been the cause of the Treaty not being executed, or that both had been equally guilty. He would examine whether either of these concessions had been pursued. [APRIL, 1796. To obtain a surrender of the posts, and the territory withheld from us, we have sanctioned the subsequent alienations of land by the King of Great Britain. We have confirmed the claims of the inhabitants and dispensed with their alle-amount may not be certain. This might be a giance, by permitting them to remain subjects of Great Britain; we have opened our frontier to all their citizens, and permitted them to retain a share of the Indian trade. Mr. N. did not pretend to judge of the commercial effect of the intercourse between the frontiers, but he apprehended that, in another respect, this concession would destroy the whole value of the acquisition. The traders would be enabled to maintain their accustomed influence over the Indians, and would have more inducements than when they had a monopoly of the trade to embroil them with the United States. Formerly, they were interested in their continuing in peace, as war prevented the acquisition of skins and furs; but when American traders shall embark in the trade, they will have an obvious interest in war as the certain means of banishing their rivals. It appears, then, that the Treaty of 1783, in this respect, is not revived-that there is a new contract with respect to the posts, and much less will be obtained than if that Treaty had been executed. demanded for withholding the posts, because they could not be computed. It will be agreed by those who press the acceptance of this Treaty in order to obtain the posts, that they are important to the United States. If of the consequence which they are represented to be, twelve years dispossession must have been a real injury, and the claim on Great Britain will be indisputable, although the good pretext for evading a payment to the United States, if this claim stood unconnected with any other; but it must be considered as a very shameless suggestion to enforce the payment of damages incurred by them. It is certainly a sufficient justification for retaining what is in their hands until Great Britain shall offer something on this account; otherwise she will be screened by her cunning in causing the subject of injury. Again, it has been said that this inequality in the Treaty was proper, because the right to recover debts returned with the peace, and did not depend merely on the Treaty. It is to be remembered, that the United States justify it as a retaliation for breach on the part of Great Britain, and that, in forming this Treaty, it was agreed to waive the right to retaliate; or, rather, the question, who first infringed the Treaty. It is only to be inquired, then, whether this was a proper subject of retaliation? and, if it was, the United States ought to escape all penalty for using it, or Great Britain must be equally subject to compensation for her infractions. (For this, see Marten's Law of Nations, page 268, where it is said that it matters not, in this respect, whether rights are innate, or whether they have been acquired by express or tacit covenant, or otherwise.) When the claims of Great Britain, under the Treaty of 1783, became the subject of the present Treaty, the stipulations discover a different principle. The United States give up the claim for negroes, and agree to receive the posts on terms which greatly diminish their value; but, when Again: it has been said that the interference in the debts due from citizens of the United States the recovery of debts was not on the part of the to subjects of Great Britain are to be provided for. United States, but was from the individual States. there is not a stipulation that they may now be This argument admits that it would have been pursued without hindrance. but there is an engage-justifiable if Congress had directed it, but supment, on the part of the United States, to pay all losses which have arisen from the infraction of the Treaty of Peace, so far as it respects them. On what ground could this assumption have been made? Why is this penalty imposed on the United States? There can be but one justification, and that is, that they had been guilty of the first infraction of the Treaty of Peace, and must make amends; but there was to be no concession of this kind, so that if damages were to be given at all, they should be given on both sides. It seems clear, then, whatever pretences are made by the Treaty or its advocates, that the first infraction of the Treaty of Peace is fixed on the United States, and that they are to make compensation for an injury. Where does the conciliating temper of Great Britain manifest itself? Had she a claim under the Treaty of 1783, which is forgotten? Does she not receive everything which she could have demanded in relation to that Treaty? The United States are to indemnify her citizens com-solvency happening during the interference. This pletely for the non-execution at the time, and are to receive less than was promised them without the least compensation for the delay. But it is somewhere said, that the damages could not be poses it wrong for want of that direction. How Great Britain could avail herself of this, caunot be conceived; but how it can justify this demand on the United States, must take more than common ingenuity to discover. The effect of this retaliation is only to produce a fund for satisfying injuries done by Great Britain. It would be immaterial in what manner the fund was obtained, and Great Britain could never object to the use of it on account of that manner. Å fair investigation of this agreement requires some estimate of the amount of those damages. This must depend upon conjecture, but showing the cases in which the United States will be liable, will sufficiently show that its amount will be seriously felt. The principle of the Treaty and its express stipulation is, that the United States will make good all losses by the operation of legal impediments to the recovery of debts. A case understood on all hands to be an object of the Treaty is, that of in will be found to amount to a considerable sum. Another case is, where, from the course of things, the length of time elapsed will put it out of the power of creditors to produce that kind of proof which the laws of the States require, and where it will be necessary, to execute the principle of the Treaty, to admit some other kind of proof. The Treaty seems to have had this case in view, for it has expressly empowered the Commissioners to receive books, copies of books, and such other proof as they may think proper. In Virginia, the business was done in such a manner that a great part of the debts remained due on open accounts without specialty, and the common law principles of evidence governed the Courts, except within two years of the date of the account, within which time a merchant was permitted to prove his account by his own oath. This privilege cannot now be claimed in any of those cases, and the other modes of proof are perhaps uniformly lost by the length of time. There seems, then, under the Treaty, to be an irresistible claim on the Commissioners to admit creditors to prove their accounts by some possible means, and these proofs being refused by the Courts will throw this whole class of debts on the United States: their amount will be enormous. Another class of claims which may fall on the United States is still more alarming-those for war-interest. The Treaty has explicitly authorized the Commissioners to judge of all claims of British subjects lost by legal impediments, whether of principal or interest, and they are to determine according to justice, equity, and the Law of Nations. In the correspondence on this subject between the two Governments, the right has been asserted and denied; and it will depend on the Commissioners to say whether war-interest is due or not; and it being to be supposed that the Commissioners will advocate the principles of their respective Governments, the United States are to depend on the chance election of the fifth Commissioner for safety. If it shall be determined that it is due, the mischief will be insufferable. It will not merely be recovered in those cases where the principal is unpaid, nor will it be confined to those cases where it has been lost by actual judgment of a Court, but will extend to all cases of private settlement, where the decision of the Judiciary of the State had previously settled the principle. This may be considered as a groundless apprehension; but if the right to war-interest is settled, the extent cannot be doubted. Everybody will see immediately that where it was stricken off by a Court, it must be revived; and one moment's reflection will convince, that relief must equally be extended to the case of private settlement. The difference, if any, must be created by the party's failure to institute suit, and everybody must admit that this could not be expected where, by previous decision, it was known that he had nothing to expect from the Courts; indeed, without a possibility of benefit, it might have been attended with the loss of costs or a tender of principal, and that part of interest which the Court held due, would have subjected him to costs for all further proceeding. According to the average rate of interest in the United States, the war-interest equals one half the principal, and it has been the univer [H. OF R. sal practice in the State Courts, as it is said, where the debts have been recovered, to refuse interest during the war. Lest it may be doubted whether the effect of the Treaty is to put this dangerous power into the hands of the Commissioners, a reference may be had to the latter end of the number of "Camillus," where it is clearly admitted. It appears, then, that on the subject of the disputes arising under the Treaty of 1783, there is no cause for congratulation. The claims for negroes carried off are abandoned; the posts are to be delivered up, on terms not unusual and dishonorable, but extremely dangerous to the future peace of the United States, and to obtain them in this manner we incur an obligation to pay a sum which probably will not fall short of five millions of dollars, and which may possibly amount to fifteen millions. When it is remembered that these claims commenced with our independence, and that they were the concessions to our infant struggles, what American is there who will not feel the disgrace to our manhood in abandoning them? All must blush at a comparison of the Treaty we obtained with our arms, with that which has been dictated by fear. The next subject which claimed the attention of a negotiator was the injury recently sustained in the commerce of the United States; and on this subject it will be proper to review the circumstances in which the negotiator left this country. The losses sustained had been considered here as outrages of so serious a nature that all parties had concurred in demanding reparation; some had attempted at once to use coercion, and those who approved the mission declared that war must follow a failure. In this situation, where the sense of Government and people was decided, and where the injury was not only intolerable in itself but was likely to be repeated, it seems astonishing that a man could be found who would conclude a Treaty which gives to the United States no compensation, but more astonishing that partisans could be found here who approved his conduct. It may be asserted that no compensation is secured by the Treaty, and that under its operation it is equally probable that none will be received. See the article. It has been doubted, and is, perhaps, very doubtful, whether the Courts of Great Britain are not made the judges of irregular and illegal captures and condemnations, and whether the orders of the King are not admitted as good cause of seizure; but it never has been contended that compensation is promised in any particular case, or that any principles are established by the Treaty which are to govern the Commissioners. In the construction of their powers, insisted on by the advocates of the Treaty, their guides are justice, equity, and the Laws of Nations. Nobody can complain of these principles, if their fair operation was secured; but a moment's attention will show that this was nothing but an evasion of the subject. The Governments themselves have been at issue about what the Law of Nations relative to this subject is, and it will not be denied that the Com H. OF R.] Execution of British Treaty. [APRIL, 1796. missioners are to settle this contested law, as well article the Commissioners will only have to inas to decide on facts. What, then, is to be ex-quire into facts. What constitutes a debt, being pected from the Commissioners? Can it be doubt- too certain to admit of doubt, men of character ed, if there was danger that the political cpinions could nowhere be found who, when deciding on of the Commissioners would not conform to those them, could be brought to take the part of either of the Government, that Great Britain will previ- Government; but this is not the case where politiously ascertain a concurrence in principles which cal opinions are to be the basis of their proceedshe has contended for so long? In the most favor-ings, as in case of spoliations; every day's expeable event, all that can be expected on the part of rience proves that these are copied from those the United States is that their own Commission- with whom you converse, that they are founded ers will be equally zealous, while it is very possi-on views of aggrandizement, and that opposite ble that the sincerity of their Government will sides may be supported with such specious reasons prevent a previous examination into the qualifica- as to leave the partisans without a suspicion of tions of their Commissioners. If this should be insecurity. Commissioners are, therefore, very the event, and nobody will deny that it is the one proper for deciding where principles are not in which ought to be calculated on, what will be the dispute, but where they are, chance must be called situation of the parties? Resort must be had to in to aid them; for it is not in any case to be exa fifth Commissioner, or rather to the chance pected that they will agree. It may be asked, which is to decide his appointment. The United what was to be expected in this case? It may be States, then, in this clear and delicate concern, is answered, that nothing is done, and, therefore, if to submit to the decision of chance for reimburse- we are satisfied of our right, more ought to have ment. There is not only an equal chance of losing been insisted on; principles should have been deall, but it depends on this tribuna! whether the cided by the Treaty itself, not only for guidance principles under which Great Britain has acted of the Commissioners, but for future security. shall not be sanctioned. There being no agreement on principles, there can be no acknowledgment of injury unconnected with the event of reparation. Why is this solemn mockery of our rights? If dice or straws were to determine them, why not make the trial in secret, and let the Treaty depend on their decision? It would have been much more honorable to abandon all claim in that stage of the business on their decision, than to receive as a concession in the Treaty that they may decide, and to prepare for that decision with the solemn forms which appear in this business. The next subject in relation to which this Treaty is to be considered, is the settlement of principles to prevent future misunderstandings. With respect to it the Treaty will be found still less satisfactory. The discussion on the article respecting actual spoliations will fully prove that little can have been done. The principles of compensation, if any had been fixed, would have been a rule for future conduct; and it is no small aggravation of the abandonment, that we are always to be subject to similar injuries. The daily outrages to our commerce and commercial agents are full proofs But there is evidence beyond the wording of that their safety must have been badly provided the article, which has been before said to be doubt-for, or, if provided for, that the execution of the ful, that Great Britain does not mean to submit Treaty is not to be expected. It may safely be principles at all to the decision of these Commis- affirmed that no provision is made in questionable sioners, and that she will insist on their conform-cases, but by a surrender of rights on the part of ing to the principles established by her Courts. the United States; there is reason to fear that It will be remembered that when the time for this has been done in some important cases. The appeal was extended by the King of Great Britain, general list of contraband has been very much enit was supposed to be the mode of making com- larged to our disadvantage, while the books on pensation to the citizens most agreeable to the the subject were divided, and practice was against pride of Great Britain, and that in the review of the concession. It seemed to him to be the effect adjudged cases all principles would be abandoned of the 18th article of the Treaty to concede a which might subject then to compulsory restitu- right under the Law of Nations to capture protion when any tribunal not dependant on that Go-vision vessels going to an enemy's country; and vernment should be established. if so, it is extremely injurious to the United States. If the case is resorted to in which their Courts Although apologists are found for almost everyof Appeals decided against the Messrs. Pattersons, thing which has happened between the United of Baltimore, it will be found that they, so far as States and Great Britain, yet nobody has been reasons are assigned at all, have affirmed princi-hardy enough to advocate this right contended for ples which of all others would be most likely to by her. Camillus declares it not to be maintainbe denied by an impartial tribunal; and it is fair able, and the claim is too extravagant to be foundto conclude, considering this Court as altogether ed on anything but force. To suppose that rapine a political one, that there is no intention to sub-over the whole commerce of a country is to be mit their decision to a review. It has been usual justified, by a declaration of the plunderers that to connect this article with that respecting British they have hopes of reducing an enemy by famine, debts, and to oppose objections to this, by saying is to abandon every principle of law. In the third that both are in the same words; but it will easily section of the 18th article, it appears that confisbe seen that the fitness of the remedy depends cation of vessel and cargo, as under the Law of altogether on the subject-matter. In a consider-Nations, continues to be the penalty of vessels able part of the claims which will arise under that going, with notice, to a place besieged, blockaded, APRIL, 1796.] Execution of British Treaty. [H. OF R. or invested; and it remains to be inquired for have been thought necessary to veil the article, what cases the second section of the same article was provided. By it, it is agreed, "that, to provide against inconveniences and misunderstandings which might arise from the disagreement as to the cases in which provisions and other articles, not generally contraband, become so under the existing Law of Nations, when they so become contraband they shall not be confiscated, but the owners thereof be speedily and completely indemnified," &c. This article, with the other commercial articles, is to expire in two years after the termination of the present European war; and being a war article only, may be said to be made for the war. for the words which were probably only intended for that purpose, will effect the admission of a permanent principle in the Law of Nations; which will bind forever, while the compensation will have expired. But it is said by Camillus, that if the article contains any admission of right, it cannot be said to admit it in the case of going to an enemy's country generally; for that there are other cases to which the compensation may apply. That writer mentions the case of a vessel leaving home for a blockaded port, with notice of the blockade; but he is certainly mistaken. The last section of the article in question would subject such vessels to confiscation as usual; and it reason from the one where notice was given by the besiegers. He conjectured, also, that a vessel going to an investing fleet would be subject to seizure; but brings no authority for saying so; and it is unnecessary to investigate a case which was not in view of the parties, was not likely to happen, and could not give such importance to the article as it seems to claim. In truth, there can be no doubt about the subject of the article; for while it was little understood, the case I have suggested was the avowed object of it; and it has certainly been practised on in the manner I understood it. Indeed, some zealots for the Treaty, not understanding the consequences, treat its operation in this respect as a benefit to the United States. The agreement being apparently for the bene-appears impossible to distinguish such a case in fit of the neutral nation, that is, the United States, is to be considered as made at her solicitation; and it must be agreed, that it contains a concession on her part, that a case may exist where the agreement will operate. What is this case? It may be seen in Mr. JEFFERSON's letter to Mr. Pinckney, remonstrating against the seizure of provision vessels under the orders of the 8th of June, that the Executive of the United States deny that the right of seizure exists in any case but that of going to a place invested, blockaded, or besieged. Great Britain, on her part, has never claimed more than one other, and that has been in the case where she had an expectation of bringing her enemy to peace by famine. Is it not greatly to be apprehended, that when this is the only case which has come into dispute between the two countries, the only one pretended to exist on one side, and denied by the other, that when there is an admission of the kind contained in this article, that it is of the contested case itself? But it is said that there is no admission contained in the article, but only a provision for the case when it does happen. It is a sufficient answer to this, to say, that compensation can only be obtained under the article when there is an admission that the capture was made agreeably to the Law of Nations; that an admission is necessary to the operation of the article. The declaration that it was to prevent inconveniences and misunderstanding, shows that there must have been some important operation with respect to contested cases in view, and that there was some adjustment of principles, so as to make way for its operation. If the reference to the Law of Nations was stricken out, it would be easy to comprehend the article. It would then mean, that during the present war, all inquiries into the legality of captures was to be waived, and that the compensation should be general. It is easy to account for the insertion of that reference; for while the negotiator was willing to put things on that footing, be was unwilling, and was conscious it would be improper to make so unmasked a sacrifice of the rights of France in our lawful trade. These words, then, which are of themselves inconsistent with the context, to reconcile the whole clause. must produce an admission of a right to seize, It may prove very unfortunate that it should This construction renders the article a matter of very serious moment in our connexion with France. In the letter before referred to from Mr. JEFFERSON to Mr. PINCKNEY, it is the avowed opinion of Government, that a toleration of the capture of our provision vessels would give just cause of complaint to France, and that she might justly charge the United States with a covert assistance of her enemy. If the toleration of an act which was apparently an injury to ourselves, would bear this construction, how unquestionable will be the breach of neutrality, when we surrender the right, and stipulate compensation for the surrender. The character of the article in this respect deserves serious inquiry; for the people of the United States are not ready to transfer their alliance from France to Great Britain, and will not submit to it. In all this investigation of the subject in relation to our long standing differences, our recent injuries, or our future connexion, there is nothing but a qualified surrender of the posts to console us for great accumulation of debt, dishonorable surrender of our just rights, and where they were of a nature not to be surrendered, for a no less dishonorable evasion. It will not be understood that I suppose it was in Mr. Jay's power to make his own terms, but I complain of his treating at all on the terms he did. It is said that it was not in his power to extort what he wished, but I complain that he yielded to the extortion of Great Britain. What has he left her to ask, what has he not-surrendered? While professing, as the Treaty does that there were important points of our commerce left for future negotiation, why bind us to continue to Great Britain the fullest share of our commercial privileges? If the Treaty had been the most complete and satisfactory, would it not be necessary to leave something to enforce its execution? What weapons have we which can reach her? The Treaty makes war indispensable, as the only redress of injuries, and how will war from the United States reach Great Britain? It was certainly improper to give up all power of restricting her commerce until the same instrument contained the fullest satisfaction as to our own. It was improper to give up all the power of seizing on the debts of her subjects, for this, when the power of restricting her commerce was bartered for equal privileges, would be the only means of maintaining respect. It is not necessary that weapons of any sort should be used, but it is more dangerous to surrender them. I am no friend to interference in private contracts, and I can truly say, I never was willing to resort to this remedy till all others had been tried; but if there was an impossibility of doing it, the want of the power would immediately be felt. The impolicy and immorality of sequestration have been dwelt on. Contrast it with war, for which it is a substitute, and it will be found in both respects unequal to it. All national remedies are attended with great mischiefs to those who use them, and they must be adopted only on comparison in this respect, and with regard to their effects on the enemy. In this last respect, there seems to be no choice to the United States; they have no other weapon that can reach Great Britain, and I greatly fear that, when this is lost, we are completely disarmed. On the whole, having fully satisfied myself of the obligation to examine the operation of this Treaty, and to weigh well its effects before I give it my aid, I must determine that I see scarcely one interest of the United States promoted by it, while, on the other hand, it has established Great Britain in that dominant situation which she is too apt to make use of. All our powers are sacred trusts, and how it is possible for any gentleman who thinks the execution of this Treaty among them to give it his assent, is to me inconceivable. When Mr. N. sat down Mr. SWIFT said, he wished to make a few remarks on this subject. The Treaty of Anity and Commerce before them, had been negotiated with Great Britain, it had been ratified by the constituted authorities of the United States, and promulgated in the legal form; and yet the House of Representatives were examining its merits, in order to determine whether they will make the necessary appropriations for carrying it into effect. This proceeding seemed to involve a manifest absurdity and contradiction. That it should be said that the Treaty was made by the proper authority, and that it should afterwards be in the power of one branch to determine whether it be good or bad, and to agree or disagree to it, appeared to be an absurdity which could not be ad- I [APRIL, 1796. mitted in our Constitution. He believed, if they attended to the Constiution, a fair construction of it would not admit of such an idea. This subject had, on a former occasion, undergone considerable discussion; but, as he had not spoken upon that occasion, he would now offer a few observations upon the construction of the Constitution. If they attended to the letter of the Constitution, there could be no doubt. But it was said there was a clashing of powers, and that the same objects of jurisdiction were delegated to the Legislature and Executive. He was sensible_that, if the same powers were given to two different bodies, without deciding which was superior, the consequence must be a continual warfare; but if they attended to the subject, they would find the Constitution to be consistent, and all doubt would vanish. It must be admitted that the Treaty power would sometimes occupy the same ground with the Legislative power; one of them must, therefore, be paramount, or their clashing would be irreconcilable. It appeared to him that the Treaty power was superior. He thought the Constitution had established the principle which decided this question. There had always been a doubt of the effect of a Treaty in other Governments, and under the Confederation; but the Constitution, to remove this doubt, had declared that Treaties shall be laws. By pursuing this idea, they would find that the point in dispute was settled. The Constitution had said that the Constitution, laws, and treaties, were laws of the land. Here they had three sources whence they derived their laws. The question was, which was supreme? He knew it had been said, that the acts of Congress must be superior. Some gentlemen had argued that the first in order, and others the last, was superior. It appeared to him that the Constitution had decided which was superior; and by attending to it, there could be no doubt on the subject. The Constitution must be considered as the will of the people; it must be considered as irrepealable by an act of the Legislature. The Constitution is paramount to Treaties or laws. Acts of the Legislature were repealable in all cases, except where contracts were made. With respect to Treaties, it appeared to him that the Constitution had declared them laws, and that of course they must repeal all prior repugnant laws; and being contracts from their own nature, are incapable of being repealed. The consequence is, that a Treaty can repeal an act of Congress; it must do this, or it is not law. They must observe, also, that Treaties with foreign nations cannot be repealed by an act of the Legislature. They might, therefore, lay it down that Treaties are irrepealable, consequently that the department making such a law must be superior to that department of Government which had not the power to make an irrepealable law. It had been said, that Treaties might be repealed by a law; but he believed a little attention to the Law of Nations would convince gentlemen of the contrary. A Treaty being a contract, it would be seen it could not be repealed. This would be to |