APRIL, 1796.]

Execution of British Treaty.

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would not abandon his principles, yet he was ready to meet them on that ground.

deny first principles, and to destroy the efficacy of all Treaties. It had been said that a Treaty cannot repeal prior laws, because laws were made There had been much clamor and misreprésenby the Legislative Department, and Treaties by a tation with respect to the Treaty before them; different department, and that it was necessary but he trusted, in that Committee, the subject for the same power which made the law to repeal would have a fair and ample discussion. He beit. He believed, it would not be found anywhere lieved, if this were the case, we should find suffiasserted, that no law could be repealed, except by cient reasons for adopting it. He ventured to say, the power which made it. He believed that a that the position might be supported that this Constitution might give to a different department Treaty had adjusted a variety of disputes between the power of repealing laws. Was not this, in- the two nations upon reasonable and honorable deed, in their Constitution? Had not the Con- principles. He believed it had secured to them a stitution placed in their hands the power of mak- variety of commercial advantages, with few sacriing laws, and given to Treaties the right of re-fices on their part; at the same time that he was pealing laws? This being admitted, no difficulties convinced that there was not a single article inremain. The Treaty power must be paramount jurious to their dignity or independence as a nabecause supreme. He knew it might be said tion. It had been spoken of as sacrificing our libthere was some impropriety in giving both erty and prostrating every thing great and noble branches the same power; but if gentlemen at- to the ambition of a foreign Power. He believed, tended to the subject, they would see the difficul- on a fair discussion, the reverse would be found to ties give way because the Legislature may ex-be the case. In the examination he intended to ercise this power until the Treaty power is in go into on the subject, he would not go into the exercise; but, the moment the Treaty power minutiae of commerce, as he was no commercial comes into exercise, then the Legislature gives man. way, and the Treaty power being supreme, re- In the first place, it was natural for them to take peals all laws contrary to it. Viewing the sub-into consideration the Treaty with respect to the ject in this point of light, the Treaty before them adjustment of past disputes; those owing to the was the supreme law of the land, and that, as inexecution of the terms of the Treaty of Peace such, they were bound to make all the appropria- were, the taking away of negroes, payment of Brittions necessary to carry it into effect. ish debts, and the detention of the Western posts. The other dispute respected the spoliations on our commerce committed in 1793 and 1794.

With respect to the negroes, very little could be said. It had been observed, that till lately, it had always been allowed that they had a claim on Great Britain on account of those negroes. It Treaty of Peace; and he was surprised that any was enough to look at the article itself in the

He knew that it had been said, that this principle would deprive them of all their power; but gentlemen would find, that when the Treaty power had occupied all the ground it could, there would still be left many objects of jurisdiction, for the Legislative power. But if, on the other hand, they do not admit Treaties to be binding, until ratified by that House, the Treaty power would be at an end, the Legislature might occu-person could ever have entertained an opinion py the whole ground, and the Executive would that they were entitled to compensation. If that be unable to form a Treaty with a foreign na-tended only to prevent their carrying away nearticle was attended to, it would be seen it was intion. All Treaties, of course, would depend on the acts of Congress for their validity, and as such acts would be repealable, there could be no security in a Treaty. He would not pursue this subject farther, but would say a few words with respect to appropriations.

tended. For his own part, when he first read_it, and ever since, he was of the same opinion. He should, therefore, consider the non-payment of British debts and the detention of the Western posts as the only two points in dispute arising from the inexecution of the Treaty of Peace.

groes and property that should be taken in future, and could have no reference to those captured during the war and before the Treaty, the property of which had vested in the captors. That point was so clear as not to admit of any doubt; on any other construction they might claim all the propNotwithstanding the power given to the Legis-erty plundered during the war, which no one prelature to make all appropriations of money; yet, in all cases where the national faith is plighted, a contract is made, or a debt contracted, it becomes an absolute duty to make the necessary appropriation to carry it into effect; for he considered no doctrine so improper, as that, after a debt or contract was entered into, that they should consider the propriety of the contract on the question of discharging the obligation. He, therefore, thought that it was agreed on all hands, that if a contract was constitutionally made, they were bound to carry it into effect, and that they had not the right to check the execution of contracts. But gentlemen had thought proper to go into an inquiry with respect to the merits of the Treaty, in order to discover whether it would be for the public good to carry it into effect. Though he

They observe, that in forming the Treaty now before them, the parties went on general principles. There were two points unsettled, viz: British debts unpaid and the British posts not given up. The only mode of settlement was, that the one country should pay their debts, and the other give up the posts, without deciding who were guilty of the first breach of the Treaty. The surrender of the posts was a complete execution on the part of Great Britain; the payment of the debts equally complete on our part; but as it was

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Execution of British Treaty.

the case that the whole of the debts could not be collected, it was reasonable that the United States should pay for the deficiency; for otherwise the Treaty of Peace would not have been executed. For every one must agree that it they got the posts from the British, and they could only get one-tenth part of their debts, it was not equal on both sides. But Great Britain would have an advantage, because she was to receive interest upon her debt, and they had no allowance made for the detention of the posts. In answer to this, it might be said that there was great difficulty in making any calculation upon the subject; for, if it had been attempted. the British might have been charged with stirring up the Indians to war, which they certainly would have denied. He believed it might be further remarked, that Great Britain had determined never to deliver the posts until the debts were paid. He would ask gentlemen, therefore, whether it was not better to have an accommodation upon the terms which their negotiator had made than go to war? No doubt could be had on the subject.

[APRIL, 1796.

and if satisfaction was not obtained by that means, Commissioners were to be appointed to adjust the amount of the losses which had been sustained, in order to their being paid. But it was objected against these Commissioners that they were to examine into the principles of these captures and spoliations, when we were convinced that there was no necessity for such examination. This was a very extraordinary objection. He had always supposed that most of the captures were against the Law of Nations; but he believed, notwithstanding, that there were some of them in conformity thereto. If the matter had been submitted to the determination of a British court of law alone, we might have had reason to complain; but the Treaty determined that two Commissioners should be chosen by each party, and the fifth by the other four, or if they could not agree, each party was to appoint one, and determine the choice by lot, and that these should have the power of determining over the British courts of law. Could they have expected the British nation should have said, all the captures we have But it had been said by a gentleman from Vir-made are illegal, and we will pay their full amount ginia [Mr. NICHOLAS] that the sum that must be paid for British debts would amount from five to fifteen millions. He did not think the sum would be equal to the smaller sum, though he had no calculation on the subject; but, let the sum be ever so great, if the debts were just, they ought to be paid.

Suppose the negotiator had said he must have a recompense for the posts having been kept contrary to the stipulations of the Treaty of Peace. This would have brought up the question, who violated the Treaty ? And he believed if this inquiry had been gone into, it would not have issued in our favor, for he was sorry to believe we were the first aggressors. For the point being settled that they had not broken the article respecting negroes, it was certain that by laws passed in several States the Treaty was first violated on our part.

This, then, would have been the consequence: It would have appeared that we were the first infractors of the Treaty of Peace, and that we had now no other claim than the posts which the British had kept for their own security. Many gentlemen might think this representation improper in this place; but he believed it to be true, and if true, they ought to make payment of the British debts, however great the loss may be, before they could have any just claim for the surrender of the posts.

It appeared, then, to him. that with respect to the dispute respecting the fulfilment of the Treaty of Peace of 1783, the British had got what they claimed, and we had got what we claimed.

The next point of dispute repected the spoliations on our commerce in 1793 and 1794. The gentleman last up, from Virginia, [Mr. NICHOLAS] had said that there was little prospect of getting any compensation for those spoliations by the provisions of the Treaty. From reading it, he had formed a different idea. In the first place, they had recourse to the British courts of law,

without examination? Surely not. He thought the provision was a just one, and that they stood a fair chance of getting recompense for the spoliations committed upon the property of their merchants. But gentlemen had said that all would depend upon the choice of the fifth Commissioner. He could not think so. For he would not have so unfavorable an opinion of his countrymen or of British subjects as to believe that they will judge only in favor of their own nation. He trusted they would decide upon the broad basis of principle, and not upon the narrow one of country. He acknowledged he could not perceive, and he thought gentlemen should not be so desirous of finding fault with the Treaty as to impute any blame on this article. He thought the adjustment proposed fair and honorable to both nations.

With respect to commerce, he should make few remarks, as, not being a commercial man, he could not be supposed to be so well acquainted with it as some other gentlemen in the Committee. But it appeared to him that Great Britain had granted us extensive commercial advantages, and that we had granted them no new privilege.

Our territory adjoins the British dominions in Canada, and both nations must have experienced great inconveniences if an intercourse could not have been established. The Treaty has settled a commercial intercourse between the United States and Canada, upon such fair and liberal principles, that it will be found highly advantageous to the United States, and it is altogether probable that we shall not only secure the fur trade, but that we shall obtain the whole trade of Canada. a gentleman from Virginia [Mr. MADISON] had objected to this article because it had secured to British subjects the privilege of portages, which he said was a condition clogging the surrendering of the posts. This has no relation to the delivery of the posts, but is a part of the system of commercial intercourse established between the two nations, and which, on inquiry, would be found to

But

With respect to the East Indies, the Treaty gave them very important advantages. It may be said that they possessed the same advantages before the Treaty, in respect to India, that they now possess. But they might then have refused them admission, but now the privilege was secured to them. It had been suggested by the gentleman from Pennsylvania [Mr. SWANWICK] that the East India commerce was of little consequence, upon ground which he thought fallacious. Their commerce to the East Indies was proved beyond doubt to be of great consequence, by the number of ships employed in it; and it was impossible that a commerce which was very lucrative when it was car-vorably to us in this respect. The restraint on ried on upon sufferance, should cease to be so immediately on its being secured to us by Treaty. Yet the gentlernan from Pennsylvania had said the stipulation would prove of no advantage to the United States.

tain articles, he said, were made contraband in the former which were not in the latter, and which would prevent him from giving it his vote. He wished to know wherein this contradiction consisted? There was a difference, it was true, but he could not see with what propriety that difference could be termed a contradiction, because both Treaties were capable of being carried into effect without clashing with each other. To be contradictory, the two Treaties should require contradictory acts to be done by the nation. Suppose the Spanish Treaty had contracted with the United States that no British vessels should enter the Mississippi. and they had contracted in the British Treaty that they should have full liberty to navigate that river, the one Treaty could not be carried into effect without breaking the other; but whilst both could be carried into effect, they could not be deemed contradictory. Thus it would appear that the Treaty had made no alteration with respect to the Laws of Nations, but in certain cases to moderate their rigor and render them more beneficial to us.

Mr. SWIFT said he had made these few remarks on the subject before them as they had weight upon his mind. He did not believe there was any thing in the Treaty injurious to the interests or honor of the United States, but, on the contrary, that there were a number of regulations which would be considerably beneficial to the country, But he did not think they were to be influenced by ingenious arguments on the occasion to provide the Legislative means of carrying the Treaty into effect. It presented itself in a form to them which called for their agreement and adoption with irresistible force. They ought to consider what will be the consequence if they make the necessary appropriations for carrying the Treaty into effect, and what will be the probable result if they refuse.

He would ask what mischief would arise by their adoption of the Treaty before them? Our independence or liberty, said he, would be secure. The British posts, which are of the first consequence to this country, would be given up to us. The value of these posts was incalculable with respect to the settlement of the Western country. Our merchants would have recompense made to them for the spoliations committed upon their property in the West Indies, which, if not made good by the British, must be paid by us. An advantage interesting to commerce, by permission to trade to the East Indies, upon the same terms with their own ships, and no difference in other ports. The consequence must be, that this country will continue to flourish and be happy.

But let us consider, said he, what will be the event, if the Treaty should be rejected. We shall lose the British posts; we shall lose all compensation for spoliations in the West Indies. He would not pretend to say that the British nation would proceed to immediate hostilities against them; but he was of a different opinion from the gentleman from Virginia, [Mr. MADISON] that the only consequence would be a renewal of peaceable negotiation. He was willing to appeal to all the

[APRIL, 1796.

world whether this was likely to be the case. He was of opinion that the Executive of the United States would not proceed to further negotiation. Indeed, where could be found a Minister who would cross the water upon such a business? What would be the feelings of that proud and imperious nation? Would she receive these proceedings with calmness? No; she would treat them with indignation and contempt, and for years to come, he was of opinion, no Treaty could be obtained.

But would the matter stop here? We know very well, said he, from their past conduct, that they would be committing acts which would be unjustifiable against us. We may expect, said he, spoliations upon our ships, and impressments of our seamen. The Indian war would be rekindled on our frontiers. They would be continually provoking us, and he did not think the period far distant, when, from going on from insult, they should come to a state of war.

Some gentlemen have thrown out an idea that Britain would not proceed to war against us, because contrary to her interest; but it was well known from the whole conduct of that nation that they were far from dreading a war with us. At a time when we were discussing commercial regulations, which were to operate upon their fears to engage in a war with us, it was a fact that they were meditating war against this country. Even now, at this time, the capture of vessels, and the impressment of our seamen, not only evidence that they do not fear to make war upon us; but, if the Treaty should be rejected, the continuance of these practices will provoke the retaliation and end in war.

But it had been said that the daily impressment of our seamen was sufficient reason to withhold the appropriations. He would ask gentlemen what compensation they would get for this injury by refusing to execute the Treaty? None. But, if they executed the Treaty, the door would be open to procure redress for any grievance which we had sustained in as effectual a manner as if we rejected the Treaty.

The gentleman from Virginia [Mr. MADISON] had reminded the House that the PRESIDENT had hesitated to sign the Treaty. He should wish to know how he knew the fact? And how he could presume to say, that if the Treaty was now to be ratified, he would refuse to sign it. It seemed extraordinary that that highly respected character should be thus brought into view. He believed that they had the most unequivocal proof that the PRESIDENT wished the Treaty to be carried into effect; and he thought they had no ground upon which to insinuate the contrary.

Mr. S. concluded with observing that they were upon the most important and interesting question that was ever discussed in that House. "He felt a solicitude and anxiety about its determination that he never felt before on any occasion; for he believed on the decision depended peace or war, and the happiness or misery of millions!

When Mr. SWIFT concluded his remarks, the Committee rose, and had leave to sit again.

APRIL, 1796.]

MONDAY, April 18.

Execution of British Treaty.

Mr. BALDWIN presented a bill for fixing the Military Establishment of the United States, which was twice read, and referred to a Committee of the Whole on Tuesday.

Mr. HILLHOUSE presented bills for carrying into effect the Treaties with Spain and with certain Indian tribes, which were twice read, and committed to a Committee of the Whole to-morrow.

KIDNAPPING NEGROES.

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itself, and in noticing the arguments of individual members, nor upon any other part of the proceedings of the Executive relative to the call of the House and his refusal. He only meant to remark, that being perfectly convinced of the propriety of the call itself, of the utility of the information embraced by it, and not being satisfied by the arguments of the PRESIDENT of the propriety of withholding the papers called for, he should have been willing to have suspended all further proceeding respecting the provision for the Treaty until the papers should be laid before the House. He would have firmly placed himself on that ground, and in that position hazarded his responsibility. The extreme sensibility excited on the public mind by the agitation of the Treaty question, he had supposed, would have furnished an irresistible argument in favor of complying with the request of the House, provided no inconvenience would have attended the disclosure; and in his opinion, under all the circumstances of the case, the House would have been completely justified in suspending all further proceeding upon the question of providing for the Treaty until they received that information which they deemed necessary to guide their deliberations. But as the House had thought proper to take a different course, and had proceeded to the consideration of the question, with such lights as they possess, he would explain the motives which would probably finally influsun-ence his vote.

Mr. GALLATIN said the member from the State of Delaware being so much indisposed as not to be able to attend the House, had requested him to represent that the Legislature of that State had taken measures to prevent the future kidnapping of negroes and mulattoes, and that they wished Congress to make provision on the subject. He believed it would be best to bring the business before the House by way of resolution. He therefore proposed one to the following effect:

"Resolved, That the Committee of Commerce and Manufactures be instructed to inquire into the propriety of making effectual provision for preventing the kidnapping of negroes and mulattoes, and of carrying them from their respective States contrary to the laws of the said States."

The resolution was agreed to.

BRITISH SPOLIATIONS.

Mr. W. SMITH presented a petition from dry merchants of Charleston, praying for such assistance on account of the spoliations committed upon their property by the British in the West Indies, by loan or otherwise, as Congress shall judge proper. Referred to the Committee of the Whole on the state of the Union.

Mr. G. said, he should discuss the subject in two points of view. He would first examine the contents of the Treaty itself, and then the probable consequences of refusing or of giving it efficacy.

In examining the contents of the instrument itself, he proposed to go through it article by article, TREATY WITH GREAT BRITAIN. unless the task prescribed to himself should exThe House then resolved itself into a Commit-ceed the bounds usually allowed to members for tee of the Whole on the state of the Union; when the resolution for carrying the British Treaty into effect being under consideration

Mr. GILES said it was much to be regretted that all the information which could throw light upon the subject of discussion should not be before the Committee. A sense of responsibility arising from the peculiarly delicate nature of the question had induced the House to take every step with more than a common degree of caution. Before they proceeded to deliberate upon the expediency or inexpediency of providing for carrying the Treaty into effect, they made a request to the PRESIDENT for the papers which attended the negotiation. This request has been refused; not because the call itself contained any thing unconstitutional; not because the contents of the papers called for were of such a nature as to render the disclosure thereof at this time improper. Neither of these causes being intimated in the Message, but because principles were advocated by individual gentlemen in the course of the argument inducing the call which the PRESIDENT thought not war. ranted by the Constitution. Mr. G. said, he did not propose to animadvert upon the conduct of the Executive in departing from the resolution |

the delivery of their sentiments. He should do this, because he wished to treat the subject with the utmost candor, and to avoid any possible imputation of intending to exhibit the bad and avoid the good parts of the Treaty, if any such there were. He meant, however, to state merely the purport of many of the articles, without any animadversion, and to dwell only upon such as appeared to him the most material.

The first object of the negotiation respected the inexecution of the Treaty of Peace.

The preamble professes to waive the respective complaints and pretensions of the parties as to the inexecution of the former Treaty, and of course establishes a principle, as the basis of the present Treaty, that either both parties were equally culpable or equally blameless, in respect to the inexecution of the Treaty of Peace. He did not mean to remark upon the propriety or impropriety of this admission on the part of the United States. He would observe, however, and he thought with great force, that the stipulations in the present Treaty do not correspond with the principle professed as its basis.

On the part of Great Britain, two articles had been unexecuted: The restoration of certain pro