H. OF R.J Execution of British Treaty. | APRIL, 1796. commanders of privateers, directed them to make and our vessels pay no other or higher duties ingress, in 1777, in the form of their commission to British ports than the vessels of other foreign nations. 2dly. This is a standing regulation in all Commercial Treaties. In our Treaty with France, the Netherlands, Sweden, Prussia, &c., the same thing is covenanted, only in stronger terms; the words are, "no higher or other duties than those of the most favored nations." In our first Treaty with France, we guarantied to that nation all their West India possessions; we are now released from this guarantee. In our late Treaty with Spain, for which appropriations have been voted, without a dissenting voice, we have guarantied to them peace with several powerful tribes of Iadians. It may be said, that this guarantee is reciprocal. It is so, without much reciprocity, as all those Indian tribes, or chiefly all, reside within our boundary. It is said, that Great Britain, by this article, has reserved the right of equalizing the tonnage of American vessels in British ports to that of British vessels in American ports. This right she had prior to the Treaty, and will have, if the Treaty is rejected. Two objections have been made to the 18th article. 1st. That provisions are made contraband in cases not warranted by the Law of Nations; and secondly, that the list of contraband articles is extended beyond that contained in any other Treaty. The first objection is totally unfounded. The article declares that provisions and other articles, not generally contraband, becoming so," according to the existing Laws of Nations," shall not be confiscated, but the owners of such articles shall be fully paid, with a mercantile profit and demurrage. It would, therefore, be a violation of this Treaty, and a good cause of war, should Great Britain declare any article contraband which is not so by the Laws of Nations, though such declaration was attended with an offer of payment. This article has given a privilege, but has restrained no right. If the fleets and armies of France should besiege a British island, and an American merchantman, in attempting to supply the besiegers with provisions, should be captured by a British cruiser, it would not be a cause of confiscation. So far from declaring provisions contraband, when they are not so, the article provides that they shall be paid for when they are clearly contraband. As to the It has been objected that neutral vessels do not second objection, that the list of contraband arti- make free goods. This is a principle of the Law cles are extended beyond that contained in any of Nations, that Great Britain has never given up other Treaty it is to be observed, that war abridges to any nation, and perhaps never will, particularly the rights of commerce, as respects neutral na-in time of war; the principle will remain the same tions. It is therefore of importance to settle by if the Treaty is rejected. Treaty what shall be contraband. Naval stores are the articles to which this objection applies. Vattel, Grotius, Bynkershoek, and all the most approved writers on the Laws of Nations, have declared naval stores contraband. In a Treaty made between Great Britain and Denmark, as late as the year 1780, not only the same words are used respecting naval stores, but horses and soldiers are added; and in a Treaty with Sweden, naval stores, money, horses, and provisions, are made contraband. In almost all our other Commercial Treaties, horses are declared contraband, in this they are free. It is observable, that Con It has been said that the British may defeat the advantages promised in the East India commerce; having agents in the country, they can buy goods cheaper, and can supply the United States on better terms, than the American merchants. Though my learned colleague from Pennsylvania, [Mr. SWANWICK.] is well informed on all mercantile subjects, he certainly has not been correct and candid in this objection. It is a standing chartered regulation of the East India Company, that their goods must be landed in London; there is, then, a double voyage, with all the incidental expense, and foreign duties and tonnage, which will give the American merchants a decided advantage. But, again: Congress may, by law, altogether prohibit the importation of Asiatic goods, in any but American bottoms, without a violation of the Treaty. I consider the East India trade a source of great wealth, as we shall probably supply many of the markets with Asiatic goods. Objections have also been made to the insufficiency of the sum in which commanders of privateers are to give sureties, to wit: £1,500 and £3,000 sterling. This, I believe to be the usual sum. In our Treaty with Sweden no sum is mentioned; and in our Treaty with Holland no security at all is given, but the Captain is to forfeit his commission for misbehavior. I have thus cursorily noticed most of the objections made to the Treaty, and offered some of those reasons which have induced me to believe it for the interest and honor of the country to vote for the resolution on your table. APRIL, 1796.J Execution of British Treaty. [H. Op R. state of infancy and inexperience, at a time much more unfavorable, taking each side of the question into view, than the present. And shall we now hesitate and tamely suffer them to dictate to lest they should be offended and treat us with contempt, for not accepting, as it is said, a more favorable offer than they have given to other nations? Are we not the sole judges; have we not a right to determine for ourselves? And as this is a mere naked stipulation, they can receive no damage, nor, on this early notice, can they charge with deception, or have any right to complain. One thing is certain,; so long as Great Britain finds it for her interest to be pacific, she will adopt measures calculated to preserve peace ; but, when interest dictates the contrary, her invention will not seek a pretext for a different conduct. The history of that nation gives abundant proof of this. Mr. HOLLAND said, he would submit some considerations to the Committee, that, together with those which had been given, would influence his vote upon the resolution on the table; a subject, as had been said by all who advocated the reso-s? And are we bound to accept the Treaty, lution, of the first importance-an issue on which depended peace or war. He said, he considered the question of some importance, particularly as it related to their Constitutional powers; but the conceptions of gentlemen had exaggerated the result of the present question. It was nothing more or less than, would they or would they not now appropriate moneys to carry the British Treaty into effect? He said, he had ever felt a disposition to that purpose; not because the faith of the nation, as had often been said, was pledged; not because they were under moral obligations, as had been contended for-neither of which he could admit; but because a respect was due to the negotiator, to the Senate who advised, and to the PRESIDENT who ratified it; for, it was to be presumed, until the contrary appeared, that they exercised their judgments for the good of the nation. But it was possible the means they have adopted may not produce the end intended; they may have been mistaken. Independent of the Treaty, it has been shown, that their peculiar circumstances have produced all the commercial advantages to the United States, and more than is secured to us by this instrument. The existing causes will produce and continue the effect, without sacrifice or equivalent. I cannot but observe, that all the gentlemen in favor of the Treaty have requested our impartial and candid attention thus, presupposing that they assume to themselves what they urge us to possess. They would do well to examine what part of their conduct, compared with ours, gives them a preference. When he first examined the instrument, he was in hopes that there was something extrinsic existing, which, when communicated to him, would do away the exceptions on the face of the instrument, and therefore he was silent, and suspended his judgment. It was for that purpose he had voted for the papers relative to the negotiation to be laid on the table, in hopes of obtaining further inform- A gentleman from Connecticut, [Mr. HILLation, previous to his being called upon to carry HOUSE,] who went diffusively into the subject, it into effect. But, unfortunately for him, no fur- said he would be impartial, and would take both ther information was to he obtained. The useful sides into view. His language being in the spirit papers, an innocent and humble request, was not and tone of all the others, he would observe upon granted. He was not possessed of any other in- what he had said. He set out by saying, that this formation than could be drawn from the instru- Treaty opens to them a new world; that it will ment, from the writers on that subject, and the give a spur to enterprise, and command all the arguments that had been advanced by the gentle-fur trade. The gentleman from New York, [Mr. men who had advocated the resolution; to the whole of which, he had with candor attended, and with regret informed the Committee, that nothing had been advanced, that had convinced him of the reason, propriety, necessity, or fitness, of the stipulations contained in the instrument. Those gentlemen, instead of reasoning, have endeavored to alarm. They have said that, if we do not carry this Treaty into effect, that we shall be plunged in a war; that Britain is a proud and haughty nation; that they will lay their hands upon all our property, &c. This was an address to our fears and not our reason, and were our fears once on the wreck, there is no knowing the result, or where we should land. But, in this instance, we would not be governed by panic or dread of the power of that haughty nation, as they had been called; but, as a Representative of a free and independent nation, he felt himself perfectly at liberty to exercise his reason, in the most cool and deliberate manner. Not apprehending any danger, the time has been, and now is, that we are perfectly secure in asserting our equal and reciprocal rights with that nation. We have done it in a 4th CoN.-37 WILLIAMS,] not behind him in calculation, says, the whole trade will centre at New York; that it will amazingly facilitate the progress of that city; that, at present, there is an annual increase of popula tion from eight hundred to one thousand houses; and that, in a century, it will be equal to London; and then, with seeming surprise, asks, shall we now arrest its progress by rejecting the Treaty? Those two gentlemen, in their impartial rhapsody, have fancied this Treaty has given them the world in a string; that it contains in itself, and secures to them all possible advantage; and that the rejection would be attended with every possible evil. But all this remains to be proved. Could he view it in this manner, he would be guilty of injustice not to promote it; or should it realize one-tenth of those advantages to Connecticut or New York, he would make a large sacrifice in their favor. But the reasons produced to prove this, or even make it probable, were foreign, and did not go to convince, or at least had no more weight upon his judgment than to prove that this Treaty could have a partial and temporary operation in favor of a few fur-traders; but failed to remove the solid objections that had been stated; that it contained in itself stipulations that in their operation would contravene some of their invaluable privileges; as he also would attempt to show to the Committee, after he had made some further observations on what had been said. He observed there was a material difference in the nature of the property calculated upon by the gentlemen from Connecticut and New York, and the property that he calculated. That of those gentlemen was an estimation of advantages to be gained by extending their trade to the Indian country and elsewhere; that, in its nature, was subject to contingencies, and at most was but a profit in expectancy. But property on which he calculated was national and personal rights realized, and personal property now in actual possession; the rights were to be ceded and the property to be put at hazard, and probably both eventually sacrificed. So that there was no similarity, no competition in the cases. [APRIL, 1796. tish; but they having been mentioned and stipulated for, was to produce the contrary effect. But, he says, the words were intended to guaranty the negroes that then were in possession of the Americans, and not to restore those that were in possession of the British, in America. Mr. H. read the clause, and then asked the Committee what was the plain sense of the words, or the construction that they most naturally bore? Was it to prevent the British from taking off negroes that then were in their possession, belonging to the Americans? or to prevent the British, subsequent to the Treaty, from stealing or by violence taking from the Americans property in their actual possession? If this latter was the intent, the clause was useless; a conduct of that kind would have been an infraction of the Treaty, and of the known rules of common honesty; a violation of the rights of private property, and punishable at common law. Nor would the British negotiator have admitted the section under that conception; he would have considered it an implication upon the common honesty of the officers and citizens of his nation, and must have treated it with contempt. But the gentleman's impartiality has wound him up to believe this to be the true meaning, and to justify it; to be in love with this, and to regard every other article in the present Treaty, however it may appear to others, truly advantageous and admirable. He does not find fault with the provision order, although by the PRESIDENT it was thought most exceptionable; nor does he, with others that have spoken before him, dislike that article where free bottoms do not make free goods, but thinks it in our favor, because we have no fleet. He would reverse the case-that free bottoms should make free goods, because we had no fleet; that if we had a fleet, the provision would be immaterial; that if we had a fleet, we could protect our commerce. For what purpose he was at a loss to know, but a gentleman from Connecticut [Mr. HILLHOUSE] had said that the United States were under no obligations to France, and that he was not bound to respect them more than any other nation; that sinister views and national honor once engaged them in our interest, and that we should have been independent without their assistance. Mr. H. said he would not assert this was impossible, but he would venture to affirm that their fidelity, prowess, and co-operation, greatly facilitated our independence, as would be demonstrated by attending to one case out of many. He alluded to the case of Yorktown, and the surrender of Cornwallis; to say nothing of the land forces, could this have been done but for the blockade occasioned by the French fleet? He hoped that no gentleman would hesitate to admit that they had been greatly useful to us, and that it would be ingratitude not to acknowledge it. For his part he would ever consider this country under peculiar obligations to that spirited and magnanimous nation, and to all others who like them fulfil their trustit is a tribute due to fidelity. Charity forbids our saying that they acted then and now from sinister motives: they assisted in the cause of our freedom; they are now fighting alone in the cause of mankind. But the same gentleman says he will go into the merits of the Treaty, and begins by saying that the insertion of those words relative to the negroes in the Treaty of Peace, in 1783, made no difference as to the construction or operation of that Treaty. If we are to judge from the operation, he is certainly right, for they had hitherto had no effect. But to prove that they were intended to have no operation, the gentleman read But a gentleman from Rhode Island, [Mr. extracts of correspondence which took place be- BOURNE.] lately up, advanced something of a more tween the negotiators, antecedent to the Treaty. serious nature; a doctrine that requires better inwhich was a reference to the Law of Nations, as vestigation; and although the point was deterabridged by Vattel; in which it was said, that a mined by a large majority on a former vcte, yet Treaty leaves all in statu quo that is not expressly as the ground was contested, he would beg leave stipulated for. This doctrine turns upon the gen- to observe upon what fell from him. That gentleman, and proves the reverse of what he expect- tleman had said, that if the Treaty had not comed; for, if nothing had been said respecting the mitted some of the esse.atial interests of the United negroes, they would have remained with the Bri-States, or if it was not unconstitutional, that we The same gentleman has said, that the Spanish Treaty was more exceptionable than the British; but he voted for the appropriation to accommodate his brethren to the Southward, and hoped they would now accommodate him. But the reasons assigned against the Spanish Treaty were of the most curious kind. It was because in that Treaty the United States and His Catholic Majesty are jointly to guaranty against savage hostilities. This he conceives to be a most exceptionable part. Truly it carries in it something formidable, but the complaint might be expected to come from the nation, combined against her who might justly say the combination was unfair. These are the reasons adduced by gentlemen in favor of the resolution. APRIL, 1796.] Execution of Rritish Treaty. [H. or R. This trust being rightfully, explicitly, confidentially, and constitutionally vested in the Representatives of the people in a Legislative capacity, hence, whatever a Senate may have done or recommended, in its capacity as a council to the Executive, in forming a Treaty that embraces any of the specific objects of legislation, they must concur in the grant in a Legislative capacity, or the grant will be invalid, they being a constituent branch of the Legislature. Having advised the contract, now acting in a Legislative capacity, they are truly in a delicate situation; and however wrong the advice they have given may now appear to them, they may not feel at liberty to recede. are under every moral obligation to carry it into venue to be the sinews of Government, and have effect, that the faith of the nation is pledged, that placed the free, unincumbered, and absolute disour national honor is at stake, &c. These asser-posal in the supreme Legislative power, and our tions and propositions are of a high nature, demand Constitution, in an explicit and peculiar manner, a serious consideration, and ought to be maturely has committed it to the immediate Representainvestigated. He, therefore would begin by a de- tives of the people in Congress assembled. nial of the whole. He would not concede that the Executive had power to pledge the faith of the nation; to alienate the personalties, labor, commerce, or real estate of the nation, for the fulfilment of any contract, unless the nation had previously specified the contract; nor would he admit another construction contended for, that the Executive, by Treaty, could repeal any of our Federal statutes. These two positions would place the United States in a precarious situation indeed. In the first instance, it imposed an obligation upon us incompatible with the principles of legislation; and, in the second instance, the whole mass of our Federal statutes existed by the courtesy of the Ex⚫ecutive, and could be abrogated by him in a manner above all other the most odious, by calling to his aid a foreign Power, and by this association destroy the whole of the Legislative acts of our United States. If this be the Constitution, where are the boasted advantages derived from legislation, when the present Executive, or one in future, 16. Policy and good conscience must govern less virtuous, could effectually defeat and swallow up all our Legislative powers? He said, he trusted that the benefits secured by the Constitution did not depend upon so precarious a tenure; but, on the contrary, when statutes were formed by the supreme Legislative power of the Union, that no less a power than was essential to their formation could suspend, alter, or repeal them. Upon this principle he, therefore, would rely, and from it would not recede. However changes may have taken place in the constituent members, and in external circumstances, that may relieve the embarrassment, by death, resignation, or otherwise, the two-thirds of a majority may be reduced to a minority of 14 to those now acting as legislators, not according to the opinions of those in the council of the Executive, or of those who are dead, resigned, or now private men; but, according to the conviction of those who exercise the duty, power, and responsibility of legislators, governed by wisdom and caution. This principle cannot impose on the present Senators an obligation, in Legislative capacity, to vote to execute a bad thing, because they, with others in a council of advisement, once thought it a good thing. In such cases, each member's conscientious opinion, maturely formed, must govern his vote. Upon this construction, it must follow that the House of Representatives have it in their power to keep in their existing form the whole mass of the Federal statutes. This power being rightfully and essentially in each branch of the Legislature, The duty is the same in regard to the respective it is their duty to exercise it on all occasions; for members of the House of Representatives, only them, no less than for private persons, are the two that their situation is less delicate, not being aurules, that they are to do whatever their judgment thorized to relinquish any of their Legislative dictates should be done, and to leave undone what-powers; such a dereliction would be a breach of ever their judgment warns them not to do. If, therefore, the House of Representatives have it in their power to keep in their original existing form all our Federal statutes, they must take an active part in altering them, or they must decline to take an active part in altering them, in which case they will not be changed, according to the dictates of their judgment, corresponding with sound policy. Let us, for a moment, apply this doctrine to the present case. If this Treaty involves in it the labor, personalties, commerce, or real estate of the nation, for the fulfilment of the stipulations therein contained, or if it is contrasted with any of our existing statutes, or if any specific objects constitutionally given to the Legislative power, are to be alienated, the House of Representatives have to determine on the expediency of the mea public trust; nor, having been consulted relative to the grant, are at the most perfect liberty to exercise their discretion and judgment in relation to the fitness or unfitness of the stipulation or grant that is about to be made. And upon this construction is the excellence of the provision; for it relieves the Senators from the embarrassment of being altogether responsible for the consequences resulting from a bad stipulation or grant; each having a discretionary checking and corresponding power. Neither can retort on account of the distresses that may be incident to the grant or stipulation. The contrary construction would not only impose an obligation upon the free agency of the most numerous and more immediate Representatives, but it would also lay a ground of complaint against the PRESIDENT and Senate, in which they The State Conventions, in adopting our Con- must bear all the blame resulting from those misstitutions, and all nations, have considered the re-carriages. This would soon put an end to good sure. understanding and harmony with the two branches of Government. The contagion would catch the citizens; the immediate Representatives of the people, very justly, to exonerate themselves, would fix all the evils arising from those stipulations, upon the Executive, with many more that had little relation to them; the consequence would be universal declamation and discontent, and a final want of confidence, resulting in a dissolution of Government. The Constitution has made the Legislature the only and sole organ to alienate the public revenue. The same principle is incident to the Legislative power of all Governments, all foreign Powers are bound to admit this, Great Britain, in a peculiar manner, is bound to respect this deposite of power, because the same thing exists in her system. The Executive conductor of the United States has only an advisory duty upon the subject of alienations of the public revenue, or, indeed, on any other subject of Legislative operation. If he does not perform this advisory duty, the act of the Legislature is valid. If he does perform it, the only effect it can have is to increase the quorum which is requisite; two-thirds of the two Houses grant the money-that is to say, the Legislature does this or any other act of legislation, by the designated quorum, without the consent of the Executive, and even against his judgment and advice. Nor does any evil result from this doctrine, as applied to the present case; for, if good reasons have operated to induce the Executive to make the stipulation, the same reasons, with the inconveniency of not completing it, will be more likely to induce the Legislature to make the grant either in America or in England. [APRIL, 1796. pursued, with respect to her own security? Most certainly, yes. Then why is the alarm so loudly sounded by all the advocates of the resolution, and friends of the Treaty? If she means to be friendly, the trade will go on; she will repair the damages we have unjustly sustained; this will be done, if it corresponds with her interest, and further explanations and negotiations will be admitted. If she is disposed to be hostile, I would resent her disposition, but I never could find a greater aptitude to meet her on that ground than the present. Let her disposition be what it may, it shall not influence my judgment on the present occasion; but I shall conduct myself in that manner most likely to perpetuate independence. But with respect to the Treaty, I shall not trespass upon the Committee by going into detail, as so many gentlemen had examined its exceptions; but would wish to be indulged in observing on one part that had been but slightly touched on by a worthy member from Virginia, [Mr. GILES,] the operation of which might be attended with more melancholy effects, particularly upon the citizens and State he had the honor to represent, than all the other exceptionable clauses contained in the instrument. He meant the 9th article; and that it might be the better understood, he would read it, as he conceived this a matter of the greatest consequence; and, although it had been previously read, he hoped the Committee would indulge him with bringing that clause once more immediately into their view. Mr. H. read the 9th article, which is a provision enabling aliens to hold lands in this country. He said this provision was contrary to the common Law of Nations, and ever thought dangerous and impolitic. Great Britain, in particular, never admitted the principle. It was there too well understood, by common consent, that it was never thought necessary to prohibit it by statute; and for what purpose shall the United States admit the principle? Is it because she should be less on her guard than other nations? Is it because her extent of country makes her more secure? Or is it because the realized property and the privileges attached in a Republic, are less worth preserving than in a Monarchy? So much on the general objection; but he had a peculiar and serious objection to the The nation, however, by this organ, can effect- clause, as it might operate very oppressively upon ually give the money, make the war, or regulate the citizens of the State of North Carolina. Lord the commerce. It is a peculiar felicity in this Grenville, previous to the Revolution, was legaldelicate and interesting debate, concerning which ly possessed of a deed and absolute right in fee all express a desire to preserve the honor and hap- simple, held as a subject under the Crown of Great piness of the country, that in all respects involv- Britain, to a tract of land within the then Proed in it, Great Britain and America are similarly vince of North Carolina, beginning at the sea circumstanced. Under this view, what pretext shore, north latitude thirty-six degrees on the Vircan Great Britain have to be dissatisfied with us, ginia line, extending south one degree, and west if we reject this Treaty? It must be acknow- to the farthest extent of the limits of the charterledged by her, that it was contemplated for mutu-ed rights of that Province, which was bounded by al advantage; and if, on a revision, the reciprocity is doubted, and this fairly made known antecedent to an exchange of property, will not the good sense and honor of that nation commend us for our attachment to our national interest? Is it not the line of conduct that she has invariably The language of the Constitution, in regard to granting money, is explicit, comprehensive, and unqualified; so it is concerning war; so it is concerning commerce. It is not silent so as to justify an idea that the Executive may grant the money, make the war, or regulate the trade. The Constitution is clear and full on this point, giving the power over them to a compound body, of which the PRESIDENT is no part; to which he stands in the relation of an adviser to a body which is the chief organ of all free Governments-the Legislature. the Mississippi. That the Earl Grenville had opened an office for the sale of said land, and had parcelled it out in small tracts to the citizens, and had conveyed to them by deed of conveyance, reserving a certain rent, with a clause of entry in failure of pay. |