Remarks on the Treaty of Amity Commerce and Navigation
Remarks on the Treaty of Amity Commerce and Navigation
Article I: This being simply a declaration of peace and friendship is liable to no observation.
Article II: This article, by fixing a precise period for the evacuation of the posts namely the first of June 1796 secures that important event as far as a stipulation can do it.
It is objected that the period is too remote, and that reasoning from the past there can be no reliance upon a fulfilment at the time.
It were desireable that a shorter period could have been limited, not only because it is interesting to repossess the posts as early as possible but because the chances of interfering events which may create impediments are multiplied in proportion to the delay.
But the reasons assigned for it as contained in one of Mr Jay's letters, though not satisfactory with regard to us are not without force with regard to the other party--and it may be added to them that the British would naturaly wish time to establish counter posts within their territories and that some time would really be requisite to prepare without prejudice to their Traders for the future course of their business.
Yet whatever may be the degree of forces which may be conceded to the reasons assigned for the delay, this circumstance does not appear to me a good ground of suspicion, that the postponement is with a secret intent to evade the surrender. I rather resolve its principal motive into the desire of preserving the friendship & confidence of the Indians within our territory by the gradual preparation of their minds for the event, and also by giving them sufficient time to close their quarrel with us leaving things on a footing which it was imagined would incline us to better terms of peace than if we were previously in actual possession of the posts.
The extreme profligacy and contempt of appearances--which are implied in the supposition of an intention to evade the surrender of the posts, after a secondand a precise stipulation, in a Treaty which adjusts all the points of difference in a former Treaty--are so palpable that the supposition cannot be indulged without such a distrust of the faith of the party as would forbid an attempt to treat with him. For after all, some future period must have been fixed--and that as well as a more remote one might have been evaded.
Besides, that it appears to be extremely probable that the course of events will fortify the disposition to observe good faith in these particulars.
I therefore venture to count with confidence on the surrender of the posts, according to the stipulation, if the Treaty is mutually ratified. And this is in my view a matter of signal importance. Besides opening to us the Indian Trade, which is of some value, relieving us effectually from the expences and mischiefs of Indian Wars in that quarter and giving a secure course to our Western settlements --it breaks up the great & dangerous project of Great Britain to confine us to the ohio & to possess the intermediate Country. The different ways in which it will have this effect will readily occur. The firm possession by the General Government of the Western posts may be considered as a very strong link of connection between the Atlantic and Western Country; to maintain which, with the necessary controuls, is the knotty point of our affairs as well as a primary object of our policy. Moreover it is to be remarked that the conditional ratification of the Treaty as advised by the Senate will occasion delays which would render it scarcely possible to effect the surrender sooner than is stipulated, in consequence of the Treaty; and at any rate the event could only be retarded, not accelerated by not closing with the Treaty as it stands.
The reservations of this article with respect to the “precin[c]ts and jurisdiction” of the posts are criticised on account of the vagueness of the terms. But this criticism does not appear very well founded. It would have been difficult to have hit upon a definition which would have suited all the circumstances of the present occupation, and as any construction, which is not entirely absurd, will leave full latitude for progress of settlement during the short period of the further detention of the posts--a definition was not a matter of moment. In my opinion the true construction will be, that those places where there are settlements & establishments in the vicinty of the Posts over which a jurisdiction in fact has been exercised since the peace are to be understood to be comprehended within the terms “precin[c]ts & jurisdictions of the posts” and that where there have been no settlements gun shot must be the rule.
Article III: This article appears on the whole to be advantageous to the UStates. Our Indian Trade to which it gives the British acess is unimportant. Theirs to which we acquire access is important and it is believed by persons conversant in the business that our local situation will enable us to maintain the competition within the British territories on favourable terms. As to other Trade, the advantage will be still more clearly with us. The superior facilities of Transportation on our side will enable us to supply their possessions with European & East India goods as well as domestic articles far more extensively than they can us.
It is objected to this article that the clauses which regard “the admission of British vessels from the sea into the Rivers of the U States &c” and the mutual navigation of the mississippi will interfere with the regulations which the U States may hereafter think fit to establish in order to bring Great Britain to better terms of commerce &c.
But the ground of this objection appears to be erroneous. The main and affirmative object of the first clause of the article is to secure an intercourse between the territories situated on each side of the boundary line, by landpassage and inland navigation with a right to each for the purpose of this inland navigation “to navigate all the lakes Rivers and waters thereof.” But lest on the one hand this should be construed to admit by implication a communication from the sea with Canada or Nova scotia or through those countries with the sea, (a thing not now permitted) it is declared negatively that this shall not be understood to be implied--and lest on the other hand the same provision should be construed to admit by implication that British vessels coming from the sea might go beyond the highest ports of entry, to which our laws now restrict foreign vessels, it is in like manner declared negatively that this shall not be understood to be implied. But this negative of an implication which might have arisen from the principal provision can by no just rules of reasoning or construction be turned into a grant of a positive privilege; especially being foreign to the object of that principal provision--that is to say, into the grant of a right to navigate by sea to & from our sea ports; the subject of the main provision being land passage & inland navigation .* The absurdity of such a provision becomes the more manifest by considering that the trade to be regulated by the main provision concerns only that portion of the British territories which is on the continent of America--while the right pretended to be grafted upon it would extend to all the other British territories in whatever part of the world. With as much reason and on the same principle might we contend under the article for an access by sea to any possessions which G Britain might have or acquire on the opposite coast of our Continent.
* These terms have no precise legal sense. But they are always used as contradistinguished from Sea Navigation, or Navigation to & from the sea. I should say then that inland navigation begins where navigation from the sea ends--that navigation from the sea ends at our ports of entry from the sea, where inland navigation begins. This construction is strengthened by the reflection that according to the laws of G B & the UStates Rivers as far as the tide flows are arms of the sea.
The clause with regard to the Mississippi merely admits as far as depends upon us a positive right to navigate that River to any port or place which the British may have bordering upon it and a revocable right to navigate it to any port or place which we may have bordering upon it. They may use it to come to any such lastmentioned port or place in as ample a manner as they may go to an Atlantic port; but not in a more ample manner; consequently a prohibition to come to an Atlantic port will annihilate the condition of permission to go to a port on the Mississippi.
We may therefore freely as to any thing in this article prohibit British vessels from coming by sea from any part of the world to the U States.
The latter part of the clause gives permission to bring and carry into the respective territories mentioned in the article in manner aforesaid, that is to say,by land passage & inland navigation, all such goods & merchandize whose importation shall not be intirely prohibited, paying such duties only as the respective subjects & citizens are liable to pay. But we may intirely prohibit any articles we please of the produce or manufacture of Great Britain. And we may prohibit the exportation to Great Britain of any articles whatsoever. Thus will there be ample room to make regulations of the kind alluded to, notwithstanding any thing in this article.
Article IV: This article, as far as it is operative, is right. A survey is a necessary previous step to determine whether the former Treaty can be literally executed, and if not the adjustment of the matter is referred to future negotiation, which leaves it in the power of both parties to come to such an agreement as they deem reasonable & conformable to the true intent of the former Treaty.
Article V: This article also provides a good mode of settling the controverted point.
Article VI: It was ever my opinion, that no adjustment of the controversy on the inexecution of the former Treaty was ever likely to be made, which would not embrace an indemnification for losses sustained in consequence of legal impediments to the recovery of debts; and indeed it always appeared to me just that an indemnification should be embraced.
The article of the former Treaty on this head was as I conceive nothing more than the formal sanction of a doctrine which makes part of the modern law or usage of Nations. The confiscation of private debts in time of War is reprobated by the most approved writers on the laws of Nations--and by the negative practice of civilized nations during the present century. The free recovery of them therefore on the return of peace, was a matter of course and ought not to have been impeded had there been no article.
Admitting that the first breaches of the Treaty were committed as we alleged by Great Britiain, still it would not follow that the impediments which the laws of certian States opposed to the recovery of debts were justifiable.
First because it manifestly lay with the general Government to which belonged the powers of Treaty war and peace to decide whether in consequence of the breaches of Treaty on the other part it would elect to consider as void the whole, or any article of the Treaty. The General Government never did so decide but on the contrary repeatedly and wisely manifested a different dispoition--wisely because it was inexpedient to set afloat so imporatnt a Treaty which terminated the question of the Revolution with the Government with which we had contended and to widen a breach which might at an early stage involve us anew in war. Consequently, the only competent authority having declined to pronounce, it was a usurpation in any state to take upon itself the business of retaliation.
Secondly Because the interruption of the recovery of Debts is contrary (as before observed) to the modern usage of nations--immoral in itself, against the opinions of the generality of enlightened men and disreputable to the Nation which has recourse to it. The practice of most of the States is in conformity with & is a comment upon this doctrine.
But the question who committed the first breach of the Treaty, if candidly examined, does not admit of as clear a solution in our favour as many imagine or assert.
Two breaches of Treaty are imputed to Great Britain one respecting the carrying away of the negroes and the other respecting the detention of the Posts.
As to the first Great Britain has much to say with Truth & Justice.
Her proceedings in seducing away our negroes during the War were to the last degree infamous--and form an indelible stain in her annals.
But having done it, it would have been still more infamous to have surrendered them to their Masters.
The reply to this may be that they ought not then to have stipulated it. This is just; but still the inquiry is whether they have stipulated it; and here the odiousness of the thing, as applied to them, is an argument of weight against such a construction of general expressions in the Treaty as would imply the obligation of restitution. Odious things are not favoured in the interpretation of Treaties and though the restoration of property is a favoured thing yet the surrender of persons to slavery is an odious thing speaking in the language of the laws of nations.
The words of the article are that his Britannic Majesty shall with all convenient speed and without causing any destruction or carrying away any negroes or other property of the American Inhabitants withdraw all his armies &c.
There are two constructions of this article one that the evacuation should be made without depredation that is without causing any destruction or carrying away any property, which continued to be such (having undergone no change by the laws of War) at the time of the evacuation--the other that there was to be besides a forbearance to destroy or carry away a positive restitution of all property taken in the War, and at the time of the evacuation which then existed in kind.
In favour of the last construction is the most obvious sense of the words; and as it applies to the negroes merely as an article of property, the justice of restoring what had been taken away in many instances by unwarrantable means.
Against it & in favour of the first construction are these considerations--
1 That the expressions are negroes and other property, which puts negroes cows horses & all other articles of property on the same footing, & considers them, if at all liable, equally liable to restitution and all as having equally the common quality of property of the American inhabitants.
Could any thing be considered as property of the American inhabitants at the time of the Treaty and in contemplation of the Treaty which by the ordinary rules of the laws of War had previously become the absolute property of the Captors? Is there any thing which exempts negroes more than other articles of personal property from capture & confiscation as booty? If there is not, why should negroes have been claimed under this article more than the vessels which had been captured and condemned? Is that a probable sense of the Treaty which would require such a restitution?
2 If negroes were objects of capture in War, the Captor might proclaim their liberty when in his possession. If once declared free, could the grant be recalled? Could the British Government stipulate the surrender of men made free to slavery? Is it natural to put such a construction upon general words if they will bear another? Is not this as it regards the rights of humanity an odious sense?
3 The Treaty will bear another construction, that which is put upon it by the British, a provision for greater caution against depredation or the carrying away of property not changed by the laws of War. It is observable in confirmation of this, that there is not stipulation to restore, but negatively not to carry away; whereas immediately after, in the same article, there follows a clause which stipulates that “archives records &c.” shall be restored and delivered up. This different mode of expression seems to denote a different sense in the two cases.
Let it be observed that I do not mean to advocate this sense in preference to the other. I have at different times viewed the matter in different lights and our ablest lawyers differ concerning it. I even entertain a clear opinion that the article was intended to operate in our sense of it. But still this does not obviate the doubt as to its true legal signification.
All I mean to say is, that there is really a well founded doubt as to the true legal construction; and in such a case the acting of the other party on a construction different from ours could not be deemed such a clear manifest breach of Treaty as to justify retaliation. The point was merely matter of amicable discussion and negotiation. If this was a breach of the Treaty it is necessary to note that it was committed in 1783.
The affair of the posts is more embarrassing.
It is necessary in the first place to settle when it became the duty of the British to surrender them. The stipulation is that it shall be done “with all convenient speed.” But from which of the Treaties are we to date, the provisional or thedefinitive?
The principle of this question is a point of great difficulty not settled either by the opinions of writers or by the practice of nations.
I remember that I contended in Congress shortly after the arrival of theprovisional Treaty, and when it was known that preliminaries had been signed between France & England, that the execution of the Treaty was to date from this epoch, and on this position I grounded a motion to recommend to the States a compliance with the [7th] article.
But on the vote upon this motion I was left alone, and Congress did not act upon the subject till after the arrival of the definitive Treaty, that is 1784.
This amounts to a construction by our Government that the execution was to date from the definitive Treaty.
Lord Grenville contends with Mr. Jay for the same position, and urges consequently that it was not till after the notice of the ratification by us in England or in other words the exchange of ratifications there that it could be deemed incumbent upon them to give orders for the evacuation of the posts; which orders could not well have been given before May nor have arrived in Canada till July.
After the course pursued by us as already stated it is difficult to see what can be objected to this construction. It is true the Atlantic posts were evacuated shortly after the provisional treaty; but it may be justly observed upon this, that it was done for mutual convenience and in the spirit of conciliation, not on the score of strict obligation; that however inconsistent with the spirit of an act for restoring peace, it might have been to have detained places in the heart of our settled country being besides the capitals of the states in which they were, there was intire liberty to pursue a stricter rule as to the Western posts, some delay concerning which could not have been of material inconvenience to us; and that it was reasonable to pursue the strict rule here to see what course the execution of the Treaty was likely to take on our part.
But our dilemma is this, that if the delay of orders for evacuating the posts till after the exchange of Ratifications of the definitive treaty was a breach of the Treaty as contended for by Mr. Jefferson, the delay of acting upon the fifth article till after the ratification of the definitive Treaty in this country was equally a breach of the Treaty on our part--and a prior at least a cotemporary breach.
Let us now see how in point of time the breaches will stand on our part. In this I shall not aim at an accurate enumeration but shall select particular instances.
I An Act of New York for granting a more effectual relief in cases of certain Trespasses passed the 17 of March 1783.
This act takes away from any person within the British lines who had occcupied injured or destroyed the property real or personal of an inhabitant without the lines the plea of a military order for so-doing; consequently the justifications which he might derive from the laws and usages of war--in contravention of the Treaty of peace.
It is true it preceded for a short time the arrival of the provisional Treaty in this Country; but it is notorious that it was in expectation & contemplation of the event.
This circumstance of priority of time leads Mr. Jefferson to put this act out of the Question But in fair reasoning this is hardly admissible.
It continued to have in fact an extensive operation from the time of the evacuation of the City of New York till the repeal of the exceptionable clause by an act of the 4th of April 1787.
It hardly appears as satisfactory answer to this to say as Mr Jefferson has done, that the Courts did not sanction the principle of the Act; that in one instance, the case of Rutgers & Waddington, the Mayors Court overruled it.
The fact is that from the very express terms of the Act a general opinion was entertained embracing almost our whole bar as well as the public that it was useless to attempt a defence--and accordingly many suits were brought and many judgments given without the point being regularly raised and many compromises were made and large sums paid under the despair of a successful defence. I was for a long time the only practicer who pursued a different course and opposed the Treaty to the Act--and though I was never overruled in the Supreme Court, I never got my point established there. I effected many easy compromises to my clients afraid myself of the event in the Supreme Court--& produced delays till the exceptionable part of the Act was repealed. The Supreme Court frequently in a studied manner evaded the main question and turned their decision upon the forms of pleading.
Tis, perhaps, enough for the other party to say that here was a positive law of a State, unrepealed and acted upon so as in fact to defeat in a material degree the operation of the Treaty. The injury was suffered and there ought never to have existed so critical a conflict between the Treaty & the statute law of a State.
If the operation of this law was a breach of the Treaty it was a breach from the first moment of the Ratification of the provisional articles till the 4th of April 1787. Nothing could be anterior to it.
Another Act of the 4th of May 1784 provided a mode by which the foregoing act should have effect upon the estates of absentees, which in several instances produced judgments without opportunity of defence. It is to be observed that the British Commander in Chief early remonstrated against this act as inconsistent with the Treaty & yet it continued unrepealed.
And the Act of New York of the 12th of May 1784 in the strongest & most express terms confirms all confiscations before made, notwithstanding any errors in the proceedings & takes away the writ of error upon any judgment before rendered.
This is substantially a new confiscation. If the jugments before rendered were from error invalid, the confiscation were nullities--to take away the writ of error which was the mode of annulling them was equivalent to making new confiscations. This act was an undoubted breach of the Treaty & is prior to the time when the breach by the non surrender of the posts can be dated.
An Act of South Carolina March 26. 1784 suspends the recovery of British Debts for 9 Months & then allows them to be recovered in four yearly installments.
This also was a plain contravention of the Treaty and dates before the breach by non surrender of the posts.
Virginia in June 1784 resolved that her Courts should be opened to British suits as soon as reparation should be made with regard to the negroes and posts or otherwise as soon as congress should judge it indispensably necessary.
If her Courts were before closed, which this resolution admits, it was in consequence of acts passed prior to the Treaty which her courts had deemed obligatory upon them after the Treaty--& it follows that there was a continual violation of the Treaty from its ratification till 1787 when Virginia repealed all acts repugnant to the Treaty.
Taking therefore the carrying away of the negroes to be a breach of Treaty tis a very moot point whether some of the laws of the States did not produce antecedent breaches.
Putting that out of the question and taking the definitive Treaty, according to the construction put upon it by our own Conduct, as the act from which the execution was to date, and allowing reasonable time for the ratification to be notified & exchanged--it is certain that the first breaches were committed by us.
The use of these remarks is to shew that a candid and unprejudiced view of the subject tends to moderate the sanguine pretensions which have been built on the suggestion of the first breach having been committed by Great Britain and to manifest the reasonableness of having stipulated compensation in the cases of the breaches made by us.
Indeed admitting the first breaches by Great Britain I do not see that it would affect the conclusion that compensation was to be made.
The following seems to be the fair view of the subject.
Mutual infractions of the Treaty had taken place. Either our infractions were to be considered as the equivalents for those of Great Britain, and then having enjoyed the equivalents we had no right to ask reparation in addition--or if we preferred reparation for the infractions by Great Britain we were to renounce the equivalents for them.
Then it will follow, that the surrender of the posts on their side would draw with it a right of compensation for the losses suffered by impediments to the recovery of the Debts on our side.
In other words the Treaty was to remain mutually broken and unexecuted in certain points or it was to be reinstated by mutual performance. Performance as to the article of the debts is compensation for the losses sustained by impediments to the Recovery & the removal of those impediments.
In fine, it would in my judgment independent of the Treaty have been dishonorable and unjust in us to have interfered with the recovery of private debts--it was dishonorable & unjust to have interfered with them on the grounds which were the pretexts & it is honorable & just to make compensation. This reputation of the Country as well as its peace required the stipulation.
It is not perceived that there is any thing exceptionable in the mode of determ[in]ing and adjusting the compensations to be made in the cases in which this may be deemed proper--or that any better mode could be substituted--the article appears in general sufficiently well guarded.
Article VII: This article appears to me as well arranged as could have been expected.
It is objected to as two [sic] dilatory but no reasonable substitute has occurred.
The UStates could not have demanded a gross sum because they had no adequate standard by which to ascertain what was proper. They might have asked too much or too little.
Great Britain for the same re[a]son could not have been expected to agree to the demand of a gross sum. This is not the way that nations deal with each other, unless where one is in a situation to dictate to the other. This was not our situation.
Indemnification on equitable principles was all that could be expected. This necessarily supposes a mode of ascertaining with due investigation the reallosses.
But one of three modes can well be thought of; to refer the adjustment to the Tribunals of the UStates, to refer it to the Tribunals of G Britain or to submit it to referrees mutually appointed.
Either of the first two modes was inadmissible because liable to partiality. The Tribunals of the U States could never get hold of the cases without inviting intirely the course of similar transactions. Those of Great Britain will now in many cases decide in the first instance, but no American would choose to leave the ultimate decision there. Referrees have therefore a comprehensive power to do justice in all cases in which it could not be obtained in the ordinary course.
But it is said twere better the Commissioners should have decided in the first instance without reference to the Courts for the greater dispatch.
This might have had a contrary tendency to that of promoting dispatch. Appeals in a great number of cases will have gone forward--and it was better they should have their course than be arrested to be turned over to the Referrees. Tis probable from the expedition of Admiralty proceedings that the Courts will have done their part by the time the referrees are ready to begin.
It is observed too that this article follows closely the provision with regard to the debts and it was natural this should be the case.
We certainly must prefer that our courts of Justice should have a free course in the affair of the Debts, in all the cases in which it is now practicable.
The latter clause of this article respects the prizes made within our territorial Jurisdiction or by privateers originally fitted out in our ports, is confined to the cases in which the prizes having been brought within our ports we forebore to make restitution, and is purely in execution of the opinion of the President conveyed in the letter from Mr. Jefferson which is annexed to the Treaty & which by being annexed and referred to becomes a part of this article.
Agreeing then with the laws of Nations, with the obligations which our Treaties with other Nations impose upon us in respect to them and carrying into effect the expectation previously given by the President it is liable to no just objection.
Article VIII: This article seems in all respects unexceptionable.
Article IX: This article from having been misunderstood caused at first much uneasiness. It was considered as giving a permanent reciprocal right to the Citizens of the two Countries indefinitely to acquire and hold lands in either. But this is manifestly an error, which having been pointed out the uneasiness has subsided.
It is expressly confined to those holding lands prior to the Treaty, (the words are those “who now hold lands”) and makes no alteration in the antecedent state of things which can be at all material in a national light.
It is not certain that it makes any other alteration than that those who now lawfully hold lands may convey those lands to aliens.
It may however give rise to this question, whether aliens who now hold lands, by a defeasible title acquired since the Treaty of peace, in States whose laws do not authorise it, are not protected in their acquisitions? But however this question may be decided it is of little importance; for in fact the alien laws are never enforced nor likely to be so and the quantity of lands so holden which are dayly changing owners is not considerable enough to have any consequence in a national scale.
An objection seems to have been raised in the Senate against the constitutionality of this article as though it entrenched upon the authorities of the States.
But this objection is inadmissible. It would totally subvert the power of making Treaties. There can hardly be made a Treaty which does not make some alteration in the existing laws which does not, as to its objects, controul the legislative authority--and from the nature of our constitution this must apply to the State laws and legislatures as well as to those of the Union.
A Treaty cannot be made which alters the constitutions of the country or which infringes any express exceptions to the power in the constitution of the United States. But it is difficult to assign any other bounds to the power. It may certainly alter the provisions of the statute and municipal laws & modify the rules of property.
There are stipulations in our Treaty of peace with G Britain analogous to the one under consideration--the validity of which has never been disputed.
Of this kind is that, which stipulates that all persons who have any interest in confiscated lands either by debts marriage settlements or otherwise shall meet with no lawful impediment in the prosecution of their just rights--and that which stipulates that there shall be no future confiscations.
But a much stronger case is found in the 11th article of our Treaty of Amity & Commerce with France which is generally understood and practiced upon, as removing in toto the disability of alienism from all Frenchmen, so far as respects acquiring and holding lands and certainly gives them important rights with regard to lands which they could not have but for this Treaty on account of their alienism.
Indeed the protection of aliens in the enjoyment of the landed property they hold is a familiar article in Treaties of Peace; so also stipulations as to rights in lands more or less qualified are common in Treaties of Commerce. And the power of making Treaties is plenary under our present constitution, more so than it was under the confederation, where it has been deemed adequate to do much more in this respect than has been done by the Treaty in question.
In fine the objection to the constitutionality of this article is manifestly futile.
Article X: In my opinion this article is nothing more than an affirmance of the modern law and usage of civilized nations and is valuable as a check upon a measure which if it could ever take place would disgrace the Government & the Country & injure its true interests.
The general proposition of Writers on the laws of Nations is that all enemy's property wherever found is liable to seizure and confiscation, but reason pronounces that this is with the exception of all such property as exists in the faith of the laws of your own country. Such are the several kinds of property which are protected by this article.
And though in remoter periods the exception may not have been duly observed; yet the spirit of Commerce diffusing more just ideas has been giving strength to it for a century past--and a negative usage among nations, according with the opinions of modern Writers, authorises the considering the exception as established.
If there have been deviations from that usage in the actual War of Europe they form no just objection to this reasoning. For this war has violated in different instances most of the most sacred laws of Nations.
It is said that the power which is given up by this article was the only effectual check upon G Britain. I answer 1st that there existed before no rightful or moralpower, & notwithstanding the Treaty there will still exist a power, without right or morality. The Treaty only adds the sanction of an express to what was before an implied pledge of the public faith. The one may be still violated as well as the other--and the only use of the article will be to give prudent and good men an additional argument against an act of national inequity.
II That the fear of the exercise of this power has not hitherto appeared to be a Check upon Great Britain and the menace of its exercise can never take place without doing ourselves more harm than good by tarnishing our honor and shaking our credit.
III That War itself acts as a virtual sequestration of property by interrupting the course of remittances; and the Government by interfering does little more than render itself liable for the delapidations of vicious individuals who take advantage of the circumstance; since Treaties of Peace, unless one party is totally prostrate, will never fail to reinstate private debts.
What benefit did those states derive which had recourse to the expedient of sequestrations in our War? How much wiser & less embarrassing to themselves was the policy of those States who refrained from it? And why did they refrain from it but because they thought it unwarrantable and impolitic?
I have not the state laws by me and cannot speak with certainty from memory; but as far as I recollect, a majority of the states including the most commercial abstained from the sequestration or confiscation of private debts, except in the case of convicted or attainted criminals--which may be regarded as one indication of the general opinion. For if ever a War warranted such a measure it was ourRevolution War.
I conclude from the whole, that no honest or truly politic objection lies against this article. And that a willingness to enter into the stipulation is reputable to the Country while an unwillingness would be disreputable to it.
These ten are all the permanent articles. They close the various matters of controversy with G Britain and upon the whole they close them reasonably. Compensation for the negroes, if not a point of doubtful right, is certainly a point of no great moment. It involves no principle of future operation, It terminates in itself--and the actual pecuniary value of the object is in a national sense inconsiderable & insignificant.
The remaining articles are temporary. I proceed to review them in their order.
Article XI: This article is a mere introduction to the succeeding articles.
Article XII: This article is in my judgment an exceptionable one. The principle of a restriction upon any thing which is not the produce of the Treaty itself is unprecedented & wrong. Had it been confined to articles from the British Islands it would have been justified, but extending to articles from other Countries and according to the letter to one which is the growth of our own Country, it appeared to me from the beginning inadmissible. It might also have proved a source of dissatisfaction to France by intercepting in the midst of the War a regular and just source of supply through us. And though I would not omit any measure which I thought for the national interest, because any foreign power might capriciously dislike it; yet I would do no act giving a reasonable cause of dissatisfaction. And for these reasons I am glad though at the risk of the Treaty that the Senate has excepted it.
I do justice to Mr. Jays reasoning on this subject. He thought rightly that the reexportation of the articles in ordinary times was a matter of little consequence to this country and that it was of importance by a formal Treaty to establish the precedent of a breach in the navigation system of Great Britain which might be successively widened. These reasons were not light ones, but they are in my judgment outweighed by the other considerations.
Article XIII: This article is a valuable one. In considering it, it is necessary to reflect that the privileges we now enjoy in the British East Indies are by the mere sufferance of the local Government and revocable at pleasure. This article converts into a right by stipulation, not all that we before enjoyed by sufferance, but the most essential and extensive part of it--the direct trade between India & the U States. Heretofore by sufferance we have been occasionally let into the coasting trade and have been permitted to go from India to other countries than the U States. The Treaty though it permits a circuitous trade to India permits only a direct trade from India to the U States--but when the articles arrive within the U States we may reexport them or do whatever else we please.
But though the Treaty does not secure to us an indirect Trade from India nor the coasting Trade there, I do not see but that these matters will be left just where they were before that is depending on the sufferance or free permission of the British Government in India. When two parties agree that a certain thing shall not be done, it is always with this tacit exception unless the party for whose benefit the restriction is imposed shall consent to wave it. If the British Government finds it expedient to continue to us the advantages not granted by Treaty, its permission ad hoc will release the restriction in the Treaty & confer the right. Tis by the same permission we have hitherto enjoyed it and by its continuance we may enjoy it still.
The interest of the other party was the only ground upon which we heretofore enjoyed any privilege in the British East Indies. That interest without the Treaty would continue the privilege so long & so long only as the interest continued. It will still do the same as to what is not included in the Treaty; and the result of the whole is this--that the Treaty converts into matter of right the most extensiveand most valuable part of a Trade which before was wholly matter of sufferance, leaving the residue now as it was before-- matter of sufferance to be continued or discontinued according to the interest of the party.
Some alarm has been attempted to be excited as if under this article, the British Merchants could enter into competition with us in the India Trade and by the superiority of their capitals supplant us. But there is not a syllable in this article which renders this at all more possible now than it was before. There is a clause which says negatively that our vessels shall pay in India no other or higher duties than are payable on British vessels in the ports of the U States. But as it is at the option of the other party under this article not to make us pay as much Tonnage in India as British vessels pay in the U States so before the Treaty it was in their power to make us pay not only as much but more; now by the Treaty they are rest [r]ained from making us pay more; so that something is gained nothing lost. There is a clause which immediately follows very important in a contrary sense to the object. This clause secures us from paying higher duties in India on articles imported and exported in our Vessels than are paid on the same articles in British Vessels; whereas before they might have imposed at pleasure higher duties on our Cargoes and very reasonably could have gone so far as to countervail the higher duties which we lay on foreign vessels bringing goods from India.
In fine this article is all on one side & favorable to us.
Article XIV: This article is a general formula without any special or remarkable feature.
Article XV: This article with more precision than is usual only establishes reciprocally the rule of the most favoured nation. It stipulates that as to the points enumerated Great Britain shall be on no worse footing than other nations but it gives her no preferences. It was impossible to expect that a Treaty could be formed of which this was not the basis.
The last clause but one reserves to Great Britain the right of imposing on American Vessels entering into her ports in Europe and their Cargoes, duties which shall countervails the differences made in our ports between British & American vessels and their Cargoes. This right Great Britain enjoyed before the Treaty, and it depended then upon her option as it does still to exercise or not to exercise it. And it is now in our option to defeat the reservation if we choose it by equalizing the duties.
The last clause stipulates on our side a continuance of the Status quo as to the Tonnage duty on British vessels and as to the proportional difference of duties on articles imported in British and American Vessels. This status quo is such as we have no interest to vary, unless on the plan of coercive regulations an idea which is certainly incompatible with the being of the Treaty while it continues in force.
Article XVI: This article merely relates to Consuls & is on the common and a harmless footing.
Article XVII: This article, recognizing the right of a belligerent nation to take its enemy's goods out of a neutral vessel, establishes the usual guards against abuse.
It is impossible to deny that the principle recognised is conformable with the laws of Nations. It is the uniform doctrine of Writers and was the uniform and universally allowed practice of Nations before the armed Neutrality brought it into controversy. A combination like this formed in the midst of a War, of temporary duration and on special motives of policy, not acceded to by all the powers of Europe, not having acquired the sanction of time is clearly not sufficient to alter a rule in the law of Nations. This must be done by common consent or by long and general usage. Neither is the case here. On the contrary some of the powers which combined to introduce the innovation now support in arms a contrary principle--and all the neutral powers the U States included have expressly or virtually relinquished the ground in the whole course of the present War. None that I know of has seriously contended for it even in argument.
Our government at an early day on full & mature examination and reflection by an unanimous opinion of those consulted, gave up the ground as untenable. The Presidents' files & Mr. Jefferson's letters are evidence of this. Indeed it is not very probable, that the new principle will ever become an established one of the laws of nations. It is too contrary to the spirit of War.
Where therefore the rule exists it must depend on Treaty and apply only to the powers who are parties to it.
This article therefore does no more than was done before and rightly & wisely done.
For besides that one or a few nations cannot justly make and attempt to enforce a new principle, it is folly in a young & weak Country like ours to take a ground which cannot clearly be maintained on precedent & principle.
The dilemma was to renounce the pretension or to insist upon & maintain it. To have attempted the last would have been madness.
It were to have been wished that this article had stipulated with regard to contraband goods, what has been stipulated with regard to enemy's goods, to wit, that the contraband only should be detained, the rest of the Cargo liberated--since it is contended, in certain cases, that the contraband articles will infect the Ship & the residue of the Cargo. But though such a stipulation would have been apoint gained, the want of it relinquishes nothing. The point is left where it was before, to the decision of the laws of Nations.
Article XVIII: The first clause of this article specifies the articles to be deemed generally contraband. This specification agrees with the laws of nations as laid down by Writers and sanctioned by long practice in all cases in which there are not limitations or exceptions in particular Treaties. The enumeration however comprises articles as contraband which are excepted in our other Treaties and is so far less well than might be wished, though probably as well as circumstances would permit to be done at the present juncture. In embracing generally articles for ship building it affects some of the staples of some of the states; but it is to be observed that it only leaves them in this respect where they are at present. It is however our interest to narrow upon all occasions as much as possible the list of contraband.
The second clause reciting the difficulty of agreeing on the precise cases in which alone provisions and other articles not generally contraband may be regarded as such--to prevent inconveniences and misunderstandings--provides that in the cases in which, by the existing laws of nations, they do become contraband, they shall not be confiscated but being taken shall be paid for at their full value with a reasonable mercantile profit freight and demurrage.
But one case in which such articles may be deemed contraband is by the succeeding clause subjected to a particular and different regulation. A vessel with her Cargo going to a port or place blockaded besieged or invested, if without notice, cannot be seized or detained but must be turned back. If she contumaciously persists and makes a second attempt she may be then seized and she and her cargo confiscated.
The last sentence guards our property found in places afterwards beseiged &c from vexations and depredations to which they have been in some cases liable.
The second clause has been the subject of much censure as though it sanctionned generally the seizing of provisions and other articles not generally contraband on the condition of paying for them; for it is said that all the cases in which the acknowleged laws of nations authorise such seizure are differently provided for in the third clause, (those of blockades seiges & investments) and consequently the provision in the second must be understood virtually to admit that there are other cases, and must be referred to the general position set up and acted upon by Great Britain in her order of June.
But this argument is erroneous in principle and in fact.
1 The cases in which articles not generally contraband may be seized even with compensation are expressly those in which “they become contraband according to the existing laws of nations.” The appeal is then to these laws as the Criterion--and the Government will be as free after the Treaty as before it to deny any arbitrary construction which Great Britain may think fit to put upon these laws and to maintain its opposition in all the ways it may think fit.
It is not true that the third clause provides for all the cases where the acknowleged laws of nations authorise seizure of such articles. It provides for only one single case that of a vessel going, without notice, to a place blockaded beseiged or invested. The case of a vessel going to such place with notice is not included.
Other cases in which provisions &c. may be properly contraband may be conceived. That of carrying them with the direct intent of supplying a besieging army in the act of carrying on the seige is one; for there is no reason why the party besieged should not intercept & seize supplies going to the besiegers as well as the last those which are destined for the besieged.
Various combinations of circumstances which do not at first sight occur may beget other cases in which the seizure may be justified.
The clause in question, then, speaks simply this language, that inasmuch as cases may exist, in which provisions and other articles not generally Contraband become so--as it is difficult before hand to define them as even in the admitted cases of blockades seiges and investments it may not always be easy to pronounce what is a blockade seige or investment as the parties cannot at this time agree upon a definition of the doubtful cases--they agree at least (with one exception which has been noticed) that in all cases of the seizure of such articles as contraband full compensation shall be made to the end that in doubtful cases, the inconvenience being thereby much lessened, the danger of rupture may be diminshed by inclining the party which conceives itself injured to acquiesce in the pecuniary compensation.
But though I have no doubt that this is the true and genuine sense of the clause and that it does by no means warrant the construction put upon it--yet as it may possibly become the pretext of abuses on the side of Great Britain and of complaint on that of France--I should have liked the Treaty better without it.
On the whole I think this article the worst in the Treaty except the 12th--though not defective enough to be an objection to its adoption.
Articles XIX & XX: These articles require no comment. They are usual and every way unexceptionable provisions.
Article XXI: This article is liable to no just objection, The first part of it restrains generally the citizens of each party from participating in hostilities against the other. This is implied in the leading article of
every Treaty of peace--is conformable with every moral idea--and, though more comprehensive in the extent of the inhibition, is agreeable to the principle of the law of Congress on this subject.
It is also agreeable to the true policy of the UStates which is to keep its citizens as much as possible from being implicated in the quarrels and contests of other nations, in foreign feelings interests and prejudices. This is an idea of great importance to our security in various ways.
The only case if at all in which it can be our interest that our citizens should engage in foreign service is that of young men of education entering into foreign service to acquire military knowlege & experience.
But it is conceived, that the doing of this in time of peace is not forbidden. The citizens of each party are not to accept commissions from, nor to be permitted to be enlisted by the enemies of the other. This seems to suppose a state of War when the forbidden act is done. The punishment for infractions of this part of the article is referred to the laws of the party whose citizens commit them. No precise one is defined.
The latter part of the clause subjects to the penalties of piracy the citizens of one party accepting commissions from the enemy of the other for arming any vessel to act as a Privateer.
A similar provision is to be found in all our Commercial Treaties heretofore made and is familiar in the commercial Treaties of other powers during the present Century.
It has wisely become the policy of nations to confine the mischievous practice of privateers to the belligerent parties. This is peculiarly our true policy; as from situation the contrary would never fail to compromise our peace.
It is to be observed that this crime of piracy does not extend to land service nor to service on board of public ships of War commonly called men of War.
Article XXII: This is a reasonable & usual provision in affirmance of the laws of nations and calculated to prevent War.
Article XXIII: This article merely stipulates those rights of hospitality which the curtesy and humanity of nations owe to each other & which it has been the endeavour of our Government to observe. It does not extend to privateers which are never denominated ships of War & consequently does not interfere with our Treaty with France as hitherto interpreted & acted upon.
Articles XXIV & XXV: These articles which are compatible with the rules of neutrality and the rights of belligerent nations are becoming formulas in modern treaties. They are to be found essentially in our Treaties with France Sweden and partly if not wholly in that with Prussia and in the Treaty of 1786 between France and Great Britain.
I That the enemies of one party shall not arm their privateers in the ports of the other.
II That they shall not sell their prizes there.
III That they shall not be allowed to purchase more provisions than are sufficient to carry them to the nearest Port of the Prince or State to which they belong.
IV That the Ships of War & Privateers of the two contracting parties may carry whithersoever they please the prizes made of their respective enemies, without being obliged on entering the ports of each other to pay fees or being detained or seized or subject to search except to prevent infractions of the laws of Revenue navigation & Commerce or having cognizance taken of the validity of their prizes and with free liberty to depart to the places mentioned in their Commissions which they are to shew.
V That no shelter or refuge shall be given to such as have made prizes of each others ships or vessels but if forced by stress of weather to enter their departure is to be hastened.
VI That while the parties continue in amity they will make no future Treaty inconsistent with these two articles.
But there is this express proviso--that “nothing in the Treaty shall be construed or operate contrary to former & existing public Treaties with other sovereigns or States.”
Hence while on the one hand these articles make no unreasonable stipulations in favour of G Britain--they can by no possibility interfere with prior stipulations to France or any other Power. If consequently there is any repugnancy the Treaty with Great Britain must give way to those prior Treaties.
There is only one particular in the conduct hitherto observed towards France in which the Treaty with Great Britain will produce an alteration, that is the selling of prizes in our ports; because this indulgence has been granted not upon the ground of any obligation to do it to be found in our Treaty with France but upon that of there being no law of the U States against it. The 24th article of the present Treaty will be a law against it and will restrain it.
But nothing can be more proper; and I well remember, that when it was concluded to permit the selling of prizes, it was unanimously regretted that the Executive, for want of law, could not do otherwise. Because the measure had an unneutral aspect--permitting to one party a military advantage which our Treaty with that party did not leave us at liberty to extend to the other and was of very questionable propriety. The permission was of a nature to give much dissatisfaction to the other powers.
A revocation of it therefore by a Treaty with one of those powers is unexceptionably equitable.
The clause which rest [r]ains the making of future Treaties in the given case has been grossly misunderstood.
It is expressly confined to the two articles & for aught I see is nugatory. For a Treaty implies of itself, that while the contracting parties remain in amity they shall make no subsequent Treaty inconsistent with the prior one between those parties.
Articles XXVI & XXVII: These articles need no particular comment. They are liberal and equitable and interfere with no interest or duty.
The part which regards ambassadors & ministers is calculated to avoid very delicate embarrassments & to exclude intrigues & bad conduct in foreign Ministers. It would be a valuable article in all our Treaties.
Article XXVIII: The effect of this Article is to enable either party in two years after the termination of the existing European War to put an end to all the articles of the Treaty except the first ten.
This upon the whole is a desireable ingredient. It makes the commercial part of the Treaty a mere experiment of short duration and enables each party, if any part of it should be found to work amiss, or if it thinks that upon the whole the Treaty is not sufficiently advantageous, to put an end to it unless the parts not satisfactory can be amended or the additional provisions which are desired can be agreed upon.
Article XXIX: This which is the last article provides merely for the ratification & looks to future negotiations for more beneficial arrangements.
To these particular views of the different articles of the Treaty The following general view may be added.
The truly important side of this Treaty is that it closes and upon the whole as reasonably as could have been expected the controverted points between the two Countries--and thereby gives us the prospect of repossessing our Western Posts, an object of primary consequence in our affairs--of escaping finally from being implicated in the dreadful war which is ruining Europe--and of preserving ourselves in a state of peace for a considerable time to come.
Well considered, the greatest interest of this Country in its external relations is that of peace. The more or less of commercial advantages which we may acquire by particular treaties are of far less moment. With peace, the force of circumstances will enable us to make our way sufficiently fast in Trade. War at this time would give a serious wound to our growth and prosperity. Can we escape it for ten or twelve years more, we may then meet it without much inquietude and may advance and support with ener[g]y and effect any just pretensions to greater commercial advantages than we may enjoy.
It follows that the objects contained in the permanent articles are of real and great value to us. The price they will cost us in the article of compensation for the Debts is not likely to bear any proportion to the expences of a single Campaign to enforce our rights. The calculation is therefore a simple and a plain one. The terms are no way inconsistent with national honor.
As to the Commercial arrangements in the Temporary articles, they can be of no great importance either way; if it were only for the circumstance that it is in the power of either party to terminate them within two years after the war. So short a duration renders them unimportant however considered as to intrinsic merit.
Intrinsically considered they have no very positive character of advantage or disadvantage. They will in all probability leave the Trade between the two Countries where it at present is.
There is however one material circumstance in which this will not happen. The XV article declares that there shall be no prohibition of the importation of or exportation to & from the respective territory of the contracting parties which shall not equally extend to all other nations. This permits us to carry to the British dominions any article the growth or manufacture of another Country which may be carried from such country to those dominions. This is a serious innovation on the British navigation act & an important privilege to us.
It is to be remarked, however, that it does not secure to us the continuance of those discriminations in our favour compared with foreign powers which have in practice existed; but as these discriminations have always been revocable at the pleasure of the other party and are evidently founded on the interest that party has to procure the supply from us rather than from other quarters--the inference is that the security for the continuance of the advantage is as great as before.
The obstacle to its becoming matter of stipulation was that it was deemed to be inconsistent with Treaties with other powers.
Comparing this Treaty with the commercial Treaties heretofore entered into by the UStates the real advantage is on the side of the former.
As to the European dominions of the different powers the footing will be essentially equal.
As to their colonies, Great Britain gives us greater advantages by this Treaty than any other nation having colonies by its Treaty. There is nothing in any of our other Treaties equivalent to the advantages granted to us in the British East Indies. To this may be added the advantages contained in the Canada Article.
Against this may be set the stipulation that free ships shall make free goods and the extended enumeration of contraband; but besides that these are provisions relative to a state of War our experience in the present war, in reference to France, has shewn us that the advantages expected are not to be counted upon.
Since then the permanent articles are of material consequence the temporary ones of small importance--since our faith is preserved with other powers--since there are no improper concessions on our part but rather more is gained than given--it follows that it is the interest of the U States that the Treaty should go into effect.
But will it give no umbrage to France?
It cannot do it unless France is unreasonable.
Because our engagements with her remain unimpaired & because she will still be upon as good a footing as Great Britain.
We are in a deplorable situation if we cannot secure our peace and promote our own interests by means which not only do not de<rogate> from our faith but which leave the same advantages to France as to other powers with whom we form Treaties. Equality is all that can be claimed from us.
It is improbable that France will take umbrage--because there is not cause given for it--because there is no disposition on her part to break with us and because her situation forbids a breach.
But will it not hinder us from making a more beneficial Treaty with France?
This can only turn upon the question of equivalents to be given by us.
As to this though our Treaty with England would prevent in many particulars our giving preferences to France; yet there are still important points from the natural relations of Commerce which are open to arrangements beneficial to France and which might serve as equivalents. There is not leisure to enter into the detail or this might be shewn. It may however be mentioned by way of example that we may lower or remove wholly the duties on French Wines, which would be one important item.
But it would be always very unwise to refrain from doing with one power a thing which it was our interest to do because there was a possibility that some other power might be willing to make a better bargain with us.
What evidence has France given that she is disposed to make such better bargain? All that she has hitherto proferred under her present Governt. has contemplated as the consideration, our becoming parties to the War. As she will and ought to calculate her own interest we ought to dismiss the expectation of peculiar favours. Favors indeed in Trade are very absurd and generally imaginary things.
Let it be remembered too that the short necessary duration of our Treaty leaves us a wide field future & not remote.
But upon the whole we shall be least likely to be deceived by taking this as the basis of our commercial system--that we are not to make particular sacrifices to nor expect particular favours from any power.
It is conceived therefore upon the whole to be the true interest of the U States to close the present Treaty with G Britain in the manner advised by the Senate.