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stituted authority other than the legislature, 1 been objected to as groundless, I will observe that they resolved that in all such cases it is that I am not satisfied that the construction their right and duty to consider the expediency given by the British government to that article of carrying a treaty into effect. If the House of the treaty, is justified even by the letter of think the faith of the nation already pledged the article. That construction rests on the supthey cannot claim any discretion; there is no position that slaves come under the general deroom left to deliberate upon the expediency of nomination of booty, and are alienated the mothe thing. The resolution now under consider- ment they fall into the possession of an enemy, ation is merely that it is expedient to carry so that all those who were in the hands of the the British treaty into effect," and not whether British when the treaty of peace was signed, we are bound by national faith to do it. I will must be considered as British and not as Amertherefore consider the question of expediency ican property, and are not included in the artialone; and thinking as I do that the House has cle. It will, however, appear by recurring to full discretion on this subject, I conceive that Vattel when speaking of the right of “Postlithere is as much responsibility in deciding in minium,” that slaves cannot be considered as a the affirmative as in rejecting the resolution, part of the booty which is alienated by the act and that we shall be equally answerable for the of capture, and that they are to be ranked rather consequences that may follow from either. with real property, to the profits of which only
It is, however, true that there was a great the captors are entitled. Be that as it may, difference between the situation of this country there is no doubt that the construction given by in the year 1794, when a negotiator was appoint- America is that which was understood by the ed, and that in which we are at present; and parties at the time of making the treaty. The that consequences will follow the refusal to journals of Mr. Adams, quoted by a gentleman carry into effect the treaty in its present stage, from Connecticut, Mr. Coit, prove this fully; which would not have attended a refusal to ne- for when he says that the insertion of this artigotiate and to enter into such a treaty. The cle was alone worth the journey of Mr. Laurens question of expediency, therefore, assumes be- from London, can it be supposed that he would fore us a different and more complex shape have laid so much stress on a clause, which, acthan when before the negotiator, the Senate or cording to the new construction now attempted the President. The treaty, in itself and ab- to be given, means only that the British would stractedly considered, may be injurious; it may commit no new act of hostility-would not carbe such an instrument as in the opinion of the ry away slaves at that time in possession of House ought not to have been adopted by the Americans? Congress recognized that conExecutive; and yet such as it is we may think struction by adopting the resolution which has it expedient under the present circumstances to been already quoted, and which was introduced carry it into effect. I will therefore first take upon the motion of Mr. Alexander Hamilton; a view of the provisions of the treaty itself, and and it has not been denied that the British minin the next place, supposing it is injurious, con- istry during Mr. Adams' embassy also agreed to sider, in case it is not carried into effect, what it. will be the natural consequences of such refu But when our negotiator had, for the sake of sal.
peace, waved that claim : when he bad also The provisions of the treaty relate either to abandoned the right which America had to dethe adjustment of past differences, or to the fu- mand an indemnification for the detention of ture intercourse of the two nations. The dif- the posts, although he had conceded the right ferences now existing between Great Britain of a similar nature, which Great Britain had and this country arose either from non-execu- for the detention of debts; when he had thus tion of some articles of the treaty of peace or given up every thing which might be supposed from the effects of the present European war. to be of a doubtful nature, it might have been The complaints of Great Britain in relation to hoped that our last claim-& claim on which the treaty of 1783 were confined to the legal there was not and there never had been any impediments thrown by the several States in dispute—the western posts should have been the way of the recovery of British debts. The restored according to the terms of the treaty of late treaty provides adequate remedy on that peace. Upon what ground the British insisted, subject; the United States are bound to make and our negotiator conceded, that this late resfull and complete compensation for any losses titution should be saddled with new conditions, arising from that source, and every ground of which made no part of the original contract, I complaint on the part of Great Britain is re- am at a loss to know. British traders are almoved.
lowed by the new treaty to remain within the Having thus done full justice to the other posts without becoming citizens of the United nation, America has a right to expect that equal States; and to carry on trade and commerce attention shall be paid to her claims arising with the Indians living within our boundaries from infractions of the treaty of peace, viz., without being subject to any control from our compensation for the negroes carried away by government. In vain is it said that if that the British; restoration of the western posts, clause had not been inserted we would have and indemnification for their detention. found it our interest to effect it by our own
On the subject of the first claim which has laws. Of this we are alone competent judges;
if that condition is harmless at present it is not boundary line leaves to the southward the possible to foresee whether, under future cir- sources of that river. Had not that been the cumstances, it will not prove highly injurious; intention of Great Britain the line would have and whether harmless or not, it is not less a been settled at once by the treaty, according to permanent and new condition imposed upon us. either of the two only rational ways doing But the fact is, that by the introduction of that it in conformity to the treaty of 1783, that is to clause, by obliging us to keep within our juris- say, by agreeing that the line should run from diction as British subjects, the very men who the northernmost sources of the Mississippi, have been the instruments used by Great Bri- either directly to the western extremity of the tain to promote Indian wars on our frontiers; Lake of the Woods, or northwardly till it interby obliging us to suffer those men to continue sected the line to be drawn due west from that their commerce with the Indians living in our lake. But by repeating the article of the treaty territory, uncontrolled by those regulations, of 1783; by conceding the free use of our ports which we have thought necessary in order to on the river, and by the insertion of the fourth restrain our own citizens in their intercourse article, we have admitted that Great Britain, with these tribes, Great Britain has preserved in all possible events, has still a right to naviher full influence with the Indian nations. By gate that river from its source to its mouth. a restoration of the posts under that condition What may be the future effects of these proviwe have lost the greatest advantage that was sions, especially as they regard our intercourse expected from their possession, viz. future se- with Spain, it is impossible at present to say; curity against the Indians. In the same man- but although they can bring us no advantage ner have the British preserved the commercial they may embroil us with that nation: and we advantages which result from the occupancy of have already felt the effect of it in our late those posts, by stipulating as a permanent con- treaty with Spain, since we were obliged on acdition, a free passage for their goods across count of that clause of the British treaty, to our portages without paying any duty. accept as a gift and a favor the navigation of
Another article of the new treaty which is that river which we had till then claimed as a connected with the provisions of the treaty of right. 1783, deserves consideration; I mean what re- The seventh article of the treaty is intended lates to the Mississippi. At the time when the to adjust those differences which arose from the navigation of that river to its mouth was by effects of the present European war. On that the treaty of peace declared to be common to article it may also be observed, that whilst it both nations, Great Britain communicated to provides a full compensation for the claims of America a right which she held by virtue of the British, it is worded in such a manner, the treaty of 1763, and as owner of the Floridas; when speaking of the indemnification for spo-. but since that cession to the United States, Eng-liations committed on the American commerce, land has ceded to Spain her claim on the Flori- as will render it liable to a construction very das, and does not own at the present time an unfavorable to our just claims on that ground. inch of ground, either on the mouth or on any The commissioners, to be appointed by virtue part of that river. Spain now stands in the of that article, are to take cognizance and to place of Great Britain, and by virtue of the grant redress only in those cases where, by treaty of 1783 it is to Spain and America, and reason of irregular or illegal captures or connot to England and America that the naviga- demnations, made under color of authority or tion of the Mississippi is at present to be com- commissions from the King of Great Britain, mon. Yet, notwithstanding this change of cir- losses have been incurred, and where adequate cumstances, we have repeated that article of compensation cannot now be actually obtained the former treaty in the late one, and have by the ordinary course of judicial proceedings. granted to Great Britain the additional privilege If Great Britain should insist that, since the of using our ports on the eastern side of the river, signing of the treaty, they had, by admitting without which, as they own no land thereon, appeals to their superior courts, afforded å they could not have navigated it. Nor is this redress by the ordinary course of judicial proall. Upon a supposition that the Mississippi ceedings; if those courts were to declare, that does not extend so far northward as to be in the captures complained of, were neither illegal, tersected by a line drawn due west from the nor made under color, but by virtue of authority Lake of the Woods, or, in other words, upon a or commissions from the king, and if that con. supposition that Great Britain has not a claim struction should prevail with the commissioneven to touch the Mississippi, we have agreed, ers; the indemnification which our plundered not upon what will be the boundary line, but merchants would actually receive, in consethat we will hereafter negotiate to settle that quence of the provisions of this article, would line. Thus leaving to future negotiation what fall very short of their expectations and of their should have been finally settled by the treaty just claims. Yet this article, considering the itself, in the same manner as all other differ- relative situation of the two countries, at the ences were, is calculated for the sole purpose, time when the negotiation took place, is as either of laying the foundation of future dis much as could reasonably have been expected putes or of recognizing a claim in Great Britain by America. When a weak nation has to conon the waters of the Mississippi, even if their | tend with a powerful one, it is gaining a great
deal if the national honor is saved even by the to what has been said on the subject of contrashadow of an indemnification, and by an appa- band articles: it is, indeed, self-evident, that, rent concession on the part of the aggressor; connecting our treaty with England on that and however objectionable the article might subject with those we have made with other appear at first view, I am, on the whole, satis- nations, it amounts to a positive compact to fied with it.
supply that nation exclusively with naval The remaining provisions of the treaty have stores whenever they may be at war. Had the no connection with past differences; they make list of contraband articles been reduced—had no part of the convention which was the naval stores and provisions, our two great staple avowed object of Mr. Jay's mission: they ap- commodities, been declared not to be contraply solely to the future intercourse of the two band, security would have been given to the nations as relating to commerce and navigation; free exportation of our produce; but instead of and had they been entirely omitted, our differ- any provision being made on that head, an ences would have been nevertheless adjusted. article of a most doubtful nature, and on which It is agreed on all hands, that, so far as relates I will remark hereafter, has been introduced. to our commerce with Great Britain, we want But I mean, for the present, to confine my obno treaty. The intercourse, although useful servations to the important question of free perhaps to both parties, is more immediately bottoms making free goods. It was with the necessary to England, and her own interest is utmost astonishment that I heard the doctrine a sufficient pledge of her granting us at all advanced on this floor, that such a provision, if times a perfect liberty of commerce to her admitted, would prove injurious to America, European ports. If we want to treat with her, inasmuch as in case of war between this it must be in order to obtain some intercourse country and any other nation, the goods of that with her colonies, and some general security in nation might be protected by the English flag. our navigation.
It is not to a state of war that the benefits of this The twelfth and thirteenth articles were ob- provision would extend; but it is the only setained by our negotiator with a view to the first curity which neutral nations can have against object. The twelfth article, however, which the legal plundering on the high seas, so often relates to our intercourse with the West Indies, committed by belligerent powers. It is not for is found upon examination to be accompanied the sake of protecting an enemy's property; it by a restriction of such nature, that what was is not for the sake of securing an advantageous granted by Great Britain as a favor, has been carrying trade; but it is in order effectually to. rejected by the Senate as highly injurious.. The secure ourselves against sea aggressions, that thirteenth article, which relates to the East this provision is necessary. Spoliations may Indies, and remains a part of the treaty, is, like arise from unjust orders, given by the governthe twelfth, conferring a favor limited by restric- ment of a belligerent nation to their officers and tions, and so far as I can depend on the opinion cruisers, and these may be redressed by appliof the best informed judges on this subject, cation to and negotiation with that order. But these restrictions put the trade in a more disad- no complaints, no negotiations, no orders of vantageous situation than it was before the government itself, can give redress when those treaty. As the West India article declares, spoliations are grounded on a supposition, that that we shall not re-export any produce of those the vessels of the neutral nation have an enemy's islands to Europe, so the East India article, at property on board, as long as such property is the same time that it grants us the privilege not protected by the flag of the neutral nation; which we enjoyed before, and which we en as long as it is liable to be captured, it is not joyed because it was the interest of the East sufficient, in order to avoid detention and capIndia Company to grant it to us—that of being ture, to have no such property on board. Every admitted into the British seaports there-pro- privateer, under pretence that he suspects an hibits our carrying any articles from thence to enemy's goods to be part of a cargo, may search, any place except to America; which regulation vex and capture a vessel ; and if in any corner amounts to a total prohibition to export East of the dominions of the belligerent power, & India articles to China, or to obtain freights single judge can be found inclined, if not deback to Europe; and upon the whole I cannot termined, to condemn, at all events, before his help thinking, from what has fallen on this tribunal; all vessels so captured will be brought floor, and what I have heard elsewhere, from there, and the same pretence which caused the gentlemen of great commercial knowledge, that capture will justify a condemnation. The only if the East India commerce had been as gene- nation who persists in the support of this docrally understood in America as the West India trine, as making part of the law of nations, is trade, that so much boasted of article would the first maritime power of Europe, whom their have met the same fate in the Senate with the interest, as they are the strongest, and as there twelfth article.
is hardly a maritime war in which they are not But if, leaving commercial regulations, we involved, leads to wish for a continuation of a shall seek in the treaty for some provisions se- custom, which gives additional strength to their curing to us the free navigation of the ocean overbearing dominion over the seas. against any future aggressions on our trade, other nations have different sentiments and a where are they to be found? I can add nothing different interest. During the American war,
in the year 1780, so fully convinced were the our trade—any gross violation of our rights as neutral nations of the necessity of introducing a neutral nation? We have no fleet to oppose that doctrine of free bottoms making free or to punish the insults of Great Britain ; but, goods, that all of them, excepting Portugal, who from our commercial relative situation, we was in a state of vassalage to, and a mere ap- have it in our power to restrain her aggressions, pendage of Great Britain, united in order to by restrictions on her trade, by a total prohibiestablish the principle, and formed for that pur- tion of her manufactures, or by a sequestration pose the alliance known by the name of the of the debts due to her. By the treaty, not armed neutrality. All the belligerent powers, satisfied with receiving nothing, not satisfied except England, recognized and agreed to the with obtaining no security for the future, we doctrine. England itself, was obliged, in some have, of our own accord, surrendered those défenmeasure, to give for awhile, a tacit acquies- sive arms, for fear they might be abused by ourcence. America, at the time, fully admitted the selves. We have given up the two first, for the principle, although then at war.
whole time during which we might want them
most, the period of the present war; and the Mr. Gallatin quoted on this subject the jour- last, the power of sequestration, we have abannals of Congress of the year 1780, page 210, doned for ever; every other article of the treaty and of the year 1781, page 80.
of commerce is temporary; this perpetual.
I shall not enter into a discussion of the imIt has been introduced into every other morality of sequestering private property. What treaty we have conclnded since our existence can be be more immoral than war; or plunderas a nation. Since the year 1780, every nation, ing on the high seas, legalized under the name so far as my knowledge goes, has refused to of privateering? Yet self-defence justifies the enter into a treaty of commerce with England, first, and the necessity of the case may, at unless that provision was inserted. Russia, for least in some instances, and where it is the that reason, would not renew their treaty, only practicable mode of warfare left to a which had expired in 1786; although I believe, nation, apologize even for the last. In the same that during the present war, and in order to manner, the power of sequestration may be reanswer the ends of the war, they formed a sorted to, as the last weapon of self-defence, temporary convention, which I have not seen, rather than to seek redress by an appeal to but which, perhaps, does not include that pro- arms. It is the last peace measure that can vision. England consented to it in her treaty be taken by a nation ; but the treaty, by declarwith France, in 1788, and we are the first neu-ing, that in case of national differences it shall tral nation who has abandoned the common not be resorted to, has deprived us of the cause, given up the claim, and by a positive power of judging of its propriety, has rendered declaration inserted in our treaty, recognized it an act of hostility, and has effectually taken the contrary doctrine. It has been said, that off that restraint, which a fear of its exercise under the present circumstances, it could not laid upon Great Britain. be expected that Great Britain would give up Thus it appears that by the treaty, we have the point; perhaps so; but the objection is promised full compensation to England for not, that our negotiator has not been able to every possible claim they may have against us, obtain that principle, but that he has consented that we have abandoned every claim of a doubtto enter into a treaty of commerce, which we ful nature, and that we have consented to redo not want, and which has no connection with ceive the posts, our claim to which was not an adjustment of our differences with Great disputed, under new conditions and restrictions Britain, without the principle contended for, never before contemplated—that after having making part of that treaty. Unless we can ob- obtained by those concessions an adjustment of tain security for our navigation, we want no past differences, we have entered into a new treaty; and the only provision which can give agreement, unconnected with those objects, us that security, should have been the “sine qua which have heretofore been subjects of discusnon" of a treaty. On the contrary, we have sion between the two nations; and that by this disgusted all the other neutral nations of treaty of commerce and navigation, we have Europe, without whose concert and assistance obtained no commercial advantage which we there is but little hope that we shall ever obtain did not enjoy before, we have obtained no secuthat point; and we have taught Great Britain rity against future aggressions, no security in that we are disposed to form the most intimate favor of the freedom of our navigation, and we connections with her, even at the expense of have parted with every pledge we had in our recognizing a principle the most fatal to the hands, with every power of restriction, with liberty of commerce, and to the security of our every weapon of self-defence which is calcunavigation.
lated to give us any security. But, if we could not obtain any thing which There is yet another article, which stands by might secure us against future aggressions, itself, unconnected either with adjustment of should we have parted, without receiving any past disputes, or with commercial regulations; equivalent, with those weapons of self-defence, I mean the ninth article, which provides that which, although they could not repel, might, in British subjects now holding lands in the United some degree, prevent any gross attacks upon | States shall continue to hold them, and may sell
or devise the same; and that neither they, nor of that State and of the south-western territory, their heirs or assigns shall, so far as may respect may be revived by the treaty; for although a the said lands, and the legal remedies incident law has psssed in that State to confiscate the thereto, be regarded as aliens. I am not a lands of all the British subjects who should be lawyer, and, in expressing an opinion, I mean absent on a certain day, yet the proprietary nothing more than to communicate my doubts, lands were not meant to be comprehended and ask for an explanation. There would be within that provision; the commissioners who no difficulty in finding the meaning of the were to sell the confiscated property, never disarticle, did it apply only to those British sub- posed of a single acre of the lands, which were jects, who have acquired lands under the laws granted by another law of the State as vacant of the States; but the former connection of and not as confiscated lands, without having this country with England, renders the subject been actually escheated to the State by an office difficult to be explained, even by men of legal being found or any other formality whatever; abilities; for its explanation must depend on the and they are even expressly distinguished from consequences of a principle unknown to the laws land to be confiscated by the very act passed for of England. The principle of the English law the purpose of confiscating. is, that no subject can shake his allegiance, that
Mr. Gallatin here read the clause of the act is to say, that no man who was once a citizen, can
he alluded to. become an alien. Yet, by the effect of the revolution, British subjects, who, before 1776, had a Supposing, however, every thing I have said right to hold lands in America, as part of the on this subject as very doubtful, it is not less British Empire, have become aliens in the true that this article, under an appearance of United States, and the effect of that alienage reciprocity, grants à positive advantage to upon their titles to such lands, and how far that Great Britain without any equivalent being effect is changed by the operation of the treaty, given—is, if not an infraction, at least a restricseem to me to be questions of a very nice tion over the legislative powers, and an excepnature. I will, however, beg leave to suggest tion to the laws of the different States on a what to me appears to be the effect of the subject of a delicate nature—may involve not treaty. So far as lands have been confiscated only some of our citizens, but even several of by the laws of any State, and those laws carried the States in complex lawsuits and serious eminto effect, and so far as such lands having been barrassment, and although it may thus create considered as escheated, an office has been much mischief, can give us no possible benefit. found, and the escheat been completed, I con- From the review I have taken of the treaty, ceive the treaty will create no alteration; but and the opinions I have expressed, it is hardly where the lands have not been confiscated, necessary for me to add, that I look upon the either because no laws had been passed for that instrument as highly injurious to the interests purpose, or because they had not been carried of the United States, and that I earnestly wish into effect before the treaty of 1783, and where it never had been made; but whether in its the legal formalities of finding an office, &c., present stage, the House ought to refuse to necessary to complete an escheat have been neg- carry it into effect, and what will be the probalected, it seems to me the treaty may operate ble consequences of a refusal, is a question in three ways. Firstly, it will prevent any which requires the most serious attention, and State from completing an escheat by finding an which I will now attempt to investigate. office, &c., when they have.neglected doing it. Should the treaty be finally defeated, either Secondly, it will enable the British subjects to new negotiations will be more successful or sell or devise, and therefore to convert their life Great Britain will refuse to make a new arestate into a fee-simple for ever. And thirdly, rangement, and leave things in the situation in it will enable those subjects to institute suits in which they now are, or war will be the consecourts for the recovery of those lands, pro- quence. I will, in the course of my observaviding them with a legal remedy, they had not tions, make some remarks on the last supposibefore, since their alienage would have been a tion.' I do not think that the first will be very sufficient bar against bringing real actions. If probable at present, and I am of opinion that the treaty may be supposed to have that effect, under the present circumstances, and until some its tendency so far as relates, not to private change takes place in our own or in the relaestates, but to the former proprietary estates, tive political situation of the European nations, may prove vexatious and injurious to several of it is to be apprehended that in such a case, new the States. It will strengthen the proprietary negotiations will either be rejected or prove claims of the Penn family, not in Pennsylvania, unsuccessful. Such an event might have perbut in the State of Delaware. It may have haps followed a rejection of the treaty even by some effect on the decision of the Fairfax claim the Senate or by the President. After the nein Virginia, and even on such parts of the lands gotiator employed by the United States had of Maryland, which have been sold, although once affixed his signature it must have become formerly the property of the Baltimore family, very problematical, unless he had exceeded his as vacant lands and not confiscated lands. În powers, whether a refusal to sanction the conVrth Carolina, the proprietary claim of the tract he had made would not eventually defeat,
ville family, which includes the best half | at least for a time, the prospect of a new treaty.