University of Virginia Library

TO—[106] .

Your favor of the 3d instant did not come to hand
till a few days ago, having been probably retarded
by the difficulty the post met with in passing the
water-courses which have been much swelled of late
by excessive rains. It gives me much pleasure to
learn that your health has been so much improved;

as well as that you are taking advantage of it to cooperate
in elucidating the great subject before the
public. We see here few of the publications relating
to it, except those which issue from meetings of the
people, & which are of course republished everywhere.
The only Philada paper that comes to me
is the Aurora wch besides frequent miscarriages, is
not I find the vehicle used by the regular champions
on either side. I have occasionally seen Dunlap's,
& in that some specimens of the Display of the
"Features &c." I wish much to see the whole of it.
Your obliging promise to forward it along with any
other things of the kind, will have a good opportunity
by the return of Mr. Wilson Nicholas who is on
his way to Phila & will call on me on his way home.
I requested the favour of him to apprize you of the
opportunity. I am glad to find that the author of
the "Features &c." meditates a similar operation on
"The Defence of the Treaty by Camillus"[107] who if I
mistake not will be betrayed by his anglomany into
arguments as vicious & as vulnerable as the Treaty
itself. The Resolutions of the Chamber of Commerce
in N. Y. justify this anticipation. What can be
more absurd than to talk of the advantage of securing
the privileges of sending raw materials to a
manufacturing nation, and of buying merchandizes
which are hawked over the four quarters of the globe
for customers. To say that we must take the
Treaty or be punished with hostilities is something
still worse. By the way, it is curious to compare
the language of the author & abettors of the Treaty,
with that held on the subject of our commercial importance,
when the Constitution was depending.
Jay himself could then view its adoption as the only
thing necessary to extort the Posts, &c., and open
the W. India Ports. (See his address to the people
of N. Y. in the Museum.) The Federalist (N°. XI)
will exhibit a still more striking contrast on this
point, in another quarter.—You intimate a wish that
I wd. suggest any ideas in relation to the Treaty that
may occur to my reflections.[108] In my present sequestered
situation I am too little possessed of the
particular turns of the controversy to be able to
adapt remarks to them. In general I think it of
importance to avoid laying too much stress on
minute or doubtful objections which may give an
occasion to the other party to divert the public
attention from the palpable and decisive ones, and
to involve the question in uncertainty, if not to
claim an apparent victory. The characteristics of
the Treaty which I have wished to see more fully
laid open to the public view are 1. its ruinous tendency
with respect to the carrying trade. The increase
of our shipping under the new Govt has, in
most legislative discussions, been chiefly ascribed to
the advantage given to American vessels by the difference
of 10 Per Ct on the impost in their favor.
This, in the valuable cargoes from G. B. has been
sufficient to check the preference of British Merchts
for British bottoms; and it has been not deemed
safe hitherto by G. B. to force on a contest with us,
in this particular, by any countervailing regulations.

In consequence of the Treaty, she will no doubt
establish such regulations; and thereby leave the
British capital free to prefer British vessels. This
will not fail to banish our tonnage from the trade
with that Country. And there seems to have been
no disposition in the Negociator to do better for our
navigation in the W. India trade; especially if the
exclusion of our vessels from the re-exportation of
the enumerated articles Sugar Coffee &c be taken
into the account. The nature of our exports &
imports compared with that of the British, is a
sufficient, but at the same time our only defence agst.
the superiority of her capital. The advantage they
give us in fostering our navigation ought never to
have been abandoned. If this view of the subject
be just and were presented to the public with mercantile
skill, it could not fail to make a deep impression
on England. In fact the whole Treaty
appears to me to assassinate the interest of that part
of the Union.—2 the insidious hostility of the Treaty
to France in general; but particularly the operation
of the 15th. article, which as far as I have seen has
been but faintly touched on, tho it be in fact, pregnant
with more mischief than any of them. According
to all our other Treaties as well as those of
all other nations, the footing of the most favored
nations is so qualified, that those entitled to it, must
pay the price of any particular privilege that may be
granted in a new Treaty. The Treaty of Jay makes
every new privilege result to G. B., without her paying
any price at all. Should France, Spain, Portugal

or any other nation offer the most precious
privileges in their trade, as the price of some particular
favour in ours, no bargain could be made, unless
they would agree, not only to let the same favor be
extended to G. B., but extended gratuitously. They
could not purchase for themselves, without at the
same time purchasing for their rival. In this point
of view, the 15th. art. may be considered as a direct
bar to our Treating with other nations, and particularly
with The French Republic. Much has been
said of a suspected backwardness to improve our
coml. arrangements with France; and a predilection
for arrangements with G. B., who had less to give,
as well as less inclination to give what she had. It
was hardly imagined that we were so soon to grant
every thing to G. B. for nothing in return; and to
make it a part of this bad bargain with her, that we
should not be able to make a good one with any
other nation. 3. the spirit in which every point of
the law of nations is regulated. It is the interest of
the U. S. to enlarge the rights of Neutral nations.
It is the general interest of humanity that this shd.
be done. In all our other Treaties this policy has
prevailed. The same policy has pervaded most of
the modern Treaties of other nations. G. B. herself
has been forced into it in several of her Treaties. In
the Treaty of Jay, every principle of liberality, every
consideration of interest has been sacrificed to the
arbitrary maxims which govern the policy of G. B.
Nay a new principle has been created, in the face of
former complaints of our Executive. As well as
against the fundamental rights of nations & duties
of humanity, for the purpose of aiding the horrible
scheme of starving a whole people out of their
liberties.

[109] I Even waiving the merits of the respective complaints
& pretensions of the two parties as to the
inexecution of the Treaty of peace, the waiver implies
that the two parties were to be viewed either
as equally culpable or equally blameless; and that
the execution of the Treaty of peace equally by both
ought now to be provided for. Yet, whilst the U. S.
are to comply in the most ample manner with the
article unfulfilled by them, and to make compensation
for whatever losses may have accrued from the
delay; G. B. is released altogether from one of ye
articles unfulfilled by her and is not to make the
smallest compensation for the damages which have
accrued from her delay to execute the other.[110]

The inequality of these terms is still further increased
by concessions on the part of the U. S.
which, besides adding to the Constitutional difficulties
unnecessarily scattered thro' the Treaty, may
in a great measure defeat the good consequences of
a surrender of the Western posts.[111]

The British Settlers and Traders, within an undefined

Tract of Country, are allowed to retain both
their lands and their allegiance at the same time;
and consequently to keep up a foreign and unfriendly
influence over the Indians within the limits of the
U. States.

The Indians within those limits are encouraged to
continue their trade with the British by the permission
to bring their goods duty free from Canada;
where the goods being charged with no such impost
as is payable on the goods of the U. S., will be offered
for sale with that tempting preference; a regulation
but too likely also to cloak the frauds of smuggling
traders in a country favorable to them. The reciprocity
in this case is ostensible only and fallacious.

Under another ostensible & fallacious reciprocity
the advantage secured to the U. S. in the fur trade
by their possession of the carrying places is abandoned
to the superiority of British Capital, and the
inferiority of the Canada duties on imports.

A part only of the ports harbors & bays of a single
British Province is made free to the U. S., in consideration
of a freedom of all the ports harbors and
bays of the whole U. S. The goods and merchandize
of the U. S., not entirely prohibited by Canada (but
which in fact are always entirely prohibited, when
partial & temporary admissions are not dictated by
necessity,) may be carried there, in consideration, of
a free admission of all goods and merchandize from
Canada not entirely prohibited by the U. S. (where,
in fact there never is this entire prohibition.) A
like stipulation, liable to the like observations, is

extended to the exports of the U.S. and the Province
of Canada. These are further instances of a nominal
& delusive reciprocity.

In the case of the Mississippi there is not even an
ostensible or nominal reciprocity. The ports and
places on its Eastern side, are to be equally free to
both the parties; altho' the Treaty itself supposes
that the course of the Northern Boundary of the U.
S. will throw the British beyond the very source of
that river. This item of the Treaty is the more to
be noticed, as a repetition and extension of the stipulated
privileges of G. B. on the Mississippi, will probably
be construed into a partiality in the U. S. to the
interests and views of that Nation on the American
Continent, not likely to conciliate those from whom
an amicable adjustment of the navigation of the
Mississippi is to be expected; and were no doubt intended
by G. B. as a snare to our good understanding
with the nations most jealous of her encroachments
& her aggrandizement.

II Without remarking on the explicit provision
for redressing past spoliations & vexations, no sufficient
precautions are taken against them in future.
On the contrary,

By omitting to provide for the respect due to sea
letters passports and certificates and for other customary
safeguards to neutral vessels, "a general
search-warrant, (in the strong but just language of
our fellow Citizens of Charlestown) is granted against
the American navigation." Examples of such provisions
were to be found in our other Treaties, as well

as in the Treaties of other nations. And it is matter
of just surprise that they should have no place in
a Treaty with G. B. whose conduct on the seas so
particularly suggested and enforced every guard to
our rights that could reasonably be insisted on.

By omitting to provide against the arbitrary
seizure & impressment of American seamen, that
valuable class of Citizens remains exposed to all the
outrages, and our commerce to all the interruptions
hitherto suffered from that cause.

By expressly admitting that provisions are to be
held contraband in cases other than when bound to
an invested place, and impliedly admitting that such
cases exist at present; not only a retrospective sanction
may be given to proceedings agst which indemnification
is claimed; but an apparent license is granted
to fresh and more rapacious depredations on our
lawful commerce. And facts seem to shew that
such is to be the fruit of the impolitic concession. It
is conceived that the pretext set up by G. B., of besieging
and starving whole Nations, and the doctrine
grounded thereon, of a right to intercept the customary
trade of Neutral nations, in articles not contraband,
ought never to have been admitted into a
Treaty of the U. S.; because 1. it is a general outrage
on humanity, and an attack on the useful intercourse
of Nations. 2. it appears that the doctrine
was denied by the Executive in the discussions with
Mr. Hammond, the British Minister, and demands of
compensation founded on that denial are now depending.
3 As provisions constitute not less than

of our exports, and as Great Britain is
nearly half her time at war, an admission of the doctrine
sacrifices a correspondent proportion of the
value of our commerce. 4. After a public denial of
the doctrine, to admit it, in the midst of the present
war by a formal Treaty, would have but too much
of the effect as well as the appearance of voluntarily
concurring in the scheme of distressing a nation in
friendship with this Country, and whose relations to
it, as well as the struggles for freedom in which they
are engaged, give them a title to every good office
not strictly forbidden by the duties of neutrality.
5. It is no plea for the measure to hold it up as an
alternative to the disgrace of being involuntarily
treated in the same manner, without a faculty to
redress ourselves; the disgrace of being plundered
with impunity agst our consent being under no circumstances,
greater than the disgrace of consenting
to be plundered with impunity; more especially as
the calamity in the former case might not happen in
another war, whereas in the latter case it is bound
upon us for as much of twelve years, as there may
be of war within that period.

By annexing to the implements of war, enumerated
as contraband, the articles of ship-timber, tar or
rosin, copper in sheets, sails, hemp & Cordage, our
neutral rights and national interests are still further
narrowed. These articles were excluded by the U.
S. from the contraband list, when they were themselves
in a state of war.[112] Their other Treaties expressly

declare them not to be contraband. British
Treaties have done the same. Nor, as is believed,
do the Treaties of any nation in Europe, producing
these articles for exportation, allow them to be subjects
of confiscation. The stipulation was the less
to be admitted as the reciprocity assumed by it is a
mere cover for the violation of that principle, most of
the articles in question, being among the exports
of the U. S. whilst all of them are among the imports
of G. B.

By expressly stipulating with G. B. against the
freedom of enemy's property in neutral bottoms, the
progress towards a compleat & formal establishment
of a principle in the law of nations so favorable to
the general interest and security of Commerce, receives
all the check the U. S. could give to it. Reason
& experience have long taught the propriety of considering
free ships, as giving freedom to their cargoes.
The several great maritime nations of Europe have
not only established it at different times by their
Treaties with each other, but on a solemn occasion
(the armed neutrality) jointly declared it to be the
law of Nations by a specific compact, of which the
U. S. entered their entire approbation.[113] G. B. alone
dissented: But she herself, in a variety of prior
Treaties, & in a Treaty with France since, [1786],
has acceded to the principle. Under these circumstances,
the U. S., of all nations, ought to be the last
to unite in a retrograde effort on this subject, as
being more than any other interested in extending

& establishing the commercial rights of neutral Nations.
Their situation particularly fits them to be
carriers for the great nations of Europe during their
wars. And both their situation & the genius of
their Government & people promise them a greater
share of peace and neutrality than can be expected
by any other nation. The relation of the U. S. by
Treaty on this point to the enemies of G. B. was another
reason for avoiding the stipulation. Whilst
British goods in American vessels are protected agst.
French & Dutch capture, it was eno' to leave French
& Dutch goods in American Vessels to the ordinary
course of Judicial determinations, without a voluntary,
a positive, and an invidious provision for condemning
them. It has not been overlooked that a
clause in the Treaty proposes to renew, at some
future period, the discussion of the principle it now
settles; but the question is then to be not only in
what, but whether in any cases, neutral vessels shall
protect enemy's property; and it is to be discussed
at the same time, not whether in any, but in what
cases provisions & other articles, not bound to invested
places, may be treated as contraband. So
that when the principle is in favor of the U. S.,
the principle itself is to be the subject of discussion;
when the principle is in favor of G. B.,
the application of it only is to be the subject of
discussion.

III Whenever the law of nations comes into question
the result of ye. Treaty accommodates G. B. in
relation to one or both of the Republics at war with

her, as well as in diminution of the rights and interests
of the U. S.

Thus American vessels, bound to G. B. are protected
by sea papers agst. French or Dutch searches;
bound to France or Holland, are left exposed to
British searches, without regard to such papers.

British property in American Vessels is not subject
to French or Dutch confiscation: French or
Dutch property in American vessels is subjected to
British confiscation.

American provisions in American vessels, bound
to the Enemies of G. B., are left by Treaty to the
seizure and use of G. B.; provisions whether American
or not, in American vessels, cannot be touched
by the Enemies of G. B.

Timber for ship-building, tar or rosin, copper in
sheets, sails, hemp & cordage, bound to the enemies
of G. B., for the equipment of vessels of trade only,
are contraband; bound to G. B. for the equipment
of vessels of war, are not contraband.

American citizens entering, as volunteers the service
of F. or Holland agst. G. B. are to be punished;
American volunteers joining the arms of G. B. agst
F. or H. are not punishable.

British Ships of war and privateers, with their
prizes made on Citizens of Holland, may freely enter
& depart the ports of the U. S. Dutch Ships of war
and privateers with their prizes made on subjects of
G. B. are to receive no shelter or refuge in the ports
of the U.S. And this advantage in war is given to
G. B., not by a Treaty prior & having no relation,

to an existing war; but by a Treaty made in the
midst of war, and prohibiting a like article of Treaty
with Holland for equalizing the advantage.

The article prohibiting confiscations & sequestrations,
is unequal between the U. S. & G. B. American
Citizens have little if any interest in public or
bank Stock or in private debts within G. Britain.
British subjects have a great interest in all within the
U. S. Vessels & merchandize belonging to individuals,
governed by the same "confidence in each other &
in regard to their respective Govts for their municipal
laws, and for the laws of nations allowed to be part
thereof as consecrates private debts," are not exempted
from such proceedings. So that where much
would be in the power of the U. S. and little in the
power of G. B., the power is interdicted. Where more
is in the power of G. B. than of the U. S., the power is
left unconfined. Another remark is applicable. When
the modern usage of nations, is in favor of G. B., the
modern usage is the rule of the Treaty. When the
modern usage was in favor of the U. S., the modern
usage was rejected as a rule for the Treaty.

IV The footing on which the Treaty places the
subject of Commerce is liable to insuperable objections.

1.

• The nature of our exports & imports, compared
  with those of other Countries, and particularly of
  G. B., has been thought by the Legislature of the
  U. S. to justify certain differences in the tonnage &
  other duties in favor of American bottoms; and the
  advantage possessed by G. B. in her superior capital
  

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  was thought at the same time to require such countervailing
  encouragements. Experience has shewn the
  solidity of both these considerations. The American
  navigation has, in a degree been protected against
  the advantage on the side of British Capital, and has
  increased in proportion. Whilst the nature of our
  exports, being generally necessaries or raw materials,
  and of our imports consisting mostly of British manufactures,
  has restrained G. B. from any attempt to
  counteract the protecting duties afforded to our
  navigation. Should the Treaty go into effect, this
  protection is relinquished; Congress are prohibited
  from substituting any other; and the British Capital,
  having no longer the present inducement to make
  use of American Bottoms may be expected, thro'
  whatever hands operating, to give the preference to
  British Bottoms.

2.

• The provisions of the Treaty which relate to the
  W. Indies, where the nature of our exports and imports
  gives a commanding energy to our just pretensions,
  instead of alleviating the general evil, are a
  detail of peculiar humiliations and sacrifices. Nor
  is a remedy, by any means to be found in the proposed
  suspension of that part of the Treaty. On
  the contrary;

  If Great Britain should accede to the proposition;
  and the Treaty be finally established without the
  twelfth article, she will, in that event, be able to
  exclude American bottoms altogether from that
  channel of intercourse, and to regulate the whole
  trade with the W. Indies in the manner hitherto
  

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  complained of; whilst by another article of the Treaty,
  the U. S. are compleatly dispossessed of the right &
  the means hitherto enjoyed of counteracting the
  monopoly, unless they submit to a universal infraction
  of their trade, not excepting with nations whose
  regulations may be reciprocal and satisfactory.

3.

• The treaty, not content with these injuries to
  the U. S. in their commerce with G. B., provides in
  the XV article against the improvement or preservation
  of their commerce with other nations, by any
  beneficial Treaties that may be attainable. The
  general rule of the U. S. in their Treaties, founded
  on ye. example of other nations has been, that where
  a nation is to have the privileges that may be granted
  to the most favored nations, it should be admitted
  gratuitously to such privileges only as are gratuitously
  granted; but should pay for privileges not
  gratuitously granted the compensations paid for them
  by others. This prudent & equitable qualification of
  the footing of the most favored nation was particularly
  requisite in a Treaty with G. B., whose commercial
  system, being matured & settled, is not
  likely to be materially varied by grants of new
  privileges that might result to the U. S. It was particularly
  requisite at the present juncture also when
  an advantageous revision of the Treaty with France
  is said to be favored by that Republic; when a
  Treaty with Spain is actually in negociation, and
  Treaties with other nations whose commerce is important
  to the U. S. cannot be out of contemplation.
  The proposed Treaty, nevertheless, puts G. B. in all
  

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  respects, gratuitously, on the footing of the most
  favored nation; even as to future privileges for
  which the most valuable considerations may be
  given. So that it is not only out of the power of the
  U. S. to grant any peculiar privilege to any other
  nation, as an equivalent for peculiar advantages in
  commerce or navigation to be granted to the U. S.;
  but every nation, desiring to treat on this subject
  with the U. S. is reduced to the alternative either of
  declining the treaty altogether, or of including G. B.,
  gratuitously, in all the privileges it purchases for itself.
  An article of this import is the greatest obstacle,
  next to an absolute prohibition, that could
  have been thrown in the way of other Treaties; and
  that it was insidiously meant by G. B. to be such, is
  rendered the less doubtful, by the other kindred
  features visible in the Treaty.

  It can be no apology for these commercial disadvantages,
  that better terms could not be obtained at
  the crisis when the Treaty was settled. If proper
  terms could not be obtained at that time, commercial
  stipulations, which were no wise essentially connected
  with the objects of the Envoyship ought to
  have waited for a more favorable season. Nor is a
  better apology to be drawn from our other Treaties.
  The chief of These, were the auxiliaries or the guaranties
  of our independence, and would have been an
  equivalent for greater commercial concessions than
  were insisted on. (Under other circumstances, there
  is no ground to suppose, that the same treaties, tho'
  more favorable in several material articles than the
  

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  Treaty in question, would have been embraced by
  the U. S.[114] )

  V A Treaty thus unequal in its conditions, thus
  derogatory to our national rights, thus insidious in
  some of its objects, and thus alarming in its operation
  to the dearest interests of the U. S. in their
  commerce and navigation, is in its present form unworthy
  the voluntary acceptance of an Independent
  people, and is not dictated to them by the circumstances
  in which providence has kindly placed them.
  It is sincerely believed, that such a Treaty would not
  have been listened to at any former period, when G.
  B. was most at her ease, and the U. S. without the
  respectability they now enjoy. To pretend that
  however injurious the Treaty may be it ought to be
  submitted to in order to avoid the hostile resentment
  of G. B. which wd. evidently be as impolitic as it
  would be unjust on her part, is an artifice too contemptible
  to answer its purpose. It will not easily
  be supposed, that a refusal to part with our rights
  without an equivalent will be made the pretext of a
  war on us; much less that such a pretext will be
  founded on our refusal to mingle a sacrifice of our
  commerce & navigation with an adjustment of political
  differences. Nor is any evidence to be found,
  either in History or Human nature, that nations, are
  to be bribed out of a spirit of encroacht & aggressions
  by humiliations which nourish their pride, or by
  concessions which extend their resources & power.

  To do justice to wall nations; to seek it from them
  

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  by peaceable means in preference to war; and to
  confide in this policy for avoiding that extremity; or
  securing the blessing of Heaven, when forced upon
  us, is the only course of which the United States can
  never have reason to repent.