinclution 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 recognising the principle contended for. This I cannot This shows there was no prejudging in the mando. On the admission, or rejection of this princi- ner gentlemen have stated. By this Treaty all ple, I am of opinion, the future course, the future the measures then contemplated by the Legislaoperations of Government materially depend. By ture are arrested; an eternal veto is imposed this it will be decided, whether it is wholly Ex-against our ever carrying the measures then conecutive 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

ing 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.

templated 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

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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.

[APRIL, 1796,

prietors. 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 soBut if the principle he lays down is a just one, lemn contract is made; it would therefore be unhow does it happen that debts due to British sub-wise and impolitic, as it concerns the interest, and jects, 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.

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. 24ly. 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 politi

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!"

The claim against us is admitted; our claim is rejected, in cases where the same principle fairly applies, and where, by gentlemen's own show-cal consequence are suspended on the fulfilment ing, 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 There are some things in which the candid part alien was the only bar. It was effectual-such of those who hear me will not disagree. 1st. Taat has been the decision of the Courts. But by the our Envoy was a wise and honest man; he was a Treaty, being aliens shall not bar the claim of tried patriot, skilled in diplomatic life, and renBritish subjects-thus, many of the extensive dered to his country important services during the claims are restored. In some of the States more late war. The tale of his receiving British gold than half their territory will be revested in pro-was made for children and fools, and need only

APRIL, 1796.]

Execution of British Treaty.

[H. OF R.

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.

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 sub-article is not without its use. It speaks in the mission under so many insults and injuries; such submission would have invited new insults, and our own safety would have made resistance and retaliation necessary.

To the 9th article it has been objected, that the confiscated claims of the ancient proprietors, traitors and exiles, are therefore revived. Were this true, it would be a serious objection to the Treaty. Indeed, the gentleman from Virginia, who first made this objection, [Mr. GILES.] did not contend for this construction, but asked the use of inserting the article unless for this purpose? The

present tense, of those "who now hold lands, that they shall continue to hold them according to the tenure and nature of their respective rights therein" and therefore cannot embrace those who hold no lands, but whose estates were confiscated prior to the Treaty of Peace in 1783. It gives no new estate, enlarges or revives no old title, but confirms to British subjects their titles in the same manner in which they were confirmed by the 5th and 6th articles of the before-mentioned Treaty, with this difference, that they may descend to the heirs of the present holder, notwithstanding the alienage of such heirs. It has provided against escheat on the death of the present holder. "This provision is reciprocal, and it was just and reasonable, considering the relative situation of this country and Great Britain, that such provision should be made. And from the immense emi

Great Britain, Scotland, and Ireland, to this country, on whom descents may be thrown, this is a favorable article to the United States-it is founded on justice and reciprocity.

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. FINDLEY] 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 agration of people of fortune and family, from 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 The second division of the Treaty is of tempomillions of dollars. On a rejection of the Treaty.rary duration, and if it has evils, they cannot be of I wish the gentlemen in the opposition to point long duration, nor of such magnitude as to justify out how the American merchants are to be reim- the hazard of interrupting our present state of bursed for their loss. Nothing can be expected prosperity by a rejection. One novel objection to from new negotiations. It would be a solemn the Treaty, was the impertinent observations of mockery of justice to the claim of those citizens. Lord Grenville to Mr. Pinckney, which led to an Payment out of the Treasury has been talked of, apprehension that the British might interfere with and a resolution to that effect is now on your ta- our internal Government; but not a whisper is ble. This can never be done. It would be with- made against a foreign Minister who built and out a precedent, and Congress has heretofore re-fitted out privateers, and enlisted men from one fused the claim. And how can you discriminate end of the Continent to the other; and when desuch claims from those rising from savage depre- sired by the Executive to desist, appealed from dations on your frontier settlers? The protection the PRESIDENT to the people. If the real objecof 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

tion be, that it is a Treaty with Great Britain, it is true, and therefore unanswerable. Indeed, a great part of my colleague's reasoning [Mr. FINDLEY] went to show, that any connexion with Great Britain was a political evil, as they would thereby acquire an influence in our Councils. Such arguments might be objected to with as much reason, and, indeed, with more force against a bad Treaty, than against a good one.

It has been made an objection to the Treaty, that British vessels shall pay no higher or other duties in our ports than the vessels of other foreign nations. 1st. This regulation is made reciprocal,

H. OF R.]

Execution of British Treaty.

[APRIL, 1796.

commanders of privateers, directed them to make
prize of all provision ships. Indeed, this article
is peculiarly favorable to us in a state of neutral-
ity. American goods going to places blockaded
by France or Holland, are contraband; not so, if
going to places blockaded by Great Britain.
It has been objected to the 21st article, that
American citizens are prohibited from entering
into foreign service against Great Britain, and that
commanders of privateers are punishable as pi-
rates. 1st. It is to be observed, that the restric-
tion is confined to a time of war; during a state
of peace, the restriction does not operate. And
with respect to the commanders of privateers in-
terfering in the war, being made punishable as
pirates, the same article, in the same words, is in-
troduced in that much favored Treaty with Spain.
This article is also reciprocal, and we have at
least as much to fear from the naval skill and mi-
litary knowledge of British subjects, employed
against this country, in case of war, as they
have from the skill and knowledge of Ameri-
can citizens. This article appears to me to con-
tain a wise regulation. It tends to preserve the
peace of this country; there is always some dan-
ger in playing with edged tools.

and our vessels pay no other or higher duties ingress, in 1777, in the form of their commission to British ports than the vessels of other foreign nations. 2dly. This is a standing regulation in all Commercial Treaties. In our Treaty with France, the Netherlands, Sweden, Prussia, &c., the same thing is covenanted, only in stronger terms; the words are, "no higher or other duties than those of the most favored nations." In our first Treaty with France, we guarantied to that nation all their West India possessions; we are now released from this guarantee. In our late Treaty with Spain, for which appropriations have been voted, without a dissenting voice, we have guarantied to them peace with several powerful tribes of Indians. It may be said, that this guarantee is reciprocal. It is so, without much reciprocity, as all those Indian tribes, or chiefly all, reside within our boundary. It is said, that Great Britain, by this article, has reserved the right of equalizing the tonnage of American vessels in British ports to that of British vessels in American ports. This right she had prior to the Treaty, and will have, if the Treaty is rejected. Two objections have been made to the 18th article. 1st. That provisions are made contraband in cases not warranted by the Law of Nations; and secondly, that the list of contraband articles is extended beyond that contained in any other Treaty. The first objection is totally unfounded. The article declares that provisions and other articles, not generally contraband, becoming so," according to the existing Laws of Nations," shall not be confiscated, but the owners of such articles shall be fully paid, with a mercantile profit and demurrage. It would, therefore, be a violation of this Treaty, and a good cause of war, should Great Britain declare any article contraband which is not so by the Laws of Nations, though such declaration was attended with an offer of payment. This article has given a privilege, but has restrained no right. If the fleets and armies of France should besiege a British island, and an American merchantman, in attempting to supply the besiegers with provisions, should be captured by a British cruiser, it would not be a cause of confiscation. So far from declaring provisions contraband, when they are not so, the article provides that they shall be paid for when they are clearly contraband. As to the It has been objected that neutral vessels do not second objection, that the list of contraband arti- make free goods. This is a principle of the Law cles are extended beyond that contained in any of Nations, that Great Britain has never given up other Treaty it is to be observed, that war abridges to any nation, and perhaps never will, particularly the rights of commerce, as respects neutral na-in time of war; the principle will remain the same tions. It is therefore of importance to settle by Treaty what shall be contraband. Naval stores are the articles to which this objection applies. Vattel, Grotius, Bynkershoek, and all the most approved writers on the Laws of Nations, have declared naval stores contraband. In a Treaty made between Great Britain and Denmark, as late as the year 1780, not only the same words are used respecting naval stores, but horses and soldiers are added; and in a Treaty with Sweden, naval stores, money, horses, and provisions, are made contraband. In almost all our other Commercial Treaties, horses are declared contraband, in this they are free. It is observable, that Con

It has been said that the British may defeat the advantages promised in the East India commerce; having agents in the country, they can buy goods cheaper, and can supply the United States on better terms, than the American merchants. Though my learned colleague from Pennsylvania, [Mr. SwANWICK,] is well informed on all mercantile subjects, he certainly has not been correct and candid in this objection. It is a standing chartered regulation of the East India Company, that their goods must be landed in London; there is, then, a double voyage, with all the incidental expense, and foreign duties and tonnage, which will give the American merchants a decided advantage. But, again: Congress may, by law, altogether prohibit the importation of Asiatic goods, in any but American bottoms, without a violation of the Treaty. I consider the East India trade a source of great wealth, as we shall probably supply many of the markets with Asiatic goods.

if the Treaty is rejected.

Objections have also been made to the insufficiency of the sum in which commanders of privateers are to give sureties, to wit: £1,500 and £3,000 sterling.

This, I believe to be the usual surn. In our Treaty with Sweden no sum is mentioned; and in our Treaty with Holland no security at all is given, but the Captain is to forfeit his commission for misbehavior. I have thus cursorily noticed most of the objections made to the Treaty, and offered some of those reasons which have induced me to believe it for the interest and honor of the country to vote for the resolution on your table.

APRIL, 1796.J

Execution of British Treaty.

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.

[H. OF R.

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 vis? 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.

Independent of the Treaty, it has been shown, that their peculiar circumstances have produced all the commercial advantages to the United States, and more than is secured to us by this instrument. The existing causes will produce and continue the effect, without sacrifice or equivalent. I cannot but observe, that all the gentlemen in favor of the Treaty have requested our impartial and candid attention thus, presupposing that they assume to themselves what they urge us to possess. They would do well to examine what part of their conduct, compared with ours, gives them a preference.

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 inform- A gentleman from Connecticut, [Mr. HILLation, previous to his being called upon to carry HOUSE,] who went diffusively into the subject, it into effect. But, unfortunately for him, no fur- said he would be impartial, and would take both ther information was to he obtained. The useful sides into view. His language being in the spirit papers, an innocent and humble request, was not and tone of all the others, he would observe upon granted. He was not possessed of any other in- what he had said. He set out by saying, that this formation than could be drawn from the instru- Treaty opens to them a new world; that it will ment, from the writers on that subject, and the give a spur to enterprise, and command all the arguments that had been advanced by the gentle-fur trade. The gentleman from New York, [Mr. men 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 a Representative of a free and independent nation, he felt himself perfectly at liberty to exercise his reason, in the most cool and eliberate 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 4th CON.-37

WILLIAMS,] not behind him in calculation, says, the whole trade will centre at New York; that it will amazingly facilitate the progress of that city; that, at present, there is an annual increase of population from eight hundred to one thousand houses; and that, in a century, it will be equal to London; and then, with seeming surprise, asks, shall we now arrest its progress by rejecting the Treaty ?

Those two gentlemen, in their impartial rhapsody, have fancied this Treaty has given them the world in a string; that it contains in itself, and secures to them all possible advantage; and that the rejection would be attended with every possible evil. But all this remains to be proved. Could he view it in this manner, he would be guilty of injustice not to promote it; or should it realize one-tenth of those advantages to Connecticut or New York, he would make a large sacrifice in their favor. But the reasons produced to prove this, or even make it probable, were foreign, and did not go to convince, or at least had no more weight upon his judgment than to prove that this Treaty could have a partial and temporary operation in favor of a few fur-traders; but failed to

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