if that condition is harmless at present it is not possible to foresee whether, under future circumstances, it will not prove highly injurious; and whether harmless or not, it is not less a permanent and new condition imposed upon us. But the fact is, that by the introduction of that clause, by obliging us to keep within our jurisdiction as British subjects, the very men who have been the instruments used by Great Britain to promote Indian wars on our frontiers; by obliging us to suffer those men to continue their commerce with the Indians living in our territory, uncontrolled by those regulations, which we have thought necessary in order to restrain our own citizens in their intercourse with these tribes, Great Britain has preserved her full influence with the Indian nations. By a restoration of the posts under that condition we have lost the greatest advantage that was expected from their possession, viz. future security against the Indians. In the same manner have the British preserved the commercial advantages which result from the occupancy of those posts, by stipulating as a permanent condition, a free passage for their goods across our portages without paying any duty. Another article of the new treaty which is connected with the provisions of the treaty of 1783, deserves consideration; I mean what relates to the Mississippi. At the time when the navigation of that river to its mouth was by the treaty of peace declared to be common to both nations, Great Britain communicated to America a right which she held by virtue of the treaty of 1763, and as owner of the Floridas; but since that cession to the United States, England has ceded to Spain her claim on the Floridas, and does not own at the present time an inch of ground, either on the mouth or on any part of that river. Spain now stands in the place of Great Britain, and by virtue of the treaty of 1783 it is to Spain and America, and not to England and America that the navigation of the Mississippi is at present to be common. Yet, notwithstanding this change of circumstances, we have repeated that article of the former treaty in the late one, and have granted to Great Britain the additional privilege of using our ports on the eastern side of the river, without which, as they own no land thereon, they could not have navigated it. Nor is this all. Upon a supposition that the Mississippi does not extend so far northward as to be intersected by a line drawn due west from the Lake of the Woods, or, in other words, upon a supposition that Great Britain has not a claim even to touch the Mississippi, we have agreed, not upon what will be the boundary line, but that we will hereafter negotiate to settle that line. Thus leaving to future negotiation what should have been finally settled by the treaty itself, in the same manner as all other differences were, is calculated for the sole purpose, either of laying the foundation of future disputes or of recognizing a claim in Great Britain on the waters of the Mississippi, even if their boundary line leaves to the southward the sources of that river. Had not that been the intention of Great Britain the line would have been settled at once by the treaty, according to either of the two only rational ways of doing it in conformity to the treaty of 1783, that is to say, by agreeing that the line should run from the northernmost sources of the Mississippi, either directly to the western extremity of the Lake of the Woods, or northwardly till it intersected the line to be drawn due west from that lake. But by repeating the article of the treaty of 1783; by conceding the free use of our ports on the river, and by the insertion of the fourth article, we have admitted that Great Britain, in all possible events, has still a right to navigate that river from its source to its mouth. What may be the future effects of these provisions, especially as they regard our intercourse with Spain, it is impossible at present to say; but although they can bring us no advantage they may embroil us with that nation: and we have already felt the effect of it in our late treaty with Spain, since we were obliged on account of that clause of the British treaty, to accept as a gift and a favor the navigation of that river which we had till then claimed as a right. The seventh article of the treaty is intended to adjust those differences which arose from the effects of the present European war. On that article it may also be observed, that whilst it provides a full compensation for the claims of the British, it is worded in such a manner, when speaking of the indemnification for spoliations committed on the American commerce, as will render it liable to a construction very unfavorable to our just claims on that ground. The commissioners, to be appointed by virtue of that article, are to take cognizance and to grant redress only in those cases where, by reason of irregular or illegal captures or condemnations, made under color of authority or commissions from the King of Great Britain, losses have been incurred, and where adequate compensation cannot now be actually obtained by the ordinary course of judicial proceedings. If Great Britain should insist that, since the signing of the treaty, they had, by admitting appeals to their superior courts, afforded a redress by the ordinary course of judicial proceedings; if those courts were to declare, that the captures complained of, were neither illegal, nor made under color, but by virtue of authority or commissions from the king, and if that construction should prevail with the commissioners; the indemnification which our plundered merchants would actually receive, in consequence of the provisions of this article, would fall very short of their expectations and of their just claims. Yet this article, considering the relative situation of the two countries, at the time when the negotiation took place, is as much as could reasonably have been expected by America. When a weak nation has to contend 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 apparent concession on the part of the aggressor; and however objectionable the article might appear at first view, I am, on the whole, satisfied with it. band articles: it is, indeed, self-evident, that, connecting our treaty with England on that subject with those we have made with other nations, it amounts to a positive compact to 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 object. The twelfth article, however, which relates to our intercourse with the West Indies, is found upon examination to be accompanied by a restriction of such nature, that what was granted by Great Britain as a favor, has been rejected by the Senate as highly injurious.. The thirteenth article, which relates to the East Indies, and remains a part of the treaty, is, like the twelfth, conferring a favor limited by restrictions, and so far as I can depend on the opinion of the best informed judges on this subject, these restrictions put the trade in a more disadvantageous situation than it was before the treaty. As the West India article declares, that we shall not re-export any produce of those islands to Europe, so the East India article, at the same time that it grants us the privilege which we enjoyed before, and which we enjoyed because it was the interest of the East India Company to grant it to us-that of being admitted into the British seaports there-prohibits our carrying any articles from thence to any place except to America; which regulation amounts to a total prohibition to export East India articles to China, or to obtain freights back to Europe; and upon the whole I cannot help thinking, from what has fallen on this floor, and what I have heard elsewhere, from gentlemen of great commercial knowledge, that if the East India commerce had been as generally understood in America as the West India trade, that so much boasted of article would have met the same fate in the Senate with the twelfth article. But if, leaving commercial regulations, we shall seek in the treaty for some provisions securing to us the free navigation of the ocean against any future aggressions on our trade, e are they to be found? I can add nothing curity which neutral nations can have against the legal plundering on the high seas, so often committed by belligerent powers. It is not for the sake of protecting an enemy's property; it is not for the sake of securing an advantageous carrying trade; but it is in order effectually to. secure ourselves against sea aggressions, that this provision is necessary. Spoliations may arise from unjust orders, given by the government of a belligerent nation to their officers and cruisers, and these may be redressed by application to and negotiation with that order. But no complaints, no negotiations, no orders of government itself, can give redress when those spoliations are grounded on a supposition, that the vessels of the neutral nation have an enemy's property on board, as long as such property is not protected by the flag of the neutral nation; as long as it is liable to be captured, it is not sufficient, in order to avoid detention and capture, to have no such property on board. Every privateer, under pretence that he suspects an enemy's goods to be part of a cargo, may search, vex and capture a vessel; and if in any corner of the dominions of the belligerent power, a single judge can be found inclined, if not determined, to condemn, at all events, before his tribunal; all vessels so captured will be brought there, and the same pretence which caused the capture will justify a condemnation. The only nation who persists in the support of this doctrine, as making part of the law of nations, is the first maritime power of Europe, whom their interest, as they are the strongest, and as there is hardly a maritime war in which they are not involved, leads to wish for a continuation of a custom, which gives additional strength to their overbearing dominion over the seas. All the other nations have different sentiments and a different interest. During the American war, in the year 1780, so fully convinced were the neutral nations of the necessity of introducing that doctrine of free bottoms making free goods, that all of them, excepting Portugal, who was in a state of vassalage to, and a mere appendage of Great Britain, united in order to establish the principle, and formed for that purpose the alliance known by the name of the armed neutrality. All the belligerent powers, except England, recognized and agreed to the doctrine. England itself, was obliged, in some measure, to give for awhile, a tacit acquiescence. America, at the time, fully admitted the principle, although then at war. Mr. Gallatin quoted on this subject the journals of Congress of the year 1780, page 210, and of the year 1781, page 80. our trade-any gross violation of our rights as a neutral nation? We have no fleet to oppose or to punish the insults of Great Britain; but, from our commercial relative situation, we have it in our power to restrain her aggressions, by restrictions on her trade, by a total prohibition of her manufactures, or by a sequestration of the debts due to her. By the treaty, not satisfied with receiving nothing, not satisfied with obtaining no security for the future, we have, of our own accord, surrendered those defensive arms, for fear they might be abused by ourselves. We have given up the two first, for the whole time during which we might want them most, the period of the present war; and the last, the power of sequestration, we have abandoned for ever; every other article of the treaty of commerce is temporary; this perpetual. not be resorted to, has deprived us of the power of judging of its propriety, has rendered it an act of hostility, and has effectually taken off that restraint, which a fear of its exercise laid upon Great Britain. 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 concluded 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 cause, given up the claim, and by a positive declaration inserted in our treaty, recognized the contrary doctrine. It has been said, that under the present circumstances, it could not be expected that Great Britain would give up the point; perhaps so; but the objection is not, that our negotiator has not been able to obtain that principle, but that he has consented to enter into a treaty of commerce, which we do not want, and which has no connection with an adjustment of our differences with Great Britain, without the principle contended for, making part of that treaty. Unless we can obtain security for our navigation, we want no treaty; and the only provision which can give us that security, should have been the "sine qua non" of a treaty. On the contrary, we have disgusted all the other neutral nations of Europe, without whose concert and assistance there is but little hope that we shall ever obtain that point; and we have taught Great Britain that we are disposed to form the most intimate connections with her, even at the expense of recognizing a principle the most fatal to the liberty of commerce, and to the security of our navigation. But, if we could not obtain any thing which might secure us against future aggressions, should we have parted, without receiving any equivalent, with those weapons of self-defence, which, although they could not repel, might, in some degree, prevent any gross attacks upon Thus it appears that by the treaty, we have promised full compensation to England for every possible claim they may have against us, that we have abandoned every claim of a doubtful nature, and that we have consented to receive the posts, our claim to which was not disputed, under new conditions and restrictions never before contemplated-that after having obtained by those concessions an adjustment of past differences, we have entered into a new agreement, unconnected with those objects, which have heretofore been subjects of discussion between the two nations; and that by this treaty of commerce and navigation, we have obtained no commercial advantage which we did not enjoy before, we have obtained no security against future aggressions, no security in favor of the freedom of our navigation, and we have parted with every pledge we had in our hands, with every power of restriction, with every weapon of self-defence which is calculated to give us any security. There is yet another article, which stands by itself, unconnected either with adjustment of past disputes, or with commercial regulations; I mean the ninth article, which provides that British subjects now holding lands in the United States shall continue to hold them, and may sell may be revived by the treaty; for although a law has psssed in that State to confiscate the lands of all the British subjects who should be absent on a certain day, yet the proprietary lands were not meant to be comprehended within that provision; the commissioners who were to sell the confiscated property, never disgranted by another law of the State as vacant and not as confiscated lands, without having been actually escheated to the State by an office being found or any other formality whatever; and they are even expressly distinguished from land to be confiscated by the very act passed for the purpose of confiscating. Mr. Gallatin here read the clause of the act he alluded to. Supposing, however, every thing I have said on this subject as very doubtful, it is not less true that this article, under an appearance of reciprocity, grants a positive advantage to Great Britain without any equivalent being given-is, if not an infraction, at least a restriction over the legislative powers, and an exception to the laws of the different States on a subject of a delicate nature-may involve not only some of our citizens, but even several of the States in complex lawsuits and serious embarrassment, and although it may thus create much mischief, can give us no possible benefit. 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 the said lands, and the legal remedies incident thereto, be regarded as aliens. I am not a lawyer, and, in expressing an opinion, I mean nothing more than to communicate my doubts, and ask for an explanation. There would be no difficulty in finding the meaning of the article, 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 of the States; but the former connection of this country with England, renders the subject difficult to be explained, even by men of legal abilities; for its explanation must depend on the consequences of a principle unknown to the laws of England. The principle of the English law is, that no subject can shake his allegiance, that is to say, that no man who was once a citizen, can become an alien. Yet, by the effect of the revolution, British subjects, who, before 1776, had a right to hold lands in America, as part of the British Empire, have become aliens in the United States, and the effect of that alienage upon their titles to such lands, and how far that effect is changed by the operation of the treaty, seem to me to be questions of a very nice nature. I will, however, beg leave to suggest what to me appears to be the effect of the treaty. So far as lands have been confiscated by the laws of any State, and those laws carried into effect, and so far as such lands having been considered as escheated, an office has been found, and the escheat been completed, I conceive the treaty will create no alteration; but where the lands have not been confiscated, either because no laws had been passed for that purpose, or because they had not been carried into effect before the treaty of 1783, and where the legal formalities of finding an office, &c., necessary to complete an escheat have been neglected, it seems to me the treaty may operate in three ways. Firstly, it will prevent any State from completing an escheat by finding an 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 before, since their alienage would have been a sufficient bar against bringing real actions. If the treaty may be supposed to have that effect, its tendency so far as relates, not to private estates, but to the former proprietary estates, may prove vexatious and injurious to several of the States. It will strengthen the proprietary claims of the Penn family, not in Pennsylvania, but in the State of Delaware. It may have some effect on the decision of the Fairfax claim in Virginia, and even on such parts of the lands of Maryland, which have been sold, although formerly the property of the Baltimore family, as vacant lands and not confiscated lands. In North Carolina, the proprietary claim of the Grandville family, which includes the best half From the review I have taken of the treaty, and the opinions I have expressed, it is hardly necessary for me to add, that I look upon the instrument as highly injurious to the interests of the United States, and that I earnestly wish it never had been made; but whether in its present stage, the House ought to refuse to carry it into effect, and what will be the probable consequences of a refusal, is a question which requires the most serious attention, and which I will now attempt to investigate. tions, make some remarks on the last supposition. I do not think that the first will be very probable at present, and I am of opinion that under the present circumstances, and until some change takes place in our own or in the relative political situation of the European nations, it is to be apprehended that in such a case, new negotiations will either be rejected or prove unsuccessful. Such an event might have perhaps followed a rejection of the treaty even by the Senate or by the President. After the negotiator employed by the United States had once affixed his signature it must have become very problematical, unless he had exceeded his powers, whether a refusal to sanction the contract he had made would not eventually defeat, at least for a time, the prospect of a new treaty. I conceive that the hopes of obtaining better | conditions by a new negotiation are much less in the present stage of the business than they were when the treaty was in its inchoate form before the Executive; and in order to form a just idea of the consequences of a rejection at present, I will contemplate them upon this supposition, which appears to me most probable, to wit, that no new treaty will take place for a certain period of time. In mentioning my objections to the treaty itself, I have already stated the advantages which in my opinion would result to the United States from the non-existence of that instrument; I will not repeat, but proceed at once to examine what losses may accrue that can be set off against those advantages. tended that those decisions cannot be consider- support the claims contended for by their re- by some, at five millions sterling, one-half of them will amount to more than twelve millions of dollars; and when we take into consideration the amount of principal we shall have to pay, on the principles stated by a gentleman from Virginia, Mr. Nicholas, his calculation of near fifteen millions of dollars in the whole, will not seem exaggerated. But even taking the amount of those debts at the lowest estimate, the amount of war interest, and of the principal we shall have to pay, far exceeds the amount which the most sanguine among us expected to recover from the government of Great Britain by virtue of the treaty, on account of the spoliations committed on our trade. As I am not sensible that a single commer-agents, who will come with a determination to cial advantage has been obtained by the treaty, cannot mention the loss of any, as a mischief that may attend its rejection. If, however, the East India article is supposed to be beneficial, it must, on the other hand, be conceded that we have enjoyed every benefit arising from it for a number of years, without treaty, and consequently because it was the interest of the East India company that we should enjoy them,tain at the beginning of the war; for it must be and that it is not probable that circumstances remarked that this claim extends to all debts will so far change there during the short period whether good or bad, because it has been reto which this article is limited as to induce that fused on all, and can be recovered by the ordicompany to adopt a different policy towards us. nary course of judicial proceedings on none. The indemnification to be obtained from What those debts amount to is very uncertain. Great Britain for spoliations on our trade, if I have seen a variety of calculations on this subconsidered as a national reparation for a nation-ject. If they are estimated as they have been al aggression, is certainly, as I have already stated it, an important object gained by the treaty. But if it is to be viewed as a money transaction, and its loss as a national loss of money, it will be well to examine whether in this point of view, viz. of money, we should not be gainers on the whole by not carrying the treaty into effect. I have made no objections to that article of the treaty which relates to British debts. Whatever the amount may be, if it is just that we should pay them it must be just to pay that amount; but when we are examining the situation in which we should be if we had no treaty, when we are calculating the losses we are to experience by obtaining no compensation for our claims, it is right to consider the amount of those claims, and to compare it with the probable amount of the claims of the other party, and of the sums of money which a non-execution of the treaty and a refusal on the part of Great Britain to do us justice, to indemnify us for our own losses and to enter into new negotiations, would justify us in withholding. That subject has already undergone a full discussion, and I will recall the attention of the committee only to the demand of Great Britain for interest on the British debts. It is well known that our courts have uniformly refused to allow to the British creditors the interest which has accrued on their demands during the late war, that is to say, during eight years. Although we have con The only positive loss, therefore, which in my opinion will arise from our having no treaty is that of the western posts. I have already stated that, surrendered in the manner settled by the treaty, I conceive them to be of very insignificant value in a commercial point of view, and of very little use, if any, as a security against the Indians; for it must be remembered that our own laws, for the purpose of preserving peace with those tribes, have enacted under severe penalties that our own citizens shall on no account whatever, cross over the boundary line between them and ourselves, although within the territory ceded to us by Great Britain, unless they have special licenses from our government. It is therefore our own opinion that peace cannot be preserved with the In |