University of Virginia Library

THE JAY TREATY. SPEECH IN THE 4TH. CONGRESS,
APRIL 6.[118]

Mr. Madison rose, and spoke as follows: When the Message
was first proposed to be committed, the proposition had been
treated by some gentlemen not only with levity but with
ridicule. He persuaded himself that the subject would appear
in a very different light to the Committee; and he hoped
that it would be discussed on both sides without either levity,
intemperance, or illiberality.

If there were any question which could make a serious appeal
to the dispassionate judgment, it must be one which
respected the meaning of the Constitution; and if any Constitutional
question could make the appeal with peculiar

solemnity, it must be in a case like the present, where two
of the constituted authorities interpreted differently the extent
of their respective powers.

It was a consolation, however, of which every member
would be sensible, to reflect on the happy difference of our
situation, on such occurrences, from that of Governments in
which the constituent members possessed independent and
hereditary prerogatives. In such Governments, the parties
having a personal interest in their public stations, and not
being amenable to the national will, disputes concerning the

limits of their respective authorities might be productive of
the most fatal consequences. With us, on the contrary,
although disputes of that kind are always to be regretted,
there were three most precious resources against the evil
tendency of them. In the first place, the responsibility which
every department feels to the public will, under the forms of
the Constitution, may be expected to prevent the excesses
incident to conflicts between rival and irresponsible authorities.
In the next place, if the difference cannot be adjusted
by friendly conference and mutual concession, the sense of
the constituent body, brought into the Government through
the ordinary elective channels, may supply a remedy. And
if this resource should fail, there remains, in the third and
last place, that provident article in the Constitution itself,
by which an avenue is always open to the sovereignty of the
people, for explanations or amendments, as they might be
found indispensable.

If, in the present instance, it was to be particularly regretted
that the existing difference of opinion had arisen,
every motive to the regret was a motive to calmness, to
candor, and the most respectful delicacy towards the other
constituted authority. On the other hand, the duty which
the House of Representatives must feel to themselves and to
their constituents required that they should examine the
subject with accuracy, as well as with candor, and decide on
it with firmness, as well as with moderation.

In this temper, he should proceed to make some observations
on the Message before the Committee, and on the reasons
contained in it.

The Message related to two points: First. The application
made for the papers. Secondly. The Constitutional rights of
Congress, and of the House of Representatives, on the subject
of Treaties.

On the first point, he observed, that the right of the House
to apply for any information they might want, had been admitted
by a number in the minority, who had opposed the
exercise of the right in this particular case. He thought it
clear that the House must have a right, in all cases, to ask for
information which might assist their deliberations on the
subjects submitted to them by the Constitution; being responsible,
nevertheless, for the propriety of the measure. He
was as ready to admit that the Executive had a right, under
a due responsibility, also, to withhold information, when of a
nature that did not permit a disclosure of it at the time.
And if the refusal of the President had been founded simply
on a representation, that the state of the business within his
department, and the contents of the papers asked for, required
it, although he might have regretted the refusal, he

should have been little disposed to criticise it. But the
Message had contested what appeared to him a clear and important
right of the House; and stated reasons for refusing
the papers, which, with all the respect he could feel for the
Executive, he could not regard as satisfactory or proper.

One of the reasons was, that it did not occur to the Executive
that the papers could be relative to any purpose under
the cognizance, and in the contemplation of the House. The
other was, that the purpose for which they were wanted was
not expressed in the resolution of the House.

With respect to the first, it implied that the Executive was
not only to judge of the proper objects and functions of the
Executive department, but, also, of the objects and functions
of the House. He was not only to decide how far the Executive
trust would permit a disclosure of information, but how
far the Legislative trust could derive advantage from it. It
belonged, he said, to each department to judge for itself. If
the Executive conceived that, in relation to his own department,
papers could not be safely communicated, he might,
on that ground, refuse them, because he was the competent
though a responsible judge within his own department. If
the papers could be communicated without injury to the
objects of his department, he ought not to refuse them as
irrelative to the objects of the House of Representatives; because
the House was, in such cases, the only proper judge of
its own objects.

The other reason of refusal was, that the use which the
House meant to make of the papers was not expressed in the
resolution.

As far as he could recollect, no precedent could be found in
the records of the House, or elsewhere, in which the particular
object in calling for information was expressed in the call.
It was not only contrary to right to require this, but it would
often be improper in the House to express the object. In the
particular case of an impeachment referred to in the Message,
it might be evidently improper to state that to be the object

of information which might possibly lead to it, because it
would involve the preposterous idea of first determining to
impeach, and then inquiring whether an impeachment ought
to take place. Even the holding out an impeachment as a
contemplated or contingent result of the information called
for, might be extremely disagreeable in practice, as it might
inflict a temporary pain on an individual, whom an investigation
of facts might prove to be innocent and perhaps
meritorious.

From this view of the subject he could not forbear wishing
that, if the papers were to be refused, other reasons had been
assigned for it. He thought the resolutions offered by the
gentleman from North Carolina, one of which related to this
subject, ought to stand on the Journal along with the Message
which had been entered there. Both the resolutions were
penned with moderation and propriety. They went no
farther than to assert the rights of the House; they courted
no reply; and it ought not to be supposed they could give
any offence.

The second object to which the measure related, was
the Constitutional power of the House on the subject of
Treaties.

Here, again, he hoped it may be allowable to wish that it
had not been deemed necessary to take up, in so solemn a
manner, a great Constitutional question, which was not contained
in the resolution presented by the House, which had
been incidental only to the discussion of that resolution, and
which could only have been brought into view through the
unauthentic medium of the newspapers. This, however,
would well account for the misconception which had taken
place in the doctrine maintained by the majority in the late
question. It had been understood by the Executive, that
the House asserted its assent to be necessary to the validity
of Treaties. This was not the doctrine maintained by them.
It was, he believed, fairly laid down in the resolution proposed,
which limited the power of the House over Treaties,

to cases where Treaties embraced Legislative subjects, submitted
by the Constitution to the power of the House.

Mr. M. did not mean to go into the general merits of this
question, as discussed when the former resolution was before
the Committee. The Message did not request it, having
drawn none of its reasoning from the text of the Constitution.
It had merely affirmed that the power of making Treaties is
exclusively vested by the Constitution in the President, by
and with the advice and consent of the Senate. Nothing more
was necessary on this point than to observe, that the Constitution
had as expressly and exclusively vested in Congress the
power of making laws, as it had vested in the President and
Senate the power of making Treaties.

He proceeded to review the several topics on which the
Message relied. First. The intention of the body which
framed the Constitution. Secondly. The opinions of the
State Conventions who adopted it. Thirdly. The peculiar
rights and interests of the smaller States. Fourthly. The
manner in which the Constitution had been understood by
the Executive and the foreign nations, with which Treaties
had been formed. Fifthly. The acquiescence and acts of
the House on former occasions.

1.

• When the members on the floor, who were members of
  the General Convention, particularly a member from Georgia
  and himself, were called on in a former debate for the sense
  of that body on the Constitutional question, it was a matter
  of some surprise, which was much increased by the peculiar
  stress laid on the information expected. He acknowledged
  his surprise, also, at seeing the Message of the Executive appealing
  to the same proceedings in the General Convention,
  as a clue to the meaning of the Constitution.

  It had been his purpose, during the late debate, to make
  some observations on what had fallen from the gentlemen
  from Connecticut and Maryland, if the sudden termination of
  the debate had not cut him off from the opportunity. He
  should have reminded them that this was the ninth year since
  

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  the convention executed their trust, and that he had not a
  single note in this place to assist his memory. He should
  have remarked, that neither himself nor the other members
  who had belonged to the Federal Convention, could be under
  any particular obligation to rise in answer to a few gentlemen,
  with information, not merely of their own ideas at that period,
  but of the intention of the whole body; many members of
  which, too, had probably never entered into the discussions of
  the subject. He might have further remarked, that there
  would not be much delicacy in the undertaking, as it appeared
  that a sense had been put on the Constitution by some who
  were members of the Convention, different from that which
  must have been entertained by others, who had concurred in
  ratifying the Treaty.

  After taking notice of the doctrine of Judge Wilson, who
  was a member of the Federal Convention, as quoted by Mr.
  Gallatin from the Pennsylvania debates, he proceeded to
  mention that three gentlemen, who had been members of the
  Convention, were parties to the proceedings in Charleston,
  South Carolina, which, among other objections to the Treaty,
  represented it as violating the Constitution. That the very
  respectable citizen who presided at the meeting in Wilmington,
  whose resolutions made a similar complaint, had also
  been a distinguished member of the body that formed the
  Constitution.

  It would have been proper for him, also, to have recollected
  what had, on a former occasion, happened to himself during
  a debate in the House of Representatives. When the bill for
  establishing a National Bank was under consideration; he had
  opposed it, as not warranted by the Constitution, and incidentally
  remarked, that his impression might be stronger,
  as he remembered that, in the Convention, a motion was
  made and negatived, for giving Congress a power to grant
  charters of incorporation. This slight reference to the Convention,
  he said, was animadverted on by several, in the
  course of the debate, and particularly by a gentleman from
  

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  Massachusetts, who had himself been a member of the Convention,
  and whose remarks were not unworthy the attention
  of the Committee. Here Mr. M. read a paragraph from Mr.
  Gerry's speech, from the Gazette of the United States, page
  814, protesting, in strong terms, against arguments drawn
  from that source.

  Mr. M. said, he did not believe a single instance could be
  cited in which the sense of the Convention had been required
  or admitted as material in any Constitutional question. In
  the case of the Bank, the Committee had seen how a glance
  at that authority had been treated in this House. When the
  question on the suability of the States was depending in the
  Supreme Court, he asked, whether it had ever been understood
  that the members of the Bench, who had been members
  of the Convention, were called on for the meaning of the
  Convention on that very important point, although no Constitutional
  question would be presumed more susceptible of
  elucidation from that source.

  He then adverted to that part of the Message which contained
  an extract from the Journal of the Convention, showing
  that a proposition "that no Treaty should be binding on
  the United States, which was not ratified by law," was explicitly
  rejected. He allowed this to be much more precise
  than any evidence drawn from the debates in the Convention,
  or resting on the memory of individuals. But, admitting the
  case to be as stated, of which he had no doubt, although he
  had no recollection of it, and admitting the record of the
  Convention to be the oracle that ought to decide the true
  meaning of the Constitution, what did this abstract vote
  amount to? Did it condemn the doctrine of the majority?
  So far from it, that, as he understood their doctrine, they
  must have voted as the Convention did; for they do not contend
  that no Treaty shall be operative without a law to sanction
  it; on the contrary, they admit that some Treaties will
  operate without this sanction; and that it is no further
  applicable in any case than where Legislative objects are
  

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  embraced by Treaties. The term "ratify" also deserved some
  attention; for, although of loose signification in general, it had
  a technical meaning different from the agency claimed by the
  House on the subject of Treaties.

  But, after all, whatever veneration might be entertained
  for the body of men who formed our Constitution, the sense
  of that body could never be regarded as the oracular guide
  in expounding the Constitution. As the instrument came
  from them it was nothing more than the draft of a plan, nothing
  but a dead letter, until life and validity were breathed
  into it by the voice of the people, speaking through the
  several State Conventions. If we were to look, therefore, for
  the meaning of the instrument beyond the face of the instrument,
  we must look for it, not in the General Convention,
  which proposed, but in the State Conventions, which accepted
  and ratified the Constitution. To these also the
  Message had referred, and it would be proper to follow it.

2.

• The debates of the Conventions in three States (Pennsylvania,
  Virginia, and North Carolina) had been before introduced
  into the discussion of this subject, and were believed the
  only publications of the sort which contained any lights with
  respect to it. He would not fatigue the Committee with a
  repetition of the passages then read to them. He would only
  appeal to the Committee to decide whether it did not appear,
  from a candid and collected view of the debates in those
  Conventions, and particularly in that of Virginia, that the
  Treaty-making power was a limited power; and that the
  powers in our Constitution, on this subject bore an analogy to
  the powers on the same subject in the Government of Great
  Britain. He wished, as little as any member could to extend
  the analogies between the two Governments; but it was clear
  that the constituent parts of two Governments might be
  perfectly heterogeneous, and yet the powers be similar.

  At once to illustrate his meaning, and give a brief reply to
  some arguments on the other side, which had heretofore been
  urged with ingenuity and learning, he would mention, as an
  

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  example, the power of pardoning offences. This power was
  vested in the President; it was a prerogative also of the
  British King. And, in order to ascertain the extent of the
  technical term "pardon," in our Constitution, it would not
  be irregular to search into the meaning and exercise of the
  power in Great Britain. Yet, where is the general analogy
  between an hereditary Sovereign, not accountable for his
  conduct, and a Magistrate like the President of the United
  States, elected for four years, with limited powers, and liable
  to impeachment for the abuse of them?

  In referring to the debates of the State Conventions as
  published, he wished not to be understood as putting entire
  confidence in the accuracy of them. Even those of Virginia,
  which had been probably taken down by the most skilful
  hand, (whose merit he wished by no means to disparage,)
  contained internal evidence in abundance of chasms and misconceptions
  of what was said.

  The amendments proposed by the several Conventions
  were better authority, and would be found, on a general view,
  to favor the sense of the Constitution which had prevailed in
  this House. But even here it would not be reasonable to
  expect a perfect precision and system in all their votes and
  proceedings. The agitations of the public mind on that
  occasion, with the hurry and compromise which generally
  prevailed in settling the amendments to be proposed, would
  at once explain and apologize for the several apparent inconsistencies
  which might be discovered.

  He would not undertake to say that the particular amendment
  referred to in the Message, by which two states require
  that "no Commercial Treaty should be ratified without the
  consent of two-thirds of the whole number of Senators, and
  that no Territorial rights, &c. should be ceded without the
  consent of three-fourths of the members of both Houses,"
  was digested with an accurate attention to the whole subject.
  On the other hand, it was no proof that those particular Conventions,
  in annexing these guards to the Treaty power,
  

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  understood it as different from that espoused by the majority
  of the House. They might consider Congress as having the
  power contended for over Treaties stipulating on Legislative
  subjects, and still very consistently wish for the amendment
  they proposed. They might not consider the Territorial-rights
  and other objects for which they required the concurrence
  of three-fourths of the members of both Houses as
  coming within any of the enumerated powers of Congress, and,
  therefore, as not protected by that control over Treaties.
  And although they might be sensible that Commercial
  Treaties were under that control, yet, as they would always
  come before Congress with great weight after they had passed
  through the regular forms and sanctions of the Treaty department,
  it might be deemed of real importance that the
  authority should be better guarded which was to give that
  weight to them.

  He asked, whether it might not happen, even in the progress
  of a Treaty through the Treaty department, that each succeeding
  sanction might be given, more on account of preceding
  sanctions than of any positive approbation? And no
  one could doubt, therefore, that a Treaty which had received
  all these sanctions would be controlled with great reluctance
  by the Legislature, and, consequently, that it might be desirable
  to strengthen the barriers against making improper
  Treaties, rather than trust too much to the Legislative control
  over carrying them into effect.

  But, said Mr. M., it will be proper to attend to other amendments
  proposed by the ratifying Conventions, which may
  throw light on their opinions and intentions on the subject in
  question. He then read from the Declaration of Rights proposed
  by Virginia to be prefixed to the Constitution, the
  seventh article, which is as follows:

  "That all power of suspending laws, or the execution of
  laws, by any authority, without the consent of the Representatives
  of the people in the Legislature, is injurious to
  their rights, and ought not to be exercised."

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  The Convention of North Carolina, as he showed, had laid
  down the same principle in the same words. And it was to
  be observed that, in both Conventions, the article was tinder
  the head of a Declaration of Rights, "asserting and securing
  from encroachment the essential and inalienable rights of the
  people," according to the language of the Virginia Convention;
  and "asserting and securing from encroachment the great
  principles of civil and religious liberty, and the inalienable
  rights of the people," as expressed by the Convention of
  North Carolina. It must follow that these two Conventions
  considered it as a fundamental, inviolable, and universal
  principle in a free Government, that no power could supersede
  a law without the consent of the Representatives of the
  people in the Legislature.

  In the Maryland Convention also, it was among the amendments
  proposed, though he believed not decided on, "that
  no power of suspending laws, or the execution of laws, unless
  derived from the Legislature, ought to be exercised or
  allowed."

  The Convention of North Carolina had further explained
  themselves on this point, by their twenty-third amendment
  proposed to the Constitution, in the following words: "That
  no Treaties which shall be directly opposed to the existing
  laws of the United States in Congress assembled, shall be
  valid until such laws shall be repealed or made conformable
  to such Treaty; nor shall any Treaty be valid which is contradictory
  to the Constitution of the United States."

  The latter part of the amendment was an evidence that
  the amendment was intended to ascertain rather than to alter
  the meaning of the Constitution; as it could not be supposed
  to have been the real intention of the Constitution that a
  Treaty contrary to it should be valid.

  He proceeded to read the following amendments accompanying
  the ratification of State Conventions:

  The New York Convention had proposed "that no standing
  army or regular troops shall be raised or kept up in time of
  

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  peace without the consent of two-thirds of the Senators and
  Representatives in each House."

  "That no money be borrowed on the credit of the United
  States, without the assent of two-thirds of the Senators and
  Representatives in each House."

  The New Hampshire Convention had proposed "that no
  standing army shall be kept up in time of peace, unless with
  the consent of three-quarters of the members of each branch
  of Congress." In the Maryland Convention a proposition
  was made in the same words.

  The Virginia Convention had proposed "that no navigation
  law, or law regulating commerce, shall be passed without the
  consent of two-thirds of the members present in both Houses."

  "That no standing army or regular troops shall be raised or
  kept up in time of peace, without the consent of two-thirds of
  the members present in both Houses."

  "That no soldier shall be enlisted for any longer term than
  four years, except in time of war, and then for no longer term
  than the continuance of the war."

  The Convention of North Carolina had proposed the same
  three amendments in the same words.

  On a review of these proceedings, may not, said he, the
  question be fairly asked, whether it ought to be supposed that
  the several Conventions who showed so much jealousy with
  respect to the powers of commerce, of the sword, and of the
  purse, as to require, for the exercise of them, in some cases
  two-thirds, in others three-fourths of both branches of the
  Legislature, could have understood that, by the Treaty
  clauses in the Constitution, they had given to the President
  and Senate, without any control whatever from the House of
  Representatives, an absolute and unlimited power over all
  those great objects?

3.

• It was with great reluctance, he said, that he should
  touch on the third topic—the alleged interest of the smaller
  States in the present question. He was the more unwilling
  to enter into this delicate part of the discussion, as he happened
  

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  to be from a State which was in one of the extremes in
  point of size. He should limit himself, therefore, to two observations.
  The first was, that if the spirit of amity and
  mutual concession from which the Constitution resulted was
  to be consulted on expounding it, that construction ought to
  be favored which would preserve the mutual control between
  the Senate and House of Representatives, rather than that
  which gave powers to the Senate not controllable by, and
  paramount over those of the House of Representatives,
  whilst the House of Representatives could in no instance exercise
  their powers without the participation and control of
  the Senate. The second observation was, that, whatever
  jealousy might unhappily have prevailed between the smaller
  and larger States, as they had most weight in one or the other
  branch of Government, it was a fact, for which he appealed
  to the Journals of the old Congress, from its birth to its dissolution,
  and to those of the Congress under the present
  Government, that in no instance would it appear, from the
  yeas and nays, that a question had been decided by a division
  of the votes according to the size of the States. He considered
  this truth as affording the most pleasing and consoling
  reflection, and as one that ought to have the most conciliating
  and happy influence on the temper of all the States.

4.

• A fourth argument in the Message was drawn from the
  manner by which the Treaty power had been understood by
  both parties in the negotiations with foreign Powers. "In
  all the Treaties made, we have declared and they have believed,"
  &c. By we, he remarked, was to be understood the
  Executive alone, who had made the declaration, and in no
  respect the House of Representatives. It was certainly to
  be regretted, as had often been expressed, that different
  branches of the Government should disagree in the construction
  of their powers; but when this could not be avoided,
  each branch must judge for itself; and the judgment of the
  Executive could in this case be no more an authority overruling
  the judgment of the House than the judgment of the
  

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  House could be an authority overruling that of the Executive.
  It was also to be regretted that any foreign nation should at
  any time proceed under a misconception of the meaning of
  our Constitution. But no principle was better established in
  the Laws of Nations, as well as in common reason, than that
  one nation is not to be the interpreter of the Constitution of
  another. Each nation must adjust the forms and operations
  of its own Government, and all others are bound to understand
  them accordingly. It had before been remarked, and
  it would be proper to repeat it here, that of all nations Great
  Britain would be the least likely to object to this principle,
  because the construction given to our Government was particularly
  exemplified in her own.

5.

• In the fifth and last place, he had to take notice of the
  suggestion, that every House of Representatives had concurred
  in the construction of the Treaty power, now maintained
  by the Executive; from which it followed that the
  House could not now consistently act under a different construction.
  On this point, it might be sufficient to remark,
  that this was the first instance in which a foreign Treaty had
  been made since the establishment of the Constitution; and
  that this was the first time the Treaty-making power had
  come under formal and accurate discussion. Precedents,
  therefore, would readily be perceived to lose much of their
  weight. But whether the precedents found in the proceedings
  preparatory to the Algerine Treaty, or in the provisions
  relative to the Indian Treaties, were inconsistent with the
  right which had been contended for in behalf of the House, he
  should leave to be decided by the Committee. A view of
  these precedents had been pretty fully presented to them by
  a gentleman from New York [Mr. Livingston] with all the
  observations which the subject seemed to require.

  On the whole, it appeared that the rights of the House on
  the two great Constitutional points had been denied by a
  high authority in the Message before the Committee. This
  Message was entered on the Journals of the House. If
  

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  nothing was entered in opposition thereto, it would be inferred
  that the reasons in the Message had changed the
  opinion of the House, and that their claims on those great
  points were relinquished. It was proper, therefore, that the
  questions, brought fairly before the Committee in the propositions
  of the gentleman [Mr. Blount] from North Carolina,
  should be examined and formally decided. If the reasoning
  of the Message should be deemed satisfactory, it would be the
  duty of this branch of the Government to reject the propositions,
  and thus accede to the doctrines asserted by the Executive.
  If, on the other hand, this reasoning should not be
  satisfactory, it would be equally the duty of the House, in
  some such firm, but very decent terms, as are proposed, to
  enter their opinions on record. In either way, the meaning
  of the Constitution would be established, as far as depends on
  the vote of the House of Representatives.

  Mr. M. said, on a subject of such extent and importance, he
  should not attempt to go through all the observations that
  might be applicable to it. A general view of the subject was
  all that he meant at present. His omissions would be more
  than supplied by others who might enter into the discussion.

  The proposition immediately before the Committee was,
  that the Treaty with Great Britain ought to be carried into
  effect by such provisions as depended on the House of Representatives.
  This was the point immediately in question.
  But it would be proper in examining it to keep in view also
  the proposition of the gentleman from Pennsylvania [Mr.
  Maclay] which had been referred to the Committee, and which
  would be taken up of course, if the immediate question should
  be decided in the negative.

  If the proposition for carrying the Treaty into effect be
  agreed to, it must be from one of three considerations: either
  that the Legislature is bound by a Constitutional necessity to
  pass the requisite laws without examining the merits of the
  Treaty, or that, on such examination, the Treaty is deemed
  in itself a good one, or that there are good extraneous reasons
  

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  for putting it into force, although it be in itself a good one, or
  that there are good extraneous reasons for putting it into
  force, although it be in itself a bad Treaty.

  The first consideration being excluded by the decision of
  the House, that they have a right to judge of the expediency
  or inexpediency of passing laws relative to Treaties; the
  question first to be examined must relate to the merits of the
  Treaty. He then proceeded to consider the Treaty under
  three aspects: first, as it related to the execution of the
  Treaty of Peace in 1783; secondly, as it determines the
  several points in the Law of Nations; thirdly, as it respects
  the commerce between the two nations.

First. He would not inquire on which side the blame lay,
of having first violated the Treaty of 1783, or of having most
contributed to delay its execution, although he did not shrink
from the task under any apprehension that the result could
be disadvantageous to this country. The Treaty itself had
waived this inquiry, and professed to adjust all controversies
on this subject, without regard to the mutual complaints
or pretensions of the parties. It was, therefore, justly and
naturally to be expected, that the arrangements for carrying
that Treaty into effect would have been founded in the most
exact and scrupulous reciprocity. Was this the case? He
was sorry that, on the contrary, the arrangements were
founded on the grossest violation of that principle.

There were two articles which had not been executed by
Great Britain; that which related to the negroes and other
property carried away, and that which required a surrender
of the posts. The article unexecuted by the United States
was, that which required payment of all bona fide debts, according
to the Treaty now in question: this article is now to
be carried into the most complete effect by the United States,
and damages to the last fraction are to be paid for the delay.
Is there a reciprocal stipulation by Great Britain with respect
to the articles unexecuted by her? Nothing like it. She is
wholly absolved from the obligation to fulfil one of the

articles, viz.: that relating to the negroes, &c., and she is to
make no compensation whatever for delaying to fulfil the
other, viz.: the surrender of the posts.

It had been urged in apology for those very unequal
stipulations, that the injury resulting from a forbearance
to surrender the posts, was not susceptible of any precise
liquidation into pecuniary damages. However plausible this
might appear, it was by no means satisfactory. Commissioners,
such as were appointed, with full discretion for other
purposes, might have been charged with this subject, and if
they could not have done exact justice, might have mitigated
the injustice of doing nothing.

Apologies had been attempted also for the very extraordinary
abandonment of the compensation due for the negroes,
&c. It was said to be at least doubtful whether this
claim was authorized by the seventh article of the Treaty of
Peace, and that Great Britain had uniformly denied the meaning
put by the United States on that article. In reply he
made two remarks. First, that it was not true that Great
Britain had uniformly denied the American construction of
that article; on the contrary, he believed, it could be proved,
that till of late, Great Britain had uniformly admitted this
construction, and had rejected the claim on no other ground
than the alleged violation of the fourth article on the part of
the United States.

But had it been true that Great Britain had uniformly
asserted a different construction of the article, and refused
to accede to ours, what ought to have been done? Ought we
to have at once acceded to hers? By no means. Each party
had an equal right to interpret the compact; and if they could
not agree, they ought to have done in this what they did in
other cases where they could not agree; that is, have referred
the settlement of the meaning of the compact to an arbitration.
To give up the claim altogether, was to admit, either
that Great Britain had a better right than the United States
to explain the controverted point, or that the United States

had done something which in justice called for a sacrifice of
their equal right.

It was evident, he thought, from this view of the subject,
that the arrangements with respect to the Treaty of Peace
were frequently wanting both in justice and reciprocity.

It would seem, from the face of the Treaty, and the order
of the articles, that the compensation for the spoliations on
our trade had been combined with the execution of the
Treaty of Peace; and might therefore have been viewed as a
substitute for the compensation for the negroes, &c. If this
was the meaning of the instrument, it could not be the less
obnoxious to reasonable and fair judges. No man was more
thoroughly convinced than himself of the perfect justice on
which the claims of the merchants against Great Britain were
founded, nor any one more desirous to see them fully indemnified.
But compensation to them could never be a just
substitute for the compensation due to others. It was impossible
that any claims could be better founded than those
of the sufferers under the seventh article of the Treaty of
Peace; because they were supported by positive and acknowledged
stipulation, as well as by equity and right.
Just and strong as the claims of the merchants might be, and
certainly were, the United States could not be obliged to
take more care of them than of the claims equally just and
strong of other citizens; much less to sacrifice to them the
claims for property wrongfully carried off at the close of the
war, and obtaining stipulations in favor of the mercantile
claims, the mercantile claims had been relinquished, and the
other claims provided for; he asked whether the complaints
of the merchants would not have been as universal and as
loud as they would have been just?

Besides the omissions in favor of Great Britain, already
pointed out with respect to the execution of the Treaty of
Peace, he observed, that conditions were annexed to the
partial execution of it in the surrender of the Western
posts, which increased the general inequality of this part

of the Treaty, and essentially affected the value of those
objects.

The value of the posts to the United States was to be
estimated by their influence—1st, on the Indian trade; 2d,
on the conduct and temper of the Indians towards the United
States.

Their influence on the Indian trade depended principally
on the exclusive command they gave to the several carrying
places connected with the posts. These places were understood
to be of such importance in this respect, that those who
possessed them exclusively would have a monopoly, or nearly
a monopoly, of the lucrative intercourse with a great part of
the savage nations. Great Britain having hitherto possessed
these places exclusively, has possessed this advantage. It
was expected that the exclusive transfer of them would transfer
the advantage to the United States. By the Treaty now
concluded, the carrying places are to be enjoyed in common,
and it will be determined by the respective advantages under
which British and American traders will engage in the trade,
which of them is to share most in it. In this point of view he
thought the regulation highly impolitic and injurious. He
would say little of the advantage which the British would
have in their superior capital: that must be encountered in
all our commercial rivalships. But there was another consideration
which ought to have great weight on this subject.
The goods imported for the Indian trade through Canada
pay no duties. Those imported through the United States
for that trade, will have paid duties from seven to ten per
cent., and every one must see that a drawback is impracticable,
or would be attended with an expense which the business
would not bear. So far, then, as the importance of the
posts is to be considered in a commercial view, they are, in a
very great measure, stripped of it by the condition annexed
to the surrender of them. Instead of a monopoly in our
favor, the carrying places are made common under circumstances
which may leave a monopoly in the hands of Great

Britain. And this is done, too, by an article which is to last
forever.

Second. The influence of the posts on the general conduct
of the Indians, is well known to depend chiefly on their influence
on the Indian trade. In proportion, therefore, as the
condition annexed to the surrender of posts affects the one,
it must affect the other. If the British should continue to
enjoy the Indian trade, they would continue to influence the
Indian conduct; if not in the same degree as heretofore, at
least in so great a degree as to condemn the article in question.

He mentioned the permission to aliens to hold land in perpetuity
as a very extraordinary feature in this part of the
Treaty. He would not inquire how far tins might be authorized
by Constitutional principles. But he would continue to
say, that no example of such a stipulation was to be found in
any Treaty that ever was made, either where territory was
ceded, or where it was acknowledged by one nation to another.
Although it was common and right in such cases to make
regulation in favor of the property of the inhabitants, yet he
believed, that in every case that had ever happened, the
owners of landed property were universally required to swear
allegiance to the new sovereign, or to dispose of their landed
property within a reasonable time.

He took notice also of the inequality of the stipulation
which opened all the ports of the United States, as the condition
of having those of an unimportant province of Great
Britain opened in return.

With respect to the Mississippi he could not but consider
the clause relating to it as being singularly reprehensible.
Happily the adjustment of our claims with Spain had been
brought about before any evil operation of the clause had
been experienced. But the tendency of it, he thought, could
not be doubted. It was the more remarkable, that this extension
of the privileges of Great Britain on the Mississippi
beyond those in the Treaty of Peace, should have been admitted
into the new Treaty, because it is supposed by the

Treaty itself, that Great Britain may be deprived, by her
real boundary, of all pretensions to a share in the banks and
waters of the Mississippi.

With respect to the great points in the Law of Nations,
comprehended in the stipulations of the Treaty, the same
want of real reciprocity, and the same sacrifice of the interests
of the United States, were conspicuous.

It was well known to have been a great and favorite object
with the United States, "that free ships make free goods."
They have established this principle in all their other Treaties.
They have witnessed with anxiety the general effort, and the
successful advances towards incorporating this principle into
the Law of Nations; a principle friendly to all neutral nations,
and particularly interesting to the United States. He
knew that at a former period it had been conceded on the
part of the United States that the Law of Nations stood as the
present Treaty regulates it. But it did not follow that more
than acquiescence in that doctrine was proper. There was
an evident distinction between silently acquiescing in it, and
giving it the support of a formal and positive stipulation.
The former was all that could have been required, and the
latter was more than ought to have been unnecessarily yielded.

In the enumeration of contraband articles, the Treaty was
liable to similar observations. The circumstances and interests
of the United States had given way to the particular
views of the other party. The example in all other Treaties
has been disregarded. Hemp, tar, pitch, turpentine, &c.,
important staples of this country, are, without even a pretext
of reciprocity, subjected to confiscation. No nation which
produced these articles had, he believed, Treaties at present
making the same sacrifice, except Denmark, who, in the year
1780, had been induced, he knew not by what means, into an
explanation of the Treaty of 1670, by which these articles are
declared to be contraband. He observed, that this supplementary
and explanatory agreement between Great Britain
and Denmark appeared to have been the model selected for

the contraband list in the Treaty now in question. The
enumeration in the latter was transcribed, word for word,
from the former, with a single exception, which might be
thought remarkable. The article of horses, which was included
in the original, was dropped in the copy. In this
particular the article had departed from Vattel also, although
in general the Treaty seemed to have availed itself wherever
it readily could of his authority.

But, what was far more remarkable, the copy had proceeded
just as far as answered the purposes of Great Britain,
and stopped at the very point where the original would have
answered the just and essential purposes of the United States.
After enumerating the articles to be deemed contraband, the
Danish article goes on in the words following, viz: "But it
is expressly declared that among contraband merchandises
shall not be comprehended fish and meats, whether fresh
or salted, wheat, flour, corn, or other grain, beans, oil, wine,
and generally whatever serves for the nourishment and support
of life, all of which may at all times be sold and transported
like any other merchandises, even to places held by an
enemy of the two Crowns, provided they be not besieged or
blockaded."

This view of the subject naturally led him to take notice of
the clause in the British Treaty relating to provisions; which,
to say the least, wore an ambiguous countenance that was
extremely disagreeable, or which rather seemed to carry a
necessary implication that provisions, though not bound to
besieged or blockaded places, might, according to the existing
Law of Nations, be regarded as contraband. According to
the genuine Law of Nations, no articles which are not expressly
and generally contraband, are so, except in the single
case of their going to a besieged place; yet it is admitted in
the Treaty that there are other cases when provisions may
be contraband, whence the implication results, that one of
the cases might be that which had been assumed and put in
force by Great Britain in relation to the United States. The

little cases which might be devised as appurtenant to the
law which condemns what is bound to blockaded places,
cannot satisfy the import of the stipulation, because such
cases cannot be presumed to have been in the contemplation
of the parties. And if the particular case of provisions
bound to a country at war, although not to a besieged place,
was not meant to be one of the cases of contraband, according
to the existing Law of Nations, how necessary was it to have
said so; and how easy and natural would that course have
been, with the Danish example on the subject before their
eyes.

On the supposition that provisions in our own vessels bound
to countries at war with Great Britain, can be now seized by
her for her own use, on the condition stipulated, this feature
of the Treaty presents itself in a very serious light, indeed,
especially if the doctrine be resorted to as laid down by the
Executive, in the letter of the then Secretary of State [Mr.
Jefferson] to Mr. Pinckney, on the 7th September, 1793.
This letter is a comment on the British instructions of June
8, 1793, for seizing neutral provisions. After stating the
measure as a flagrant breach of the Law of Nations, and as
ruinous to our commerce and agriculture, it has the following
paragraph: "This act, too, tends directly to draw us from
that state of peace in which we are wishing to remain. It
is an essential character of neutrality to furnish no aids not
stipulated by Treaty," that is, said Mr. M., by a Treaty made
before the war, "to one party which we are not equally ready
to furnish to the other. If we permit corn to be sent to
Great Britain and her friends, we are equally bound to permit
it to France. To restrain it, would be a partiality which must
lead to war; and between restraining it ourselves and permitting
her enemies to restrain it unrightfully is no difference.
She would consider this as a mere pretext, of which she would
not be the dupe; and on what honorable ground could we
otherwise explain it? Thus we should see ourselves plunged,
by this unauthorized act of Great Britain, into a war with

which we meddle not, and which we wish to avoid, if justice
to all parties and from all parties will enable us to avoid it."
He entreated the Committee to bestow on this interesting
Executive document all the attention which it demanded.

The article prohibiting sequestration was next considered
by Mr. M. He said he should probably be among the last
who would be disposed to resort to such an expedient for
redress. But he could not approve of a perpetual and irrecoverable
abandonment of a defensive weapon, the existence
of which might render the use of it unnecessary. The
situation of this country in relation to Great Britain was a
peculiar one. As we had not fleets and armies to command
a respect for our rights, we ought to keep in our hands all such
means as our situation gave us. This article was another
instance in which no regard was paid to reciprocity. British
subjects, it was well known, had and were likely to have in
this country a great deal of the property of the king made
sacred. American citizens, it was as well known, had little,
and were likely to have little of the kind in Great Britain.
If a real reciprocity had been intended, why were not other
kinds of private property, as vessels and their cargoes, equally
protected against violation? These, even within the jurisdiction
of Great Britain, are left open to seizure and sequestration,
if Great Britain finds it expedient. And why was not
property on the high seas under the protection of the Law of
Nations, which is said to be a part of the law of the land,
made secure by a like stipulation? This would have given a
face of equality and reciprocity to the bargain. But nothing
of the sort makes a part of it; where Great Britain had a
particular interest at stake, the Treaty watchfully provides
for it; when the United States have an equal interest at stake
and equally entitled to protection, it is abandoned to all the
dangers which it has experienced.

After taking this brief notice of the positive evils in this
part of the Treaty, he might, he said, add the various omissions
which were chargeable on it. But as he should not

pretend to exhaust the subject, he would mention one only:
the not providing for the respect due to the exhibition of sea
papers. He could not but regard this omission as truly extraordinary,
when he observed that in almost every modern
Treaty, and particularly all our other Treaties, an article on
this subject was regularly inserted. Indeed, it had become
almost an article of course in the Treaties of the present
century.

Thirdly. The commercial articles of the Treaty presented
the third aspect under which he was to consider it. In the
free intercourse stipulated between the United States and
Great Britain, it could not be pretended that any advantage
was gained by the former. A Treaty was surely not necessary
to induce Great Britain to receive our raw materials and to
sell us her manufactures. On the other hand, consider what
was given up by the United States.

When the Government came into operation, it is well
known that the American tonnage employed in the British
trade bore the most inconsiderable proportion to the British
tonnage. There being nothing on our side to counteract the
influence of capital and other circumstances on the British
side, that disproportion was the natural state of things. As
some balance to the British advantages, and particularly
that of her capital, our laws had made several regulations in
favor of our shipping, among which was the important encouragement
resulting from the difference of ten per cent.
in the duties paid by American and foreign vessels. Under
this encouragement the American tonnage has increased in a
very respectable proportion to the British tonnage. Nor has
Great Britain ever deemed it prudent to attempt any countervailing
measures for her shipping, well knowing that we could
easily keep up the differences by further measures on our side.
But by the Treaty, she has reserved to herself the right to
take such countervailing measures against our existing
regulations; and we have surrendered our rights to pursue
further defensive measures against the influence of her capital.

It is justly to be apprehended, therefore, that tinder such a
restoration of the former state of things, the American tonnage
will relapse to its former disproportion to the British
tonnage.

When he turned his attention to the West India branch
of the subject, there was still greater cause for wonder and
dissatisfaction. As the Treaty now stood, Great Britain was
left as free as she ever had been to continue the entire monopoly
of the intercourse to British vessels. Recollecting, as he
did, and as every member of the Committee must do, the
whole history of this subject from the peace of 1783, through
every subsequent stage of our Independence down to the
mission of the late Envoy, it was impossible for him to express
his astonishment that any Treaty of Commerce should
have ever been acceded to which abandoned the very object
for which such a Treaty was ever contemplated. He never
could have believed that the time was so near when all the
principles, claims, and calculations, which have heretofore
prevailed among all classes of people, in every part of the
Union, on this interesting point, were to be so completely
renounced. A Treaty of Commerce with Great Britain, excluding
a reciprocity for our vessels in the West India trade,
is a phenomenon which had filled him with more surprise
than he knew how to express.

He might be told, perhaps, 1st. That Great Britain granted
to no other nation the privilege granted to the United States
of trading at all with her West Indies; and, 2dly. That this
was an important relaxation of the Colony system established
among the nations of Europe.

To the first, it was enough to reply, that no other nation
bore the same relation to the West Indies, as the United States
were essential to those Islands; and the trade with them had
been permitted purely on that account, and not as a beneficial
privilege to the United States.

To the second, that it was not true that the Colony system
required an exclusion of foreign vessels from the carrying

trade between the Colonies and foreign countries, on the
contrary, the principle and practice of the Colony system
were to prohibit, as much as would be convenient, all trade
between the Colonies and foreign countries; but when such a
trade was permitted at all as necessary for the Colonies, then
to allow the vessels of such foreign countries a reciprocal
right of being employed in the trade. Great Britain had accordingly
restrained the trade of her Islands in this country
as far as her interest in them would permit. But had she
allowed our vessels their reciprocal right to carry on the trade
so far as it was not restrained? No. Here she forced a
monopoly in her own favor, contrary to justice, and contrary
to the Colony system of every European nation having
Colonies; which, without a single exception, never opens the
trade between their Colonies and other countries without
opening it equally to vessels on both sides. This is evidently
nothing more than right and fair. A Colony is a part of an
Empire. If a nation choose, they may prohibit all trade
between a Colony and a foreign country, as they may between
any other part of their dominions and a foreign country. But
if they permit such a trade at all, it must be free to vessels on
both sides as well in the case of Colonies as of any other parts
of their dominions. Great Britain has the same right to
prohibit foreign trade between London and the United States
as between Jamaica and the United States; but if no such
prohibition be made with respect to either, she is equally
bound to allow foreign vessels a common right with her own
in both. If Great Britain were to say that no trade whatever
should be carried on between London and the United States,
she would exercise a right which we could not complain of.
If she were to say that no American vessel should be employed
in the trade, it would produce just complaint, and justify a
reciprocal regulation as to her vessels. The case of the trade
from a port in the West Indies is precisely similar.

To place the omission of the Treaty to provide a reciprocity
for our vessels in the West India trade in its true light, it

would be proper to attend to another part of the Treaty,
which tied up the hands of this country against every effort
for making it the interest of Great Britain to yield to our
reasonable claims.

He then pointed to the clause which restrains the United
States from imposing prohibitions or duties in any case on
Britain which did not extend to all other nations; observing
that the clause made it impossible to operate on the unreasonable
policy of that nation, without suspending our commerce
at the same time with all other nations whose regulations with
respect to us might be ever so favorable and satisfactory.

The fifteenth article had another extraordinary feature,
which must strike every observer. In other Treaties, putting
the parties on the footing of the most favored nation, it was
stipulated that where new favors were granted to a particular
nation in return for favors received, the party claiming the
new favor should pay the price of it. This was just and
proper where the footing of the most favored nation is established
at all. But this article gives to Great Britain the full
benefit of all privileges that may be granted to any other
nation, without requiring from her the same or equivalent
privileges with those granted by such nation. Hence it
would happen that if Spain, Portugal, or France, should open
their Colonial ports to the United States in consideration of
certain privileges in our trade, the same privileges would
result gratis, and ipso facto, to Great Britain. He considered
this stipulation as peculiarly impolitic, and that it could not
fail, in the view of the Committee, to form a very solid and
weighty objection to the Treaty.

He was not unaware of the stress that would be laid on the
article relating to the East Indies. He should leave to others
better acquainted than himself with this branch of the subject
to explain it. He made two observations, however: one
was, that judicious and well informed gentlemen, equally
judicious and well informed with any who could be consulted,
considered the article as offering not a shadow of advantage

to the United States. The other was, that no privilege was
stipulated which had not been uniformly heretofore granted
without stipulation; and as the grant could have proceeded
from no motive but a pure regard to the British interest in
that country, there was every reasonable security that the
trade would continue open as it had been, under the influence
of the same consideration.

Such being the character of the Treaty, with respect to the
execution of the Treaty of Peace, the great principles of the
Law of Nations, and the regulations of commerce, it never
could be viewed as having any claim to be carried into effect
on its own account.

Was there, then, any consideration extraneous to the
Treaty that could furnish the requisite motives? On this
subject, he observed that the House was wholly without information.
And for himself he was ready to declare that he
had neither seen, nor known, nor heard, of any circumstances
in the general posture of things, or in the particular relation
of this country to them, that could account for the unequal
and injurious arrangements which we were now called upon
for laws to execute.

But there was something farther to be taken into the account.
The continuance of the spoliations on our trade, and
the impressment of our seamen, whether, as stated in the
motion of the gentleman from Pennsylvania [Mr. Maclay],
to be understood as practical comments on the Treaty, or as
infractions of it, could not but enforce on the minds of the
Committee the most serious reflections. Here he referred
again to the passage he had read in the letter from Mr. Jefferson
to Mr. Pinckney, and asked, if, as there stated by the
Executive, our neutrality and peace were to be exposed, by
permitting practices of that kind, what might be thought of
our giving effect, in the midst of such practices, to a Treaty
from which a countenance might be derived by the nation for
going on with them.

He was aware that the Executive, notwithstanding the

doctrine and policy laid down as above, had finally concurred
in the Treaty under such circumstances. But he did not
consider that as invalidating the reasoning drawn from the
present state of things. He might, he said, be stepping on
delicate ground, but he could not think it improper to remark,
that it was a known fact that the Executive actually paused
for some weeks after the concurrence of the Senate, before the
Treaty received his signature; that it is fairly to be presumed
that a renewal of the spoliations, and a recollection of the
light in which they had been represented, were a ground of
the pause; that on that supposition he was probably
influenced in signing the Treaty when he did, by an expectation
that such a mark of confidence in the British
Government would produce an abolition of the unlawful proceeding,
and, consequently, if it had been foreseen that the
spoliations would have been continued as we find them to be,
the Treaty would not have been then signed, or if it had not
then been signed, it would not be signed, under the circumstances
of the moment when it falls under our consideration.

He should conclude, he said, with taking notice of two considerations
which had been much used as inducements to
carrying the Treaty into effect.

1.

• It was said that the greater part of the Treaty was to
  continue two years only after the present war in Europe; and
  that no very great evils could grow out of it within that
  period. To this he replied, in the first place, that ten of the
  articles containing many very objectionable stipulations were
  perpetual. In the next place, that it would be in the power
  of Great Britain, at the expiration of the other articles, to
  produce the same causes for a renewal of them, as are now
  urged in their favor. If we are now to enforce the Treaty,
  lest Great Britain should stir up the Indians, and refuse to
  pay the merchants for the property of which she has plundered
  them, can she not at the end of two or three years plunder
  them again to the same or a greater amount? Cannot the
  same apprehensions also be then revived with respect to the
  

  ---

  295

  
  
  
  Indians, and will not the arguments then be as strong as they
  are now, for renewing the same Treaty, or making any other
  equal sacrifice that her purposes may dictate?

2.

• It was asked, what would be the consequence of refusing
  to carry the Treaty into effect? He answered, that the only
  supposable consequence was, that the Executive, if governed
  by the prudence and patriotism, which he did not doubt
  would govern that department, would, of course, pursue the
  measures most likely to obtain a reconsideration and remodification
  of the offensive parts of the Treaty. The idea of war,
  as a consequence of refusing to give effect to the Treaty, was
  too visionary and incredible to be admitted into the question.
  No man would say that the United States, if an independent
  people, had not a right to judge of their own interests, and to
  decline any Treaty that did not duly provide for them. A
  refusal, therefore, in such cases, could give no cause, nor pretext,
  nor provocation, for war or for any just resentment.
  But apart from this, was it conceivable that Great Britain,
  with all the dangers and embarrassments which are thickening
  upon her, would wantonly make war on a country which was
  the best market she had in the world for her manufactures,
  which paid her an annual balance in specie of ten or twelve
  millions of dollars, and whose supplies were moreover essential
  to an important part of her dominions? Such a degree
  of infatuation ought not to be ascribed to any nation. And
  at the present crisis, for reasons well known, an unprovoked
  war with Great Britain, on this country, would argue a degree
  of madness greater than under any other circumstances that
  could well be imagined.

  With all the objections therefore to the Treaty which he
  had stated, he hoped that it would not now be carried into
  effect; and that an opportunity would take place for reconsidering
  the subject on principles more just and more favorable
  to the United States.[119]