No. I.

IT was to have been foreseen, that the treaty which mr. Jay was charged to negociate with Great-Britain, whene­ver it should appear, would have to contend with many per­verse dispositions, and some honest prejudices; that there was no measure in which the government could engage, so little likely to be viewed according to its intrinsic merits—so very likely to encounter misconception, jealousy, and unrea­sonable dislike. For this, many reasons may be assigned.

It is only to know the vanity and vindictiveness of human nature, to be convinced, that while this generation lasts, there will always exist among us, men irreconcilable to our present national constitution; embittered in their animosity in propor­tion to the success of its operations, and the disappointment of their inauspicious predictions. It is a material inference from this, that such men will watch, with lynx's eyes, for op­portunities of discrediting the proceedings of the government, and will display a hostile and malignant zeal upon every oc­casion, where they think there are any prepossessions of the community to favour their enterprizes. A treaty with Great-Britain was too fruitful an occasion not to call forth all their activity.

It is only to consult the history of nations, to perceive, that every country, at all times, is cursed by the existence of men, who, actuated by an irregular ambition, scruple nothing which they imagine will contribute to their own advancement and importance: in monarchies, supple courtiers; in republics, fawning or turbulent demagogues, worshipping still the idol, power, wherever placed, whether in the hands of a prince or of the people, and trafficing in the weaknesses, vices, frailties, or prejudices of the one or the other. It was to have been ex­pected, that such men, counting more on the passions than on the reason of their fellow citizens, and anticipating that the treaty would have to struggle with prejudices, would be dis­posed [Page 42]to make an alliance with popular discontent, to nourish it, and to press it into the service of their particular views.

It was not to have been doubted, that there would be one or more foreign powers, indisposed to a measure which accom­modated our differences with Great-Britain, and laid the foundation of future good understanding, merely because it had that effect.

Nations are never content to confine their rivalships and enmities to themselves. It is their usual policy, to disseminate them as widely as they can, regardless how far it may interfere with the tranquillity or happiness of the nations which they are able to influence.—Whatever pretensions may be made, the world is yet remote from the spectacle of that just and ge­nerous policy, whether in the cabinets of republies or of king which would dispose one nation, in its intercourses with ano­ther— satisfied with a due proportion of privileges and benefits to see that other pursue freely, its true interest with rega [...] to a third; though at the expense of no engagement, not i [...] violation of any rule of friendly or fair procedure. It was n [...] ­tural, that the contrary spirit should produce efforts of foreign counteraction to the treaty; and it was certain that the p [...] ­tizans of the counteracting power would second its efforts [...] all the means which they thought calculated to answer the end.

It was known, that the resentment produced by our re [...] ­lution war with Great-Britain, had never been entirely extin­guished, and that recent injuries had re-kindled the flame wi [...] additional violence. It was a natural consequence of this, [...] many should be disinclined to any amicable arrangement wi [...] Great-Britain, and that many others should be prepared to [...] ­quiesce only in a treaty which should present advantages of [...] striking and preponderant a kind, as it was not reasonable to expect could be obtained, unless the United States were i [...] a condition to give the law to Great-Britain, and as, if obtain­ed under the coercion of such a situation, could only have be [...] the short-lived prelude of a speedy rupture to get rid of the [...]

Unfortunately, too, the supposition of that situation b [...] served to foster exaggerated expectations; and the absurd [...] ­lusion to this moment prevails, notwithstanding the plain [...] dence to the contrary, which is deducible from the high [...] haughty ground still maintained by Great-Britain against [...]i [...] ­torious France.

It was not to be mistaken, that an enthusiasm for France [Page 43]and her revolution, throughout all its wonderful vicissitudes, has continued to possess the minds of the great body of the people of this country; and it was to be inferred, that this sen­timent would predispose to a jealousy of any agreement or treaty with her most persevering competitor—a jealousy so ex­cessive, as would give the fullest scope to insidious arts to per­plex and mislead the public opinion. It was well understood, that a numerous party among us, though disavowing the design, because the avowal would defeat it, have been steadily endea­vouring to make the United States a party in the present Euro­pean war, by advocating all those measures which would widen the breach betweeen us and Great-Britain, and by resisting all those which would tend to close it; and it was morally cer­tain, that this party would eagerly improve every circumstance which could serve to render the treaty odious, and to frustrate it, as the most effectual road to their favourite goal.

It was also known beforehand, that personal and party ri­valships, of the most active kind, would assail whatever treaty might be made, to disgrace, if possible, its organ.

There are three persons prominent in the public eye, as the successor of the actual president of the United States, in the event of his retreat from the station, mr. Adams, mr. Jay, and mr. Jefferson.

No one has forgotten the systematic pains which have been taken to impair the well-earned popularity of the first gentle­man. Mr. Jay, too, has been repeatedly the object of attacks with the same view. His friends, as well as his enemies, anti­cipated that he could make no treaty which would not fur­nish weapons against him: and it were to have been ignorant of the indefatigable malice of his adversaries, to have doubted that they would be seized with eagerness and wielded with dex­terity.

The peculiar circumstances which have attended the two last elections for governor of this state ^*, have been of a nature to give the utmost keenness to party animosity. It was impos­sible that mr. Jay should be forgiven for his double, and, in the last instance, triumphant success; or that any promising opportunity of detaching from him the public confidence, should pass unimproved.

Trivial facts frequently throw light upon important de­signs. It is remarkable, that in the toasts given on the 4th of [Page 44]July, wherever there appears a direct or indirect censure of the treaty, it is pretty uniformly coupled with compli­ments to mr. Jefferson, and to our late governor, mr. Clin­ton, with an evident design to place those gentlemen in contrast with mr. Jay, and, decrying him, to elevate them. No one can be blind to the singer of party spirit, visible in these and similar transactions. It indicates to us clearly, one powerful source of opposition to the treaty.

No man is without his personal enemies. Pre-eminence even in talents and virtue is a cause of envy and hatred of its possessor. Bad men are the natural enemies of virtuous men. Good men sometimes mistake and dislike each other.

Upon such an occassion as the treaty, how could it hap­pen otherwise, than that personal enmity would be unusually busy, enterprising, and malignant?

From the combined operation of these different causes, it would have been a vain expectation that the treaty would be generally contemplated with candour and moderation, or that reason would regulate the first impressions concern­ing it. It was certain, on the contrary, that however unex­ceptionable its true character might be, it would have to sight its way through a mass of unreasonable opposition; and that time, examination, and reflection, would be requi­site to six the public opinion on a true basis. It was certain that it would become the instrument of a systematic effort against the national government and its administration; a decided engine of party to advance its own views at the ha­zard of the public peace and prosperity.

The events which have already taken place, are a full comment on these positions. If the good sense of the peo­ple does not speedily discountenance the projects which are on foot, more melancholy proofs may succeed.

Before the treaty was known, attempts were made to pro­possess the public mind against it. It was absurdly asserted, that it was not expected by the people, that mr. Jay was to make any treaty; as if he had been sent, not to accommo­date differences by negociation and agreement, but to dictate to Great-Britain the terms of an unconditional submission.

Before it was published at large, a sketch, calculated to produce false impressions, was handed out to the public, through a medium noted for hostility to the administration of the government.—E [...]ssaries flew through the country, spreading alarm and discontent: the leaders of clubs were [Page 45]every where active to seize the passions of the people, and pre-occupy their judgments against the treaty.

At Boston it was published one day, and the next a town­meeting was convened to condemn it, without ever being read; without any serious discussion, sentence was pro­nounced against it.

Will any man seriously believe, that in so short a time, an instrument of this nature could have been tolerably under­stood by the greater part of those who were thus induced to a condemnation of it? Can the result be considered as any thing more than a sudden ebullition of popular passion, ex­cited by the artifices of a party, which had adroitly seized a favourable moment to furorize the public opinion; this spi­rit of precipitation and the intemperance which accompanied it, prevented the body of the merchants and the greater part of the most considerate citizens, from attending the meeting, and left those who met wholly under the guidance of a set of men, who, with two or three exceptions, have been the uniform opposers of the government.

The intelligence of this event had no sooner reached New-York, than the leaders of the clubs were seen haranguing in every corner of the city, to stir up our citizens into an imi­tation of the example of the meeting at Boston. An invita­tion to meet at the city-hall quickly followed, not to consider or discuss the merits of the treaty, but to unite with the meet­ing at Boston to address the president against its ratification.

This was immediately succeeded by a hand bill, full of in­vectives against the treaty, as absurd as they were inflamma­tory, and manifestly designed to induce the citizens to surren­der their reason to the empire of their passions.

In vain did a respectable meeting of the merchants endea­vour, by their advice, to moderate the violence of these views, and to promote a spirit favourable to a fair discussion of the treaty; in vain did a respectable majority of the citizens of every description attend for that purpose. The leaders of the clubs resisted all discussion, and their followers, by their cla­mors and vociferations, rendered it impracticable, notwith­standing the wish of a manifest majority of the citizens con­vened upon the occasion.

Can we believe, that the leaders were really sincere in the objections they made to a discussion, or that the great and mixed mass of citizens then assembled, had so thoroughly mas­tered [Page 46]the merits of the treaty as that they might not have been enlightened by such a discussion.

It cannot be doubled that the real motive to the opposition, was the fear of a discussion; the desire of excluding light; the adherence to a plan of surprize and deception. Nor need we desire any fuller proof of the spirit of party which has stimulated the opposition to the treaty, than is to be found in the circumstances of that opposition.

To every man who is not an enemy to the national govern­ment, who is not a prejudiced partizan, who is capable of comprehending the argument, and dispassionate enough to at­tend to it with impartiality, I flatter myself I shall be able to demonstrate satisfactorily in the course of some succeeding papers.—

• 1. That the treaty adjusts, in a reasonable manner, the points in controversy between the United States and Great-Britain, as well those depending on the inexecution of the treaty of peace, as those growing out of the present European war.
• 2. That it makes no improper concessions to Great-Britain, no sacrifices on the part of the United States.
• 3. That it secures to the United States equivalents for what they grant.
• 4. That it lays upon them no restrictions which are in­compatible with their honor or their interest.
• 5. That in the articles which respect war, it conforms to the laws of nations.
• 6. That it violates no treaty with, nor duty towards any foreign power.
• 7. That compared with our other commercial treaties, it is, upon the whole, entitled to a preference.
• 8. That it contains concessions of advantages by Great-Britain to the United States, which no other nation has ob­tained from the same power.
• 9. That it gives to her no superiority of advantages over other nations with whom we have treaties.
• 10. That interests of primary importance to our general welfare, are promoted by it.
• 11. That the too-probable result of a refusal to ratify, is war, or what would be still worse, a disgraceful passiveness under violations of our rights, unredressed and unadjusted: and consequently that it is the true interest of the United States, that the treaty should go into effect.

[Page 47] It will be understood, that I speak of the treaty as advised to be ratified by the senate—for this is the true question be­fore the public.

No. II.

PREVIOUS to a more particular discussion of the merits of the treaty, it may be useful to advert to a suggestion which has been thrown out, namely, That it was foreseen by many, that the mission to Great-Britain would produce no good result, and that the event has corresponded with the an­ticipation.

The reverse of this position is manifestly true.

All must remember the very critical posture of this coun­try, at the time that mission was resolved upon. A recent viola­tion of our rights, too flagrant and too injurious to be sub­mitted to, had filled every American breast with indignation, and every prudent man with alarm and disquietude. A few hoped, and the great body of the community feared, that war was inevitable.

In this crisis, two sets of opinions prevailed, one looked to measures which were to have a compulsory effect upon Great-Britain, the sequestration of British debts, and the cutting off intercourse wholly or partially between the two countries: the other to vigorous preparations for war, and one more effort of negociation, under the solemnity of an extraordinary mis­sion, to avert it.

That the latter was the best opinion, no truly sensible man can doubt; and it may be boldly affirmed, that the event has entirely justified it.

If measures of coercion and reprisal had taken place, war, in all human probability, would have followed.

National pride is generally a very untractable thing. In the councils of no country does it act with greater force, than in those of Great-Britain. Whatever it might have been in her power to yield to negociation, she could have yielded nothing to compulsion, without self-degradation, and without the sa­crifice of that political consequence, which, at all times very important to a nation, was peculiarly so to her at the juncture in question. It should be remembered, too, that from the relations [Page 48]in which the two countries have stood to each other, it must have cost more to the pride of Great-Britain to have received the law from us than from any other power.

When one nation has cause of complaint against another, the course marked out by practice, the opinion of writers, and the principles of humanity, the object being to avoid war, is to precede reprisals of any kind, by a demand of reparation. To begin with reprisals is to meet on the ground of war, and puts the other party in a condition not to be able to recede without humiliation.

Had this course been pursued by us, it would not only have rendered war morally certain, but it would have united the Bri­tish nation in the vigorous support of their government, in the prosecution of it: while, on our part, we should have been quickly distracted and divided. The calamities of war would have brought the most ardent to their senses, and placed them among the first in reproaching the government with precipita­tion, rashness, and folly, for not having taken every chance, by pacific means, to avoid so great an evil.

The example of Denmark and Sweden is cited in support of the coercive plan. Those powers, it is asserted, by arming and acting with vigour, brought Great-Britain to terms.

But who is able to tell us the precise course of this trans­action, or the terms gained by it? Has it appeared that either Denmark or Sweden has obtained as much as we have done— a stipulation of reparation for the violation of our property, contrary to the laws of war?

Besides, what did Denmark and Sweden do? They armed, and they negociated. They did not begin by retaliations and reprisals. The United States also armed and negociated, and, like Denmark and Sweden, prudently forbore reprisals. The conduct of the three countries agreed in principle, equally steering clear of a precipitate resort to reprisals, and contra­dicting the doctrines and advice of our war party.

The course pursued by our government was then in coin­cidence with the example of Denmark and Sweden—and, it may be added, was in every view the wisest.

Few nations can have stronger inducements than the United-States to cultivate peace. Their infant state in general—their want of a marine in particular, to protect their commerce, would render war, in an extreme degree, a calamity. It would not only arrest our present rapid progress to strength and pros­perity, but would probably throw us back into a state of de­bility [Page 49]and impoverishment, from which it would require years to emerge.

Our trade, navigation, and mercantile capital, would be es­sentially destroyed. Spain being an associate with Great-Bri­tain, a general Indian war might be expected to desolate the whole extent of our frontier—our exports obstructed, agricul­ture would of course languish; all other branches of industry would proportionably suffer; our public debt instead of a gra­dual diminution, would sustain a great augmentation, and draw with it a large increase of taxes and burthens on the people.

But these evils, however great, were, perhaps, not the worst to be apprehended. It was to be feared, that the war would be conducted in a spirit which would render it more than or­dinarily calamitous. There are too many proofs, that a consi­derable party among us is deeply infected with those horrid principles of jacobinism, which, proceeding from one excess to another, have made France a theatre of blood, and which, notwithstanding the most vigorous efforts of the national re­presentation to suppress it, keeps the destinies of France, to this moment, suspended by a thread. It was too probable, that the direction of the war, if commenced, would have fallen in­to the hands of men of this description. The consequence of this, even in imagination, are such as to make any virtuous man shudder.

It was, therefore, in a peculiar manner, the duty of the go­vernment to take all possible chances for avoiding war. The plan adopted was the only one which could claim this advan­tage.

To precipitate nothing, to gain time by negociation, was to leave the country in a situation to profit by any events which might turn up, tending to restrain a spirit of hostility in Great-Britain, and to dispose her to reasonable accommodation.

The successes of France, which opportunely occurred, allow­ing them to have had an influence upon the issue, so far from disparaging the merit of the plan that was pursued, serve to illustrate its wisdom. This was one of the chances which pro­crastination gave, and one which it was natural to take into the calculation.

Had the reverse been the case, the posture of negociation was still preferable to that of retaliation and reprisal; for in this case, the triumphs of Great-Britain, the gauntlet hav­ing [Page 50]been thrown by us, would have stimulated her to take i [...] up without hesitation.

By taking the ground of negociation in the attitude of pre­paration for war, we at the same time carried the appeal [...] the prudence of the British cabinet, without wounding its pride, and to the justice and interest of the British nation [...] without exciting feelings of resentment.

This conduct was calculated to range the public opinion of that country on our side, to oppose it to the indulgence of hos­tile views in the cabinet, and, in case of war, to lay the foun­dation of schism and dissatisfaction.

But one of the most important advantages to be expected from the course pursued, was the securing of unanimity among ourselves, if, after all the pains taken to avoid a war, it had been forced upon us.

As on the one hand, it was certain that dissention and dis­content would have embarrassed and enfe [...]bled our exertion [...] in a war produced by any circumstances of intemperance i [...] our public councils, or not endeavoured to be prevented by all the milder expedients usual in similar cases: So, on the other, it was equally certain, that our having ineffectually [...] ­hausted those expedients, would cement us in a firm [...] keep us steady and persevering amidst whatever vicissit [...] might happen, and never our efforts to the utmost extent [...] our resources.

This union among ourselves, and disunion among our [...] ­mies, were inestimable effects of the moderate plan, if it [...] promised no other advantage.

But to gain time was of vast moment to us in other sens [...]. Not a sea-port of the United States was fortified, so as to protected against the insults of a single frigate.—Our ma [...] ­zines were, in every respect, too scantily supplied. It was hight­ly desirable to obviate these deficiencies before matters ca [...] to extremity.

Moreover, the longer we kept out of war, if obliged to [...] into it at last, the shorter would be the duration of the ca [...] ­mities incident to it.

The circumstances of the injury of which we more imme­diately complain, afforded an additional reason for precedi [...] reprisals by negociation. The order of the 6th of November, directed neutral vessels to be bro't in for adjudication. This was an equivocal phrase; and though there was too much ca [...] to suspect that it was intended to operate as it did, yet th [...] [Page 51]was a possibility of misconstruction; and that possibility was a reason, in the nature of the thing, for giving to the English government an opportunity of explaining before retaliations not place.

To all this it may be added, that one of the substitutes for the plan pursued, the sequestration of debts, was a measure no less dishonest than impolitic; as will be shown in the re­marks which will be applied to the 10th article of the treaty.

But is it unimportant to the real friends of republican go­vernment, that the plan pursued was congenial to the pacific character which is ascribed to it? Would it have been more desirable that the government of our nation, outstripping the war-maxims of Europe, should, without a previous demand of reparation, have rushed into reprisals, and consequently into a war?

However this may be, it is a well ascertained fact, that our country never appeared so august and respectable as in the po­sition which it assumed upon this occasion.—Europe was struck with the dignified moderation of our conduct; and the cha­racter of our government and nation acquired a new ele­vation.

It cannot escape an attentive observer, that the language, which, in the first instance, condemned the mission of an en­voy extraordinary to Great-Britain, and which now condemns the treaty negociated by him, seems to consider the United States as among the first rate powers of the world in point of strength and resources, and proposes to them a conduct pre­dicated from that condition.

To under-rate our just importance, would be a degrading error. To over-rate it, may lead to dangerous mistakes.

A very powerful state may frequently hazard a high and haughty tone with good policy; but a weak state can scarcely ever do it without imprudence. The last is yet our character; tho' we are the embryo of a great empire. It is, therefore, bet­ter suited to our situation to measure each step with the utmost caution; to hazard as little as possible, in the cases in which we are injured; to blend moderation with firmeness; and to brandish the weapons of hostility only when it is apparent that the use of them is unavoidable.

It is not to be inferred from this, that we are to crouch to any power on earth, or tamely to suffer our rights to be vio­lated. A nation which is capable of this meanness, will quick­ly have no rights to protect, or honour to defend.

[Page 52] But the true inference is, that we ought not lightly to feet or provoke a resort to arms; that, in the differences between us and other nations, we ought carefully to avoid measures which tend to widen the breach; and that we should scr [...] ­lously abstain from whatever may be construed into reprisals, till after the employment of all amicable means has reduced it to a certainty that there is no alternative.

If we can avoid a war for ten or twelve years more, we shall then have acquired a maturity, which will make it no more than a common calamity, and will authorise us, in our national discussions, to take a higher and more imposing to [...].

This is a consideration of the greatest weight to determine us to exert all our prudence and address to keep out of we as long as it shall be possible; to defer, to a state of manhood a struggle to which infancy is ill adapted. This is the [...] effectual way to disappoint the enemies of our welfare; [...] pursue a contrary conduct may be to play into their hands, and to gratify their wishes. If there be a foreign power which [...] with envy or ill-will our growing prosperity, that power [...] discern that our infancy is the time for clipping our win [...] We ought to be wise enough to see, that this is not a ti [...] for trying our strength.

Should we be able to escape the storm which at this j [...] ­ture agitates Europe, our disputes with Great-Britain [...] minated, we may hope to postpone war to a distant peri [...] This, at least, will greatly diminish the chances of it. For th [...] there will remain only one power with whom we have [...] embarrassing discussions. I allude to Spain, and the quest [...] of the Mississippi; and there is reason to hope, that this ques­tion by the natural progress of things, and perseverance is an amicable course, will finally be arranged to our satisfaction without the necessity of the dernier resort.

The allusion to this case suggests one or two importance [...] [...] flections. How unwise would it have been to invite or fa [...] ­tate a quarrel with Great-Britain, at a moment when she [...] Spain were engaged in a common cause, both of them hav [...] besides, controverted points with the United States. How [...] will it be to adjust our differences with the most formidable [...] these two powers, and to have only to contest with o [...] them!

The allusion to this case suggests one or two importance [...] [...] flections. How unwise would it have been to invite or fa [...] ­tate a quarrel with Great-Britain, at a moment when she [...] Spain were engaged in a common cause, both of them hav [...] besides, controverted points with the United States. How [...] will it be to adjust our differences with the most formidable [...] these two powers, and to have only to contest with o [...] them!

This policy is so obvious, that it requires an extraordinary degree of infatuation not to be sensible of it, and not to vi [...] with favour any measure which tends to so important a resul [...]

[Page 53] This cursory view of the motives which may be supposed to have governed our public councils in the mission to Great-Britain, serves not only to vindicate the measures then pursu­ed, but warns us against a prejudiced judgment of the result, which may, in the end, defeat the salutary purposes of those measures.

I proceed now to observe summarily, that the objects of the mission, contrary to what has been asserted, have been sub­stantially obtained. What were these? They were principally,

• 1. To adjust the matters of controversy concerning the in­execution of the treaty of peace, and especially to obtain res­titution of our western posts.
• 2. To obtain reparation for the captures and spoliations of our property in the course of the existing war.

Both these objects have been provided for; and it will be shown, when we come to comment upon the articles which make the provisions in each case, that it is a reasonable one, as good a one as ought to have been expected; as good a one as there is any prospect of obtaining hereafter; one which it is consistent with our honour to accept, and which our inte­rest bids us to close with.

The provisions with regard to commerce, were incidental and auxiliary. The reasons which may be conceived to have led to the including of the subject in the mission, will be dis­cussed in some proper place.

No. III.

THE opposers of the treaty seem to have put invention on the rack, to accumulate charges against it, in a great number of cases, without regard even to plausibility. If we suppose them sincere, we must often pity their ignorance; if insincere, we must abhor the spirit of deception which it be­trays. Of the preposterous nature of some of their charges, specimens will be given, in the course of these remarks; though, while nothing, which is colourable, will remain unat­tended to, it were endless to attempt a distinct refutation of all the wild and absurd things which are and will be said. It is vain to combat the vagaries of diseased imaginations. The monsters they engender, are no sooner destroyed, than new [Page 54]legions supply their places. Upon this, as upon all former oc­casions, the good sense of the people must be relied upon; and it must be taken for granted, that it will be sufficient for their conviction, to give solid answers to all such objections as have the semblance of reason; that now, as heretofore, they will maintain their character abroad and at home, for deliberation and reflection, and disappoint those who are in the habit of making experiments upon their credulity, who, treating them as children, fancy that sugar-plumbs and toys will suffice to gain their confidence and attachment, and to lead them blind­fold, whither soever it is desired.

In considering the treaty, it presents itself under two prin­cipal heads; the permanent articles, which are the first ten, and which, with some supplementary provisions, adjust the controverted points between the two countries; and the tem­porary articles, which are all the remaining ones, and which establish the principles of mutual intercourse as to GENERAL navigation and commerce. The manner of the discussion will correspond with this natural division of the subject.

An objection meets the treaty at the threshold. It is said that our envoy abandoned the ground which our government had uniformly held, and with it our rights and interests as a nation, by acceding, in the preamble of the treaty, to the ide [...] of terminating the differences between the two countries, "it such a manner, as, without reference to the merits of their respeciti [...] complaints and pretensions, may be best calculated to produce mutual satisfaction and good understanding."

It is observed, in support of this, that our government ha [...] constantly charged the first breaches of the treaty upon Great-Britain, in the two particulars of carrying away the negroes, and detaining the posts; that while the evacuation of New-York was going on, a demand of the surrender of the negroes was made by congress, through our commander in chief, which not being complied with, commissioners were sent, [...] ascertain the number carried away, with a view to a claim of compensation; that early and repeated applications were also. made for the surrender of the Western Posts, which not only was not done, but it is proved by the circumstances, that or­ders were not given for it, according to the true intent of the treaty, and that there was, from the beginning, a design to in­fract, and a virtual infraction of the article with respect [...]s this object. All this, it is alleged, has been the uniform lan­guage of our government, and has been demonstrated by [...]r. Jefferson to be true, in his letter to mr. Hammond, of the [Page 55]29th of May, 1792; and it is asserted, that the ground ought not to have been given up by mr. Jay, because it was the standard of the mutual rights and duties of the parties, as to the points unexecuted of the treaty of peace.

A proper examination of these matters is therefore called for, not only by the specific objection which is made to the principle which is contained in the preamble, but by the in­fluence which a right solution is calculated to have, in giving a favourable or unfavourable complexion to the whole plan of the adjustment.

It is true, as suggested, that our government has constantly charged as breaches of the treaty by Great-Britain, the two particulars which have been stated; but it is believed to be not true, that it has uniformly charged them as FIRST breaches of the treaty. Individuals may have entertained this idea. The state of Virginia seems to have proceeded upon it in some pub­lic acts; but as far as is recollected, that ground was never formally or explicitly taken by the government of the United States in the above-mentioned letter from mr. Jefferson to mr. Hammond, when, for the first time, an attempt was made to vindicate or excuse the whole conduct of this country, in re­gard to the treaty of peace, contrary, I will venture to say, to the general sense of well-informed men.

The most solemn act of our government on this head, is an address of congress to the different states, of the 13th of April, 1787.

This address admits contraventions of the treaty on our part; and instead of deriving either justification or extenuation of them from prior infractions by Great-Britain, urges the dif­ferent states to a repeal of all contravening laws.

But if the fact, in this respect, were admitted to be, as stated by the adversaries of the treaty, it would not authorise their conclusion.

It would not follow, that, because the ground had been taken by the government, it ought to have been pertinaciously kept, if, upon fair examination, it had appeared to be not solid, or if an adherence to it would have obstructed a reasonable adjust­ment of differences.

Nations, no more than individuals, ought to persist in error, especially at the sacrifice of their peace and prosperity —be­sides, nothing is more common, in disputes between nations, than each side to charge the other with being the aggressor or delinquent. This mutual crimination, either from the na­ture [Page 56]of circumstances, or from the illusions of the passions, is sometimes sincere; at other times, it is dictated by pride or, policy—But in all such cases, where one party is not power­ful enough to dictate to the other, and where there is a mu­tual disposition to avoid war; the natural retreat for both is in compromise, which waves the question of first aggression or delinquency. This is the salvo for national pride; the escape for mutual error; the bridge by which nations, arrayed against each other, are enabled to retire with honor, and without blood­shed, from the field of contest. In cases of mutual delinquen­cy, the question of the first default is frequently attended with real difficulty and doubt.—One side has an equal right with the other, to have and maintain its opinion.—What is to be done, when the pride of neither will yield to the argument of the other? War, or a waver of the point, is the alternative What sensible man, what humane man, will deny, that a compromise, which secures substantially the objects of inter­est, is almost always preferable to war on so punctilious and unmanageable a point?

Reject the principle of compromise, and the feuds of na­tions must become much more deadly than they have hither [...] been. There would scarcely ever be room for the adjustment of differences, without an appeal to the sword; and, wh [...] drawn, it would seldom be shcathed but with the destructi [...] of one or the other party. The earth, now too often staine [...], would then continually stream with human gore.

From the situation of the thing, and of the parties, that never could be a rational doubt, that the compromising p [...] was the only one on which the United States and Great-Bri­tain could ever terminate their differences without war; th [...] the question, who was the first delinquent, would have [...] an eternal bar to accommodation, and consequently, that's dismission of that question was a pre-requisite to agreem [...] Had our envoy permitted the negociation to be arrested [...]y obstinacy on this head, he would have shown himself to be [...] diplomatic pedant, rather than the able negociator, and wo [...] have been justly chargeable with sacrificing to punctilio, the peace of his country. It was enough for him, as he did, [...] ascertain by a preliminary discussion, the impossibility of br [...] ­ing the other party to concede to the point.

An impartial survey of the real state of the question, [...] satisfy candid and discerning men, that it was wise and poli­tic to dismiss it. This shall be attempted.

[Page 57] It has been observed, that two breaches of the treaty of peace are charged upon Great-Britain; the carrying away of the Negroes, and the detention of the posts. It remains to in­vestigate the reality of these breaches, and to fix the periods when they can be said to have happened.

As to the Negroes, the true sense of the article in the treaty of peace, which respects them, is disputed.

The words of the stipulation are (Art. 7.) 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, gar­risons, and fleets, from the United States."

These terms admit of two constructions; one, that no Ne­groes, or other articles which had been American property, should be carried away; the other, that the evacuations were to be made, without depredation; consequently, that no new de­struction was to be committed, and that: Negroes, or other ar­ticles, which, at the time of the cessation of hostilities, continu­ed to be the property of American inhabitants, unexchanged by the operations of war, should be forborne to be carried away.

The first was the construction which was adopted by this country; and the last is that insisted upon by Great-Britain.

The arguments which support her construction, are these:

• I. The established laws of war give to an enemy the use and enjoyment, during the war, of all coal property, of which he obtains possession, and the absolute ownership of all personal property which falls into his hands. The latter is called [...]ty: and, except ships, becomes vested in the captors the moment they acquire a firm possession. With regard to ships, it seems to be a general rule of the marine law, that condemnation is necessary to complete investment of the property in the captor.
• II. Negroes, by the laws of the states, in which slavery is allowed, are personal property. They, therefore, on the prin­ciple of those laws, like horses, cattle, and other moveables, were liable to become booty—and belonged to the enemy, as soon as they came into his hands. Belonging to him, he was free either to apply them to his own use, or to set them at liberty. If he did the latter, the grant was irrevocable, res­titution was impossible. Nothing in the laws of nations, or in those of Great-Britain, will authorise the resumption of liber­ty, once granted to a human being.
• III. The negroes in question were either taken in the course [Page 58]of military operations, or they joined the British army upon invitation by proclamation. However dishonourable to Great-Britain the latter may have been, as an illiberal species o [...] warfare, there is no ground to say that the strict rules of wa [...] did not warrant it; or that the effect was not in the one case, as well as in the other, a change of property in the thing.
• IV. The stipulation relates to "Negroes or other property of the American inhabitants;" putting Negroes on the same footing with any other article. The characteristic of the sub­ject of the stipulation being property of American inhabitan [...] whatever had lost that character could not be the object o [...] the stipulation. But the Negroes in question, by the laws [...] war, had lost that character; they were therefore not within the stipulation.

  Why did not the United States demand the surrender [...] captured vessels, and of all other moveables, which had falle [...] into the hands of the enemy? The answer is, because com­mon sense would have revolved against such a construc­tion. No one could believe, that an indefinite surrender of al [...] the spoils or booty of a seven year's war was ever intended [...] be stipulated; and yet the demand for a horse, or an or, or a piece of furniture, would have been as completely within the terms "negroes and other property," as a negro; conse­quently, the reasoning which proves that one is not included excludes the other.

  The silence of the United States, as to every other articl [...] is therefore a virtual abandonment of that sense of the stipu­lation which requires the surrender of negroes.

• V. In the interpretation of treaties, things odious or immor [...] are not to be presumed. The abandonment of Negroes, who had been induced to quit their masters, on the faith of o [...] ­cial proclamation, promising them liberty, to fall again un­der the yoke of their masters, and into slavery, is as odi [...] and immoral a thing as can be conceived. It is odious [...] only as it imposes an act of perfidy on one of the contract­ing parties; but as it tends to bring back to servitude, m [...] once made free. The general interests of humanity conspi [...] with the obligation which Great-Britain had contracted [...] ­wards the Negroes, to repel this construction of the treat [...] if another can be found.
• VI. But another, and a less exceptionable construction i [...] found in considering the clause as inserted, for greater caution to secure evacuations without depredation. It may be answered, that this was superfluous, because hostilities having ceased, [Page 59]she stipulation to surren [...], implied of itself, that it was to be alone without depredation. But, to this the reply is, that a part of the clause manifestly contemplates the case of new de­predations, and provides a guard against it, in the promise, that the evacuations shall be made without causing any destruc­tion. To cause destruction is to do some new act of violence. This reflection destroys the argument drawn from the super­fluousness of the stipulation in the sense here given to it, and by showing that it must have such a sense in one part, autho­rises the conclusion, that the remainder of the clause has a si­milar sense. The connection of the two things, in parts of one sentence, confirms this inference.

These arguments certainly have great weight, and do not admit of easy refutation. It is a fact, too, that the opinions of some of the ablest lawyers of our own country, have, from the beginning, corresponded with the construction they enforce.

It is not enough for us to be persuaded, that some of the negociators, who made the peace, intended the article in our sense. It is necessary that it should be found in the instrument itself, and, from the nature of it, ought to have been expres­sed with clearness and without ambiguity. If there be real am­biguity in such a case, the odiousness of the effect will incline the scale against us.

It does not remove the difficulty, to say, that compensation for the negroes might have been a substitute for the thing.— When one party promises a specific thing to another, nothing but the thing itself will satisfy the promise. The party to whom it is made cannot be required to accept in lieu of it an equi­valent. It follows, that compensation for the negroes would not have been a performance of the stipulation to forbear to carry them away; and therefore, if there be any thing odious in the specific thing itself, the objection to the interpretation which requires it, is not done away by the idea of substituting compensation. For the article does not admit such substitution, and its sense cannot be defined by what it does admit.

Some colour to our sense of the article results from these ex­pressions in the same clause, "leaving in all fortifications, the American artillery that may be therein."—But this expression is not of equivalent force to that of property of American inhabi­tants. —For example suppose an American ship to have been captured and condemned, it might still be said of her, in a certain sense, this is an "American ship," alluding to the [Page 60]country of which she had been the ship; but it could not be said in any sense of her, this ship is American property, or the property of American inhabitants. The country of which [...] thing was, may often be used with aptness as a term of de­scription of that thing, though it may have changed owner [...] but the term property, which is synonimous with ownership, can never be used in the present tense as descriptive of an own­ership, which has ceased. Moreover, if the expressions in the two cases had been (as they are not) of equivalent force, [...] would not follow that they were to have the same meaning i [...] both cases, being applied to different matters. For an odious consequence in one instance, would be a reason for rejecti [...] a particular sense of a word or phrase, which would be prop [...] in another, to which no such consequence was attached.

Let me now ask this question of any candid man. Is o [...] construction of the article respecting the negroes, so much better supported than that of Great-Britain, as to justify o [...] pronouncing with po [...]tiveness, that the carrying them away was a breach of the treaty?

To me it appears clear, that this must be considered, speak­ing favourably for us, as a very doubtful point, and that [...] cannot with confidence predicate a breach of the treaty [...] Great-Britain upon this event. If it was one, it happened [...] May 1783.

The affair of the western posts is now to be examined; [...] the detention of them, after the proper point of time for [...] livering them up, was a breach of the treaty, will not be [...] dispute. But what that proper time was, it a serious ques [...] between the two parties.

Our government has contended, that the posts ought to h [...] been surrendered with all convenient speed, after the provi [...] ­al treaty took effect: and mr. Jefferson, who is much cited [...] the present occasion has shown, by an ingenious and cla [...] ­rate deduction of circumstances, that this was not only [...] done, but never intended.

But mr. Jefferson has not even discussed the question, which [...] the provisional or the definitive treaty was the act from whic [...] the obligation to perform was to date. This is an import [...] omission; for Great-Britain affirms the definitive treaty to [...] the criterion.

As an original question, much might be said on both [...] The natural relation of the terms provisional or preliminary and definitive seems to exhibit the former as inchoate and imp [...] ­ [...]ct, [Page 61]and to refer to the latter the conclusive obligatory force and legal perfection. There is room, therefore, to say, that all but the mere cessation of hostilities, or for the execution of which there is no precise point of time fixed in the prelimi­nary articles, is referred to in the definitive treaty.

On the other hand, it may be argued, that a preliminary treaty is as much a national treaty as a definitive one, both being made by an equal and the competent authority; and that there is no good reason why those things which are suf­ficiently regulated by the preliminary, should not go into im­mediate and complete effect, equally as if regulated by the definitive treaty; or why the latter should be considered as any thing more than an instrument for adjusting points which may have been left open by the preliminary articles, and for giving more perfect form. Accordingly, there are examples of preliminary treaties going into mutual and full execution, though never followed by definitive treaties.

But, however this question may have stood on principle, the conduct of our government in the particular case has set­tled it against us, and has completely sanctioned the doctrine of Great-Britain.

If performance was to date from the provisional articles, this applies as well to us to to Great-Britain. It was incum­bent upon congress to have notified the treaty, with the pro­per solemnities, to the different states and their citizens; to have made the recommendations stipulated by the fifth arti­cle; and to have enjoined the observance of all those things which we promised on our part. The nature of some of these stipulations rendered it particularly urgent that no time should be lost. But all was deferred till the ratification in this coun­try of the definitive treaty. The 15th of January 1784, is the date of the act which attempts to carry the treaty into effect on our part. This then is a practical settlement by our­selves of the principle, that performance was to date from the definitive treaty.

It is no objection to the position, that our sea ports were previously evacuated; that was matter of mutual convenience; and though done, does not change the state of strict obligation between the parties. Even in the view of liberal and concilia­ting procedure, the prompt surrender of our [...] a ports are, for obvious reasons, very different things.

But our dilemma is this, if the delay of orders for evacuating the western posts, previous to the ratification of the definitive treaty, was, on the part of Great-Britain, a breach of treaty, [Page 62]our delay to act upon the points stipulated by us till after th [...] ratification, must have been equally a breach of treaty; and it must have been at least cotemporary with any breach tha [...] could have been committed by Great-Britain.

We are compelled then by our own example to agree wi [...] Great-Britain that she was not obliged to surrender the western posts till after the mutual ratification of the definitive treaty [...] and to abandon the superstructure, however soothing to o [...] wishes, which has been reared upon a different foundation. [...] so, we must look to the period of the exchange of the ratificati [...] in Europe for the date of the orders for evacuating. I have [...] in my possession materials for fixing with accuracy that peri [...] but considering the time of the ratification here and the ti [...] of its probable arrival in England, we are carried to the la [...] end of April or begining of May 1784; so that it is not till [...] ­bout May 1784, that we can charge upon Great-Britain a d [...] ­linquency as to the surrender of the posts.

Having now examined the nature of the infractions of [...] treaty of peace charged upon Great-Britain with reference [...] dates I shall, in the next number of this defence, trace some [...] ­stances of infraction on our part with a like reference. Th [...] conclusions to be drawn from this comparison, if I mistake no [...] will greatly disconcert some articles of the prevailing creed [...] this head, and go far towards confirming what was prelimina­rily offered to evince the prudence of our envoy in relinqui [...] ­ing the favourite ground.

No IV.

AN accurate enumeration of the breaches of the treat [...] of peace on our part, would require a tedious re­search. It will suffice to select and quote a few of the [...] prominent and early instances.

One of the earliest is to be found in an act of this state, [...] ­granting a more effectual relief in cases of certain trespass [...] passed the 17th March, 1783. This act takes away from any person (subjects of Great-Britain of every description incl [...] ­ed) who had, during the war, occupied, injured, destroyed [...] received property, real or personal, of any inhabitant without [Page 63]the British lines, the benefit of the plea of a military order; consequently the justification which the laws and usages of war give, and the immunity resulting from the reciprocral am­ [...]esty, which, expressly or virtually, is an essential part of every treaty of peace. To this it may be added that it was consider­ed by Great-Britain as a direct infraction of the 6th article of her treaty with us, which exempts all persons from prosecution "by reason of the part they might have taken in the war."

Mr. Jefferson, not controverting the point that the provisions of this act were contrary to the treaty, endeavours to get rid of the inference from it, by alleging three things.—

• 1st. That it passed antecedently to the treaty, and so could not be a violation of an act of subsequent data.—
• 2d. That the treaty was para­mount to the laws of the particular states, and operated a re­peal of them.—
• 3d. That the exceptionable principle of this act was never sanctioned by the courts of justice, and in one instance (the case of Rutgers and Waddington in the mayor's court) was over ruled.

As to the first point, it is sufficient to answer, that the law continued to operate, in fact, from the time of the treaty rid the 4th of April, 1787, when there was a repeal of the exception­ [...]ble clause, by an act of our legislature. During the period of [...]our years, many suits were brought and many recoveries had; extending even to persons who had been in the military [...]rvice of Great-Britain.

To the second point, these observations may be opposed.

The articles of the confederation did not, like our present constitution, declare that treaties were supreme laws of the [...]and. The United States, under that system, had no courts of their own, to expound and enforce their treaties as laws. All was to depend upon the comparative authority of laws and [...]eaties, in the judgment of the state courts.

The question, whether treaties were paramount to, and a [...]rtual repeal of antecedent laws, was a question of theory, about which there was room for, and in this country did exist much diversity of opinion. It is notorious, that it has been [...]renuously maintained that however a national treaty ought, a good faith, to be conclusive on a state, to induce a repeal of [...]ws contrary to it; yet its actual laws could not be contro­verted by treaty, without an actual repeal by its own authority. This doctrine has been emphatically that of the party distin­ [...]uished by its opposition to national principles.

And it is observable, that congress, not relying entirely up [Page 64]on the force of the treaty, to abrogate contravening laws, in their address already cited, urge the states to a repeal of those laws. It is likewise observable in respect to the very act under consideration, that the legislature of the state, in April, 1787, thought a positive repeal of the exceptionable clause neces­sary.

The complaints of a power, whose treaty with us was, [...] fact, violated by the operation of a state law, could never [...] satisfactorily answered by referring to a theoretic, abstract, [...]puted proposition. Such a power might reply with irresisti [...] force: "It is not for us to concern ourselves about the stru [...] ­ture and meaning of your political constitutions, or the fou [...] of legal maxims deducible from the forms and distribu­tions of power which you have adopted for your governments. It is the act in which alone we are interested — you have stipu­lated this and that to us—your stipulation in practice is con­travened. It is your duty to soe that there are no impediment from conflicting authorities within yourselves, to an exact [...]silment of your promises. If you suffer any such impediment to exist, you are answerable for the consequences."

As to the third point, it is to be observed, that though th [...] may have been no express formal decision of our courts, [...] forcing the exceptionable principle of the trespass act: [...] there never was a decision of a supreme court against it; [...] it may not be amiss to remark incidentally, that the de [...] of the mayor's court, from which mr. Jefferson is glad to [...] rive an exculpation of our conduct, was the subject of [...]vere animadversion at a popular meeting in this city, as [...]diciary encroachment on the legislative authority of the [...]. The truth on this point is, that according to the opini [...] our bar, a defence under a military order was desperate, [...] it was believed that a majority of our supreme court [...] would over-rule the plea. Hence in numerous cases wh [...] might have been used, it was waved; and the endeavo [...] behalf of the defendants, was either to effect on coll [...] grounds, a mitigation of damages, or to accomplish the [...] compromises that could be obtained; even the suit of Ru [...] and Waddington, after a partial success in the mayor's [...] was terminated by a compromise, according to the advi [...] the defendant's council, owing to the apprehension of an [...] favourable issue in the supreme court; and this, notwi [...] ing the defendant was a British subject.

Under these circumstances, which are faithfully repe [...] [Page 65]is it possible to doubt, that the act in question operated a breach of our treaty with Great-Britain? and this from the commencement of its existence? can we reasonably expect, that nations with whom we have treaties, will allow us to sub­stitute theoretic problems to performances of our engage­ments, and will be willing to accept them as apologies for actual violations?

It is pertinent to remark, that the British commander in chief very early remonstrated against this act; but the remon­strance produced no effect.

Another act of the state of New-York may be cited as a violation of the treaty on our part, which must have been [...]early cotemporary with that of the detention of the posts. Its date is the 12th of May, 1784; this act confirms, in ex­ [...]ess terms, all confiscations before made, notwithstanding Errors in the proceedings, and takes away the writ of error up­ [...] any judgment previously rendered.

This was, in substance, a new confiscation; judgments which from error were invalid, were nullities. To take away [...] writ of error, by which their nullity might be established, [...] to give them an efficacy which they did not before possess; [...], as to the operation, cannot be distinguished from the ren­ [...]ing of new judgments. To make voidable acts of confis­ [...]tion valid and conclusive, is equivalent to new acts of con­ [...]cation. A fair execution of the treaty, required, that every [...]ng in this respect should be left where it was, and forbade [...] remedying of defects, in former proceedings, as much as [...] restitution of new judgments.

Another, and an unequivocal breach of the treaty, is found [...] act of South-Carolina, of March 26, 1784. This act [...]ends the recovery of British debts for nine months, and [...] allows them to be recovered only in four yearly install­ [...]s, contrary to the express stipulation of the IVth article, " [...] creditors on either side, shall meet with [...] lawful impedi­ [...]s to the recovery of the full value in sterling money, of all bon [...] [...] debts theretofore contracted."

It is idle to attempt to excuse infractions of this kind, by [...]pleas of distress and inability. This is to make the conve­ [...]ce of one party the measure of its obligation to perform [...] promises to another. If there was really an impossibility of [...]ent, as has been pretended, there was no need of legisla­ [...]e obstruction; the thing would have regulated itself; and [Page 66]the very interest of the creditor was a pledge, that no gene [...] evil could have resulted from allowing a free course to t [...] laws. If such impediments could be justified, what imped [...] ­ments might not be justified? What would become of the ar­ticle, the only one in the treaty, to be performed by us, [...] real consequence to Great-Britain?

This infraction by South-Carolina, was prior to that of [...] detention of the posts, by Great-Britain.

But the case of Virginia is still stronger than that of South Carolina. There is evidence which cannot be disputed, th [...] her courts, in defiance of the treaty, have constantly remain­ed shut to the recovery of British debts, in virtue of laws pas­sed during the war.

An act of her general assembly of the 22d June, 1784, [...]ter suggesting as breaches of the treaty by Great-Britain, [...] carrying off of the negroes, and the detention of the posts, a [...] instructing her delegates in congress to request a remonstra [...] to the British court, complaining of those infractions, and [...] siring reparation, and after declaring that the national hou [...] and interest of the citizens of that common wealth obliged [...] assembly to withhold their co-operation in the complete fulfil [...] the said treaty, until the success of the aforementioned re [...] strance is known, or congress shall signify their senti [...] touching the premises, concludes with the following re [...] ­tion:

"That so soon as reparation is made for the foreg [...] fraction, or congress shall judge it indisputably necessary, acts and parts of acts passed during the late war, as inhibit recovery of British debts, ought to be repealed, and payment [...] of made in such time and manner as shall consist with the [...] ­ted situation of the commonwealth."

The plain language of this resolution is, that there [...] acts passed during the war, which then actually inhibi [...] recovery of British debts; and that for the removal of th [...] hibition, a repealing act by the authority of Virginia was [...]cessary.

However unfounded this position might have been in th [...] here is conclusive evidence that the fact in Virginia was [...] formable to it; that her courts had been, ever since the [...] then were, and until a repealing law was passed, were to continue to be shut against the recovery of British d [...] When testimony of this kind was urged by the British [...]ter, was it possible for our envoy to make any solid [...] [Page 67]Who could be supposed to know better than the legislature of Virginia, the real state of the fact? When that legislature de­clared it to be as has been stated, who, or what could contra­dict it? With what truth has it been asserted, that "it was at all times perfectly understood" that treaties controuled the laws of the states?

Additional proof of the contrary is found in the subsequent conduct of Virginia. On the 12th of December, 1787, the state passed an act repealing all such acts or parts of acts of the late, as had prevented, or might prevent the recovery of debts due to British subjects, according to the true intent of the treaty; but with this proviso, that there should be a suspen­sion of the repeal, 'till the governor, by advice of council had, by proclamation, notified that Great-Britain had delivered up the posts, and was taking measures for the further fulfilment of the treaty by delivering up the Negroes, or by making compensation for them. This denotes clearly, that in the opi­nion of the legislature of Virginia, there were acts of that state which had prevented and might prevent the recovery of debts according to the treaty.

It is observable, too, that the resolutions of June, 1784, do not even give the expectation of a complete repeal of the im­peding laws, in the event of reparation of the breaches of treaty by Great-Britain. They only promise such a modificati­on of them as would permit the payment in such time and man­ [...] as should consist with the exhausted situation of the common­ [...]lth; that is, not according to the true intent of the treaty, [...] according to the opinion of the legislature of Virginia of [...]e abilities of the commonwealth.

As the infraction which these proceedings of Virginia ad­ [...], resulted from acts passed during the war, it of course was [...]eval with the first existence of the treaty of peace, and seems [...] preclude the possibility of any prior breach by Great-Bri­tain. It has been at least demonstrated, that the detention of [...]e posts was not such prior breach; as there was no obligati­on to surrender 'till after the exchange of the ratifications of the definitive treaty in England.

I pass by the serious contraventions of the treaty in this important article of the debts, which are of a later date, because they do not affect the question of the first breach, though they [...]e of great weight to demonstrate the obligation of the Uni­ted States to make conpensation.

The argument then, upon the whole, as to the question of the first breach, stands thus—It is a great doubt whether the [Page 68]carring away of the negroes was at all a breach. If it was one, the trespass act of this state preceded it in date, and went into operation the very moment it was possible to issue process. The detention of the posts is subsequent to breaches of the article concerning their recovery of debts on our part. This, i [...] the case of South Carolina, is determined by the date of her act (March 26, 1784) which is before the exchange of the rati­fications of the definitive treaty could have taken place. In that of Virginia, it results from her own testimony, that im­pediments to the recovery of British debts, created by acts passed during the war, continued from the first moment of the peace until after the year 1787. Or if, contrary to our own in­terpretation, we are disposed to adhere to the provisional treaty as the act from which performance was to date, we were guil­ty of a breach in not acting ourselves upon that treaty: a breach, which being co-temporary with the existence of the treaty, seems not to admit of any prior contravention. From all which it follows, that take what ground we will, we must be perplexed to fix the charge of the first breach of the trea [...]y upon Great Britain.

Let the appeal be to the understandings and hearts of [...] ­did men—men who have force of mind sufficient to refe [...] themselves from the trammels of prejudice, and who dare [...] look even unpalatable truths in the face. Let such men pro­nounce, whether they are still satisfied that Great Britain i [...] clearly chargeable with the first breaches of the treaty?— Whether they are not, on the contrary, convinced that the question is one so mixed and doubtful, as to render a warm of it, even on the score of intrinsic merit, expedient on [...] part? and especially whether they can entertain a particle of doubt, that it was wiser to wave it than to suffer it to prover final obstacle to the adjustment of a controversy on which the peace of their country was suspended? This was undoubte [...] the alternative to our envoy. In the choice he made, the [...] mate opinion of our enlightened country cannot fail to up­plaud his prudence.

No. V.

THE discussion in the two last numbers has shown, if [...] mistake not, that this country by no means stands upon such good ground, with regard to the inexecution of the tr [...]ty [Page 69]of peace, as some of our official proceedings have advanced, and as many among us have too lightly credited. The task of displaying this truth has been an unwelcome one. As long as a contrary doctrine was either a mere essay of polemical skill, or a convenient ingredient of negociation, it was natural for those who thought differently of it, to prefer silence to con­tradiction; but when it is made the engine of great errors, of national conduct, of excessive pretensions, which forbid a rea­sonable accommodation, of national difference, and endangers rupture and war, on grounds which reason disapproves and prudence condemns, it becomes an indispensible duty to ex­pose its hollowness and fallacy.—Reserve then would be a crime. The true patriot, who never fears to sacrifice popu­larity to what he believes to be the cause of public good, cannot hesitate to endeavour to unmask the error, though with the certainty of incurring the displeasure and censure of the preju­diced and unthinking.

The disposition to infract the treaty, which, in several parti­culars, discovered itself among us, almost as soon as it was known to have been made, was, from its first appearance, a source of humiliation, regret, and apprehension to those who could dispassionately estimate the consequences, and who felt a proper concern for the honor and character of the country. They perceived that besides loss of reputation, in must sooner or later lead to very serious embarrassments. They have been hitherto mistaken in no part of their anticipations; and if their faithful warning voice, now raised to check the progress of er­ror, is as little listened to as when it was raised to prevent the commencement of it, there is too much cause to fear, that the experience of extensive evils may extort regrets which the fore­sight of an enlightened people ought to avert.

Citizens of United America! as you value your present en­viable lot, rally round your own good sense! Expel from your confidence, men who have never ceased to misadvise you! Discard intemperate and illiberal passions! Aspire to the glory of the greatest triumph which a people can gain, a triumph over prejudice! Be just, be prudent! Listen impartially to the una­dulterated language of truth! And, above all, guard your peace with anxious vigilance against all the artful snares which are laid for it! Accompany me with minds open to convic­tion, in a discussion of unspeakable importance to your wel­fare!

Weigh well, as preliminary to further investigation, this momentous proposition. "PEACE, in the particular situation [Page 70]of this independent country, is an object of such GREAT and PRIMARY magnitude, that it ought not to be relinquished, un­less the relinquishment be clearly necessary to PRESERVE our HONOUR in some UNEQUIVOCAL point, or to avoid the sacrifice of some RIGHT or INTEREST of MATERIAL and PERMANENT importance." This is the touchstone of every question which can come before us, respecting our foreign concerns.

As a general proposition, scarcely any will dispute it; but in the application of the rule, there is much confusion of ideas; much false feeling and falser reasoning. The ravings of anger and pride are mistaken for the suggestions of honor. Thus are we told in a delirium of rage, by a gentleman of South-Carolina, that our envoy should have demanded an un­conditional relinquishment of the western posts as a right; till which was granted, and until lord Grenville had given orders to lord Dorchester to that effect, open to be sent to our president, to be by him forwarded, he should not have opened his lips about the treaty. It was prostrating the dearest rights of freemen, and laying them prostrate at the feet of royalty.

In a case of incontestible, mutual infractions of a treaty, one of the parties is to demand, peremptorily of the other, an unconditional performance upon his part, by way of pre­liminary and without negociation. An envoy sent to avert war, carrying with him the clearest indications of a general solicitude of his country, that peace might be preserved, was, at the very first step of his progress, to render hostility inevi­table, by exacting, not only what could not have been com­plied with, but what must have been rejected with indig­nation. The government of Great-Britain must have been the most abject on earth, in a case so situated, to have listened for a moment to such a demand. And because our envoy did not pursue this frantic course; did not hold the language of an IMPERIOUS BASHAW to his TREMBLING SLAVE, he is absurdly stigmatised as having prostrated the rights of freemen, at the foot of royalty. What are we to think of the state of mind which could produce so extravagant a sally? would a prudent people have been willing to have entrusted a nego­ciation which involved their peace to the author of it? will they be willing to take him as their guide in a critical emer­gency of their affairs? ^*

[Page 71] True honor is a rational thing. It is as distinguishable from Quixotism, as true courage from the spirit of bravo. It is possible for one nation to commit so undisguised and unqua­lified an outrage upon another, as to render a negociation of the question dishonorable. But this seldom, if ever happens. In most cases, it is consistent with honor to precede rupture by negociation, and whenever it is, reason and humanity de­mand it. Honor cannot be wounded by consulting modera­tion. As a general rule, it is not till after it has become ma­nifest, that reasonable reparation for a clear premediated wrong cannot be obtained by an amicable adjustment, that honor demands a resort to arms. In all the questions between us and Great-Britain, honor permitted the moderate course; in those which regard the inexecution of the treaty of peace, there had undoubtedly been mutual faults.—It was, there­fore, a case for negociation and mutual reparation. True ho­nor, which can never be separated from justice, even requires reparation from us to Great-Britain, as well as from her to us. The injuries we complain of in the present war, were also of a negociable kind. The first was bottomed on a controverted point in the laws of nations. The second left open the question, whether the principal injury was a designed act of the govern­ment or a misconstruction of its courts. To have taken, there­fore, the imperious ground which is recommended, in place of that which was taken—would have been not to follow the admonitions of honor, but to have submitted to the impulse of passion and phrenzy.

So likewise, when it is asserted that war is preferable to the sacrifice of our rights and interests, this, to be true, to be ra­tional, must be understood of such rights and interests as are certain, as are important, such as regard the honor, security, or prosperity of our country. It is not a right disputable, or of small consequence, it is not an interest temporary, par­tial and inconsiderable, which will justify, in our situation, an appeal to arms.

Nations ought to calculate as well as individuals; to com­pare evils; and to prefer the lesser to the greater; to act otherwise, is to act unreasonably; those who counsel it, are impostors or madmen.

These reflections are of a nature to lead to a right judgment of the conduct of our envoy in the plan of adjustment to which he has given his assent.

Three objects, as has appeared, were to be aimed at, on be­half [Page 72]of the United States. 1st, Compensation for Negroes car­ried away. 2d, Surrender of the Western Posts. 3d, Compen­sation for spoliation during the existing war.

Two of these objects, and these in every view the most im­portant, have been provided for; how fully will be examined hereafter. One of them has been given up (to wit) compen­sation for the Negroes.

It has been shown, as I trust, to the conviction of dis­passionate men, that the claim of compensation for the Ne­groes, is, in point of right, a very doubtful one; in point of interest, it certainly falls under the description of partial and inconsiderable; affecting in no respect, the honor or security of the nation, and incapable of having a sensible influence up­on its prosperity. The pecuniary value of the object is, in a national scale, trifling,

Not having before me the proper documents, I can only speak from memory. But I do not fear to be materially mis­taken in stating that the whole number carried away, so ascer­tained as to have afforded evidence for a claim of compensa­tion, was short of 3000 persons, of whom about 1300 were of sixteen years and upwards, men, women, and children. Com­puting these at an average of 150 dollars per head, which is a competent price, the amount would be 450, 000 dollars, and not two or three millions, as has been pretended.

It is a fact, which I assert on the best authority, that our en­voy made every effort in this power to establish our constructi­on of the article relating to this subject, and to obtain compen­sation; and that he did not relinquish it, till he became con­vinced, that to insist upon it would defeat the purpose of his mission, and leave the controversy between the two countries unsettled.

Finding, at the same time, that the two other points in dis­pute could be reasonably adjusted, is there any one who will be rash enough to affirm, that he ought to have broken off the negociation on account of the difficulty about the Negroes? Yes! there are men, who are thus inconsiderate and intempe­rate! But will a sober reflecting people ratify their sentence?

No. 1.

AS the embassy extraordinary to Great Britain, from the appointment of the envoy, to the conclusion of the treaty, is unequalled in the annals of negociation, it becomes us, the people, who are yet the constitutional sovereigns of the country, to consider it with attention, that it may in future either serve as a friendly beacon to point out a secure harbour in political storms, [...] avoided as a light perfidiously hung out to lure our unsuspecting b [...] on [...]ocks and quicksands.

[Page 115] It is essential to the due consideration of the advantages and disadvantages of a treaty, to examine the contracting parties; because the same treaty may be good under some, and bad under other circumstances; thus, when Carthage gave up her ships, wealth, and arms in the second Punic war—the treaty might have been considered as good in relation to her then situation, humbled as she was by the Roman arms, and compelled to rely for her existence, as a nation, solely on the justice and humanity of the Roman senate; and yet a treaty of this sort would have been considered as base and abject, if it had been made imme­diately after the battle of Cannae: and their senate (venal as Carthage then was) would not have been so lost to every patri­otic sentiment as to have sanctioned its ratification. Britain, on the day of the signature of the treaty, was involved in a war with the bravest people in Europe; in the whole course of this war, she had experienced continued defeats and disgraces; her treasures were wasted upon allies that either deserted or were too feeble to afford her effectual aid; her debt had grown to the enormous sum of three hundred millions; her navy could only be manned by the most destructive burdens upon her commerce; her manufactures were languishing, her fleets were unable to protect her trade, which had suffered unexampled losses. And while she was sinking under her burdens, her antagonist was consolidating her government, and growing so rapidly in strength, reputation, and vigor, as to threaten her existence as a nation. The United States were, on the other hand, in the highest prosperity; their nu [...]bers had doubled since they had successfully measured swords with Britain; they possessed men, arms, military stores, and an ally, who was alone too powerful for her enemies. Sweden and Denmark, who had received insults from Britain, were ready to make a common cause with her; and as the marine of England and France were nearly balanc­ed, the weight of America, had she been forced into the war, would have turned the scale, and have completed the ruin of the British commerce, without any other effort than that of granting letters of marque. Independent of which, without the violation of their neutrality, by those acts of sovereignty which no one would dispute their right to exercise, they could involve the British trade in the utmost distress, by an additional duty on British tonnage, by granting advantages to rival ma­nufactures, by retaining debts due to her merchants, till the in­juries ours had sustained were compensated. By following her example, both in the present and in the late American war, and suffering no part of the public debt to be paid to her citi­zens, till justice was done us, we could have forced her into [Page 116]any measure that it was just or proper for us to ask. And indeed, so fully satisfied were the Americans, of every party, on the superiority of our situation, that no doubt was enter­tained of a favorable issue to Mr. Jay's negociation; and all that his friends lamented, and his enemies rejoiced in, was, that the principal credit of them would be ascribed rather to the victories of France, than to the address of our minister. Under these happy auspices the negociation began: we shall proceed to see how it concluded.

The next point of enquiry is into the objects of the negoti­ation; for as every treaty is an abridgment of the natural freedom of nations, no wise state ever enters into one, but with a view to remove some evil, or acquire some advantage. It is upon this ground, that many of our most distinguished patriots have been of opinion, that all commercial treaties were injurious trammels and bargains, in which we might probably be over­reached at the moment, or which circumstances might them after render inconvenient; that America having nothing to sell but articles of the first necessity to the nations with which [...] deals, and affording a market to their manufactures, her ou [...] trade laws were her best treaties; since she may alter and mod [...] them at pleasure: and, indeed, experience has justified the [...] opinion: independent of the depredations we have suffered fr [...] the war, our trade enjoyed every advantage that we could re [...] sonably wish. A commercial treaty was not the object of Mr. Jay's mission; the British nation in direct violation of the treaty of Paris, refused to surrender the western posts; extended the limits of their jurisdiction, availed themselves of their situ­ation to possess the Indian trade, and stimulated the savages to ravage our frontier: British officers ever accompanying them in their incursions, it became the dignity of the nation to demand a delivery of the posts— reparation for the loss of trade—a com­pensation for the expence of the war the British had excited with the Indians—a public punishment of the British subjects who had personally appeared in arms against us, with the remo [...]al from office of Lord Dorchester, who had, in his address to the Indians, encouraged them to violate the treaty of peace. M [...] Jay was thought the properest person to make this demand▪ Let us see how far he has justified that sentiment, in fulfilling his duty with respect to this single point.

By the 2d article of the treaty, the British promise to eva­cuate the Western Posts by the 1st of June, 1796. By the treaty of Paris, in 1783, they promised to evacuate with all con­venient speed, which, if we may judge by the speed with which they have found it convenient to evacuate all their posts in [Page 117]France, Flanders, Germany, Holland, and Brabant, one would have supposed must have meant a much shorter time than eigh­teen months; so that all that the treaty acquires with respect to the posts, is less than we were entitled to, by the treaty of Paris. Surely we might expect better security than a mere promise from a nation which has already shown, in their violation of the past, the little reliance that can be placed on their future, engagements. By June, 1796, it is not improbable that our situation, or that of Britain, may be changed; what security shall we then have for the performance of the treaty? It is said, as has been already said (by those apologists whose arguments seem determined to find every ministerial measure right) that every treaty is a promise, and that if we are not to rely upon a promise, there can be no treaties.—I answer, that it is the practice of negociators, where the character of the nation, or other circumstances, give reason to suspect a violation of their engagements, not to rely upon a naked promise, but to expect some guarantee or surety for the performance; that in the pre­sent case, as the promise was evidently extorted by the pressure of existing circumstances, we should see to the performance while those circumstances continue to exist. It is evident, before Mr. Jay left this country, that the British were so far from intending to evacuate the posts, that they had determined to extend their limits; this may not only be inferred from all the encouragement they gave to the depredations of the Indians, but undeniably proved by Lord Dorchester's speech, which, though disavowed by Dund [...]s, is now admitted to have been made in consequence of express instructions. The promise, then, to evacuate, has been extorted by French victories, by the humiliation of the British nation, and by their apprehension, that we might, at last, be provoked to do ourselves justice, while they were embarrassed with France. Surely, then, the evacua­tion should have been insisted upon, while these circumstances operated with full force;—what was there to impede an imme­diate evacuation of Oswego, which is only occupied by a lieu­tenant's command? what was to prevent our troops being put in immediate possession of Niagara and the upper posts, under an engagement to protect, for a limited time, the British pro­perty that remained there? In one week this might have been effected, considering the situation of the posts, upon navigable waters, as well as in one year.—May we not reasonably sup­pose, that the British still entertain a hope, that peace between them and France, dissentions between the United States and that Republic, the seeds of which are so plentifully sown by the treaty itself, may enable them to violate their second, with the [Page 118]same impunity that they have their first engagement. If the supposed non-performance of the treaty of Paris (which, how­ever, has been so ably refuted by Mr. Jefferson in his correspon­dence with Mr. Hammond on that subject; has hitherto serve them as a pretext for retaining the posts; how many such pretence must the complexity and obscurity of the present treaty afford▪ But suppose the war with France to continue, suppose they have the magnanimity to forgive our predilection for the ene [...], suppose the spirit of our own nation to get the better of th [...] disgraceful stupor into which a venal system has lulled it—sup­pose the increasing imbecility of Britain shall forbid her to [...] for impunity in a further breach of faith, will it still be a [...] ­ter of little moment, whether or not she retains garrisons in the midst of our territory for twelve months longer or not? are we not at this moment at war with the savages? is not this [...] attended with much expense to the nation, and much private distress? is not the blood of our citizens daily shed? these [...] must continue as long as the posts are in the hands of the British; or a peace, if practicable, must be purchased br [...] United States at very considerable expense: were we to estimate the difference in this point of view, between an imm [...] evacuation, and one that is to take place in June 1796, it would certainly not fall short of one million of dollars, independen [...] of the destruction of our fellow citizens, whose lives are beyond all price.—If to this we add the annual profits of the Indian trade, amounting to 800, 000, it will appear that the United States lose near two millions of dollars, by the retention of the posts, supposing (which is at least problematical) that they shall be surrendered at the period proposed. Those who think w [...] me, that decision on the part of our government, and firm [...] in our minister, could not have failed to effect an immediate restitution of our territory, will know to what account to charge this heavy loss of blood and treasure.

But was the evacuation of the posts all we had a right to ask on that subject; if the retention of them occasioned those expensive Indian wars which have so often drained our treasury and thinned our ranks.—If, for 12 years, we have lost thereby a lucrative branch of commerce, are we entitled to no compen­sation for these losses? If the honor of the nation has been insulted, both by lord Dorchester and the subjects of Great Britain under his command, are we to expect no reparation for these insults? Have we reason, from what we have seen of Mr. Jay's correspondence with Lord Grenville, to presume that any has been asked? are we not assured that none has been ob­ [...]ed? What, then, is the beasted article, about which so [Page 119]much has already been said, which was the only one commu­nicated to the public, as the only one that it was imagined would bear the light? what is it but a declaration on the part of Britain, that though she had already stripped us of millions, though she has occasioned the death of thousands of our fel­low citizens, yet she now promises, that if we will let her pocket another million, and pay as much more out of our own treasury for a peace with her Indian allies, she will consent, in case the war with France should continue, and she should be too weak to contend with us, to let us possess our own territory. And what is our submission to these terms, and the unrequited insults we have received, but the lowest political degradation? If it is said that these were the best terms that could be obtain­ed, I boldly deny the assertion; the state of Europe, the state of England itself, their submission to Denmark and Sweden, even to the little state of Genoa, warrant the denial. But should it even have been otherwise, it would have been infi­nitely better, both in point of honor and interest, to have waited, after having spoken with dignity of our rights, till circumstances should have enabled us to enforce them, than to have relinquished our well founded claim to a compensation of at least ten millions; to have relinquished that satisfaction which our national honor demanded; can we doubt that if we were ourselves too weak, which I am far from supposing, that the magnanimity of France would have permitted her to conclude a peace with England, without procuring us the satisfaction which her guarantee of our territories entitled us to ask? I am warranted in asserting, from the best authority, that she would not.

No. II.

THE next transaction of the treaty of Paris, for which we were entitled to compensation, is that by which they en­gaged not to carry off negroes or other property. To enforce this stipulation, the commander in chief, by the order of con­gress, sent colonel Smith and Mr. Benson to New York; who, finding it impossible to prevent property to a considerable amount from being shipped, took an account of so much as came to their knowledge.—What satisfaction has Mr. Jay pro­cured to the United States for this loss? Are commissioners [Page 120]appointed by choice or by chance, for the liquidation of these accounts? Has the British government rendered itself liable for them? When Mr. Jay was so solicitous to secure to the Bri­tish merchants every item of their demands, with interest and damages, would it not have been proper to have reflected upon those his country might claim?

The third demand, and perhaps the best founded of any made by a free country, was that which rel [...]ed, not merely to the violation of our flag, nor to a point of national honor only, nor to the infraction of treaties, or the withholding our ter [...] ­tories, but to what is infinitely dearer than either, to the p [...] ­sonal liberty of our citizens. Before Mr. Jay left this country, it had been the common practice of the British to press Ame­rican seamen, not only from our vessels at sea, but in the very harbour of London, and with such distinguished contempt did they treat us, that the government not only winked at it, but their judiciary, in defiance of their own laws, authorized it. A seaman having found means (a matter of no small difficulty when in the hands of a press-gang) to procure a habeas corp [...], the captain of the ship of war returned on the writ, that he was a British subject; and though the seaman had certificate [...] and witnesses to prove that he was an American citizen, the judge refused to admit them, and declared that the captain's return was conclusive evidence; from which time to the present moment, it has been the common practice of the ships of war, even within sight of our own harbours, to tear that valuable class of citizens from their domestic enjoyments, from the bo­som of their families, to be subject to military discipline and imprisonment. By a tame submission to these measures, we withhold that protection which is due to every citizen, and which indeed is the great end of government. We man the fleets of the enemy of our ally; disable our merchants from availing themselves of all the advantages we might derive from our neutrality, and justify our seamen in quitting a country in which they have no security, even for personal liberty, to seek it in foreign service.—Of this resource, however, Mr. Jay has endeavoured to deprive them. Surely it would have been his duty, when he was consigning such as went into the service of our ally, to an infamous death, to have obtained some satisfac­tion for the wrongs they had suffered while under the protection of their national flag: yet upon this subject the treaty is wholly silent. Perhaps the envoy extraordinary believed, that any sti­pulation in their favor, would have derogated from his assertion, that America relied solely on the justice and magnanimity of his Britannic majesty.

[Page 121] If the British merchants are entitled to the payment of those f [...]e demands, which the tyranny of their own government infabled their ruined debtors from discharging, how much more [...]ly may our injured seamen, forced from their native homes, subjected to a brutal tyranny they detested, and compelled to fight against the people they loved; how much more, I say, are they entitled to payment for their loss of time, with interest and damages for the injuries they have sustained? yet no com­missioners are appointed to hear their demands; no national security is pledged for their indemnification; no satisfaction is made to the insulted honor of the nation; no officer, that has [...]traged the laws of nature and nations, is punished or even removed from the command which he has so unworthily exer­cised. On the contrary, Lord Grenville, fearful that the people might at length be wearied with repeated insults, and resent them upon such of their authors as daily frequent our ports and harbours, and repay our mistaken hospitality with insults, hath expressly stipulated, in the 23d article, "That the officers shall be treated with that respect which is due to the commissions they bear; and if any shall be insulted by any inhabitants, all offend­ers in this respect shall be punished as disturbers of the peace between the two countries." This article not only deserves consideration, as forming a striking contrast to our shameless indifference for the injuries and insults our own officers and men have actually received, but as laying the foundation for future differences with Great Britain, whenever she shall find it convenient to deny us some stipulated right, under pretence that the treaty has been violated. Though this article professes to be mutual, yet it is evidently without reciprocity; because we have sew or no officers who could avail themselves of it, while our cities are crowded with persons who boast a royal commission: These have, upon every occasion, manifested a disposition to assume airs of superiority and to insult our citi­zens; nor have they been restrained but by the fear of perferal chastisement from lording it over us in our own coffee houses. This article being totally undefined, will be construed by every officer according to his own sense of the respect that he think [...] "due to the commission he bears," and every coffee house [...] must, in future, become the subject of national discussion.

As the treaty appoints no tribunal for ascertaining the r [...] due to a British commission, so also it leaves us in the dark as to the power that is to punish the unfortunate American who fails in the respect due to the swaggering captain of a cu [...], or the fat purser of a frigate; as he is to be considered a [...] orther of the peace of two nation: (to suppose either nation [Page 122]punish him) and he will probably be delivered up to Great Bri­tain to be treated as a pirate.

Let me ask Mr. Jay, what principle of justice or nece [...]ty dictated this article? Do not the existing laws of the country protect every man? Is it not enough that our constituti [...] have organized courts for the special benefit of foreigners, [...] the injury of our own citizens? Did it become us, with d [...] examples before our eyes of the insolence and injustice of [...] ­tish officers, to bury in silence the wrongs we had rece [...] from them, and enter into special stipulations in their favor.

No. III.

HAVING touched upon the demand, which, under the treaty, we are entitled to make for the loss of property carried off, I have since examined official documents, to wit, the letter of the commander in. chief, and the report of our commissioners, from which it may be fairly estimated, at about one million of dollars. As this was the first infraction of the treaty, and made without the slightest pretence, there can be no doubt of the justice of our demand, as well for interest as prin­cipal, which would raise the aggregate amount to about one million seven hundred thousand dollars. Is it not very extraor­dinary that Mr. Jay should neglect an object of so much mo­ment, while he was so sedulous in loading the United States with the private debts of British merchants? If (which there is the best founded reason to deny) there is really any thing due on that score, surely no better fund can be conceived for its discharge than this well-authenticated claim upon the British government. What makes this omission the more extraordinary, is, that the president, while commander in chief, congress in the year 1783, and at various periods since, and Mr. Jefferson very lately, have uniformly treated this article as very important, insisted upon its fulfilment, and procured such authentic documents of its amount, as to leave Britain without the smallest apology for its inexecution.

The next object of Mr. Jay's negociation was to obtain satis­faction for the insults our national flag had sustained, and re­dress for the injuries done our trade in violation of the laws of nations. These may be divided into two classes,

• 1. Acts autho­tized and ordered by the court of St. James's.
• 2. Acts done by individuals under colour, but in abuse, of those orders.

The first class must, necessarily, govern the decisions of their maritime courts, which, though professing to be [...]aled by the laws of na­tions, always take the direction of the sovereign as the expositor of those laws. Thus, when Mr. Pitt seized, in time of profound peace, all French vessels, and thereby outraged every principl [...] of natural law, the British courts of admiralty found no diffi­culty in condemning them. When, in the same was, to pr [...]ve [...] [Page 148]the Dutch from availing themselves of their neutrality, to acquire the carrying trade, he made prize of every ship loaded with French produce, the courts of admiralty condemned them without hesitation, and justified their conduct by the orders they had received. Indeed it would be a solecism to say, that the king ca [...] [...]rame instructions, and give orders for making prizes, and that his courts have power to over-rule those orders, and punish the subject that obeys them; since it must often happen, that the interest of the state may justify a breach of the code of nations, without its being proper to communicate to the ordinary courts the principles upon which this justification is formed. Accordingly, we find it the constant practice what a new edict is issued, to send it to the maritime courts as [...] rule for their conduct in determining of prize or no prize. And the courts of appeal in prize cases consist of commissioners of appeal, of whom a majority must be privy counsellors (22 Gen. II. chap. 3.) the reason for which is, that their decisions, as judges, may conform to the instructions they give as privy coun­sellors. The second class of injuries, arising from abuses com­mitted by individuals under colour of such orders and instruc­tions, are always corrected (not, however, without a great expense and delay) by the inferior courts of vice-admiralty i [...] the first instance, or by appeal, if their decisions are erroneo [...] This distinction will be important in discussing the 7th article of the treaty. Let us now examine the causes of complaint [...] the subject of the detention or capture of vessels and cargo [...] as arising under both these.

1st. Orders were issued for detaining our vessels going to France, loaded with provisions, even before the war broke out; and we were compelled to part with our property at such prices as the British market afforded, though a better one was open to us in France.

2d. They issued orders to take all our vessels going to France with provisions; and shortly after, in the most perfidious man­ner, without any notice, without even publishing their intention in England, lest we should learn it from thence, instructed their armed ships in the West Indies, to make prizes of all neutral vessels sailing, either to or from the French island. These several cruel and unprovoked attacks upon our commerce, cannot be palliated by any law of nations, however obsolete, and were attended with the following serious evils to this coun­try, for which we are entitled to a national compensation.

1. It dishonored our flag, which is a serious evil to us as a commercial nation; since it is the firmness we manifest i [...] maintaining the respect due to that, which must make the basis [Page 149]of our carrying trade; for who will trust their merchandize to [...]ips which may be violated with impunity?—Who employ vessels from which his property may be ravaged, without the most distant hope, that the sovereign under whose protection he has placed it, will vindicate his rights?

2. The loss of that property which the country would have acquired, had not many been deterred by these measures from entering into this branch of commerce.—As this cannot be [...]ated as the loss of an individual, it must be considered as a general loss by which the whole community is affected, and for which, therefore, the whole community were entitled to a recom­pense in damages.

3. The actual loss of property, first by the detention and limitation of the price of the articles taken, and the still greater loss by condemnation of ships and cargoes, for which nothing was paid.

4. The individual loss of seamen who were discharged from their ships, compelled by force, or reduced by absolute want, to enter into the British service in the West Indies, where great [...]mbers of them died of the diseases of the climate, and the [...]sage of their oppressors. I have already observed that the treaty makes no kind of provision for these worthy and unhappy citizens, or for the families of those that have perished; dis­graceful and unfeeling omission! Besides this loss, for which the individual was entitled to a compensation, the nation might demand exemplary damag [...] [...]r the indignities and actual loss of strength in the de [...]th o [...] [...]oval of many valuable citizens, and the loss of many v [...]sel, at a time, when by their employ­ment, so great a profit would have resulted to the community.

The above enumerated evils were the effect of the express act, and emanated from the special authority, of the British govern­ment. In addition to this, we suffered losses under the unautho­ri [...] acts of individuals, who, in some [...]nstances, plundered and procured the condemnation of vessels that were not liable to capture by the special instructions to which I have alluded. But the number of these were comparatively small; and for these courts of adjudication were always open; and yet, by a most ex­traordinary fatality, Mr. Jay overlooks all these flagrant injuries committed by the British king against the United States as a nation, and for which they are without remedy, but by a nati­onal compensation, and neither asks nor procures any redress.

The nature of Mr. Jay's application is explained in his courtly note to Lord Grenville. This contains no complaint of any of the instructions I have alluded to, or any other, expressive of the injury that one nation had done to the other, but merely in the [Page 150]case of individuals. His words are, that great and excessive injuries have, under colour of his majesty's commission and autho­rity, been done to a numerous class of American merchants, (not to the American nation) the United States can, for repara­tion, have recourse " only to the justice, authority, and inter­position of his majesty." Through the whole of this note, he speaks of nothing further than individual compensation for indi­vidual injury, leaving the two nations entirely out of sight as nations; and indeed if he had intended any thing more, if he had had the instructions I have mentioned, in view, it would have been impossible for him to have made use of so many p [...]e­gyrics on the justice and h [...]anity of his Britannic majesty. In speaking of our seamen (which he doth with such pathos as [...] lead us to hope for some spirited demand in their favor) he con­tents himself with only requesting, that they may be libera [...]l, and unmolested in future, without a word of compensation for the past.—The reply of Lord Grenville is in the same [...] Not a word of the instructions, not a word of apology to [...] American nation, not a word of compensation, except for [...] irregularities committed by individuals, &c. The British [...] i [...] supposed in all these proceedings, to be immaculate. Now [...] us examine the article, and see how completely Mr. Jay su [...]t that he was envoy for a great nation, and sunk into the [...] solicitor of some merchants, whose cause he has managed so [...] as to leave them in a much worse state than he found the [...] since he took from them the protection of their own gove [...] ­ment, to leave them the chicanery of courts in which the [...] instructions that occasioned their losses, must be admitted [...] laws sufficiently valid to justify them.

The 7th article exactly pursues the principles established in the note, to wit, that the United States are entitled to no re­compense; that the government of Great Britain has done us no injury, and that "divers merchants and others" only have to complain of the irregularity of some captures and condem­nations, which it supposes the courts of admiralty are, for the most part, competent to decide upon. But that if it should hap­pen, that there are any losses for which adequate compensation cannot be obtained, provided that the party claiming has been guilty of no neglect or delay, such compensation shall be ascer­tained by commissioners, and his Britannic majesty engages to pay them. As this article says nothing about opening the courts, it must have been understood by both parties, that they were necessarily open, independent of the treaty; so that all the ad­vantage, if any, that may result from appeals, were rights that individuals in every civilized nation may claim, and which ma­ny [Page 151]had exercised before Mr. Jay's mission. In this respect, then, nothing was effected by his negociation, unless it was, that the time for bringing appeals is said to have been enlarg­ed; but of this, the treaty says nothing; this too, must there­fore, depend upon the will of the king of Great Britain, or on the rules his courts chuse to establish. All that Mr. Jay has then done in this important business, that involved the honor of his country, the great interests of its commerce, the rights and liberties of its citizens, and the property of individuals, many of whom have been ruined by the loss of their capital, is to obtain a promise of compensation in such cases as are so sin­gularly circumstanced as not to be within the reach of legal re­dress. When we come to view this article, stripped of its unne­cessary verbiage, it will appear to mock with delusive hopes, the men that it affects to relieve. Let us enquire what is to be the business of the commissioners, and of what nature and kind the causes that are to come before them.

They are not to relieve against captures under the order of April, November, or January. 1st. Because neither of these are complained of, and the preamble of the article expressly re­ [...]es to the [...]njuries "divers merchants and others" complain of having sustained by irregular captures or condemnations of their vessels and other property under colour of authority and commission, &c. Now it would be absurd to suppose, that this can have any reference to what is done by the express order of the sovereign, or to any act but such as is an abuse of that or­der and authority; but these abuses make but a small part of our cause of complaint (which goes to the order itself) and are besides necessarily relievable in a court of appeals, without the intervention of a minister extraordinary; and were so before the treaty. The great cause of complaint, the instructions, which are the laws of the court of admiralty, not being complained of, all condemnations fairly made under them, must be con­firmed by the treaty. What then are the commissioners to do? They are not to revise the decisions of the courts; they are not [...] interfere where the injured party has neglected to appeal. The decrees of the courts are to be absolute with respect to them; nor can they, as far as their powers may be collected from the treaty, bind the crown of Great Britain in any case whatever, in which the party claiming the benefit of their de­cision does not first show that he has commenced and carried through his suit in the British court of appeals, that their de­cree was in his favor (for without doubt their judgment is meant to be conclusive, or else the commissioners would only be a second court of appeals, which would be a solecism not [Page 152]even hinted at in the treaty or preceding negociations) that th [...] captor is insolvent; that his securities have been prosec [...] [...] judgment, and that they are also insolvent, in this case; a [...] this appears to me the only possible case in which the comm [...] ­oners may [...]ind the crown to pay what has been recove [...] its courts.

Now I would ask any man who reflects a moment [...] delays of the British courts, and on the maze of law, whi [...] must be had, before a single cause can be brought before [...] commissioners, whether the whole article is not a moc [...] justice, whether any cause can be ready for this tribunal in [...] years, though by the limitation expressed, the claims m [...] entered within eighteen months, and whether it would [...] much cheaper for the United States to pay the sew person [...] may possibly be relieved by this mode, the amount of their [...] ­ses, than load themselves with the expense of so useless a [...] ­mission?

No. IV.

HAVING stated, in the preceding numbers, the [...] ­ing national points, which were supposed to m [...] object of Mr. Jay's negociation; having shown that the [...] leaves the greatest part of them untouched, and seals a [...] of indisputed rights, in order to procure, in return, a [...] for the surrender of our own territory at a distant day, [...] nugatory engagement for compensation to a few sufferers, [...] cases may be peculiarly situated; while the rights of the [...] the great mass of the merchants, and the whole body of men are shamefully abandoned; I proceed now to cons [...] treaty in a commercial point of view, in which I am [...] say, we shall seek in vain for some advantages to comp [...] these disgraces; some proof to testify the assertion of our e [...] that "the United States confide in his majesty's justice [...] humanity." The same gloomy features distinguish every pa [...] it, whether it is seen in a commercial or economical view: [...] merchants, our seamen, our manufacturers, our citizens, [...] allies, our government, and our honor, all are treated [...] equal contempt. But one interest seems to have been atten [...] to, throughout the whole negociation— the interest of the B [...] ­nation; such setters are put upon our own, that our envoy [...] ­tainly intended that our ministers should hereafter say, wi [...] truth, what he had only intended as a proof of his p [...] [Page 153] [...]ddress, "that the United States can, for reparation, have [...]ecourse, only, to the justice, authority, and interposition of his majesty." Little means, alas! will be left them for the ex­ [...]ise of their own authority, if this treaty should ever become [...] law of the land.

In considering the commercial articles, I shall begin with the [...]dian trade, after having submitted a few rules, to the force of which every well-informed man will readily subscribe.

1st. That, all things else being equal, that trader who has the greatest capital, most knowledge of trade, an established set of customers, and the most extensive acquaintance with the dealers in the commodities he buys and sells, will be able to maintain himself against any rival merchant that does not enjoy these advantages.

2d. That if, in addition to this, he has advantages in the transportation of his goods—in the sale of the commodities he purchases—and in the establishment of factories—he must ruin all competitors. By the treaty of peace, our boundaries are fixed, and the British are to evacuate our territory without any stipulation, whatever, in favor of British merchants or traders; by this treaty, therefore, so much of the fur and peltry trade, at least as lay within our own territory, was necessarily and exclusively ours; as we possessed all the posts at which the trade had been carried on for a century past, and most of the port­ages. As our communication from the sea was much easier than by the St. Lawrence, we could furnish English goods cheaper, and, of course, would have continued the Indian trade in its usual channel, even from the British sides of the lakes, nor could [...]y, by any means, have prevented it, without giving such disgust to the Indians as would have made them dangerous neighbours.

Lord Grenville's treaty with Mr. Jay stipulates, that the British traders may continue to live at our posts; to hold the property they possess; to trade in every p [...]rt of our territory as [...]ly as our own citizens; and to navigate our rivers from the s [...] as high as our own citizens may, that is, to the highest port of entry, and from thence to navigate our inland waters. It must follow, then, that under these cirumstances, they stand exactly upon the same footing with our own citizens. It will also be admitted, that having been for twelve years in the ex­clusive possession of the Indian trade—having, in general, much larger capitals—having an extensive acc [...]aintance among the Indian nations, and with the Canadians, who are the general carriers in that country, American traders will not be able to maintain a competition with them, even if they had no other [Page 154]advantages than those I have enumerated. But this, unhappily, is far from being the case; first, they have, of course, a right to settle factories in every part of their own territory; their factors being always upon the spot, and cultivating an acquai [...] ­ance with the natives, will certainly be able to command the trade of their country, and thus render absolutely useless the stipulation which admits American traders to travel into that territory; for it is observable, that the navigation act, 12 Charles II. chap. 18, which is preserved in full force, by the 14th article of the treaty, prevents our establishing any factory [...] trading house, or residing as merchant-factors within the [...] ­tish territories, out of Europe; while the treaty permits the British to reside in any part of the United States; to hire and possess houses and ware-houses for the purpose of commerce, &c. so that while, by this means, they have an exclusive trade in their own territory, not withstanding the apparent grant of a right to us, they have all the advantages our citizens enjoy [...] ours, with those they have acquired from large capitals, know­ledge of the trade, &c. Our trader may, indeed, travel, like a pedlar, through their country with his shop upon his back; but cannot have any fixed residence at which to open a sto [...]. Were not Mr. Jay a chief justice, I should be tempted to be­lieve that he did not know of the provision of the act of 12th Charles II. chap. 18, which he has kept in full force by [...] 14th article of the treaty.

This exclusive trade in their own country, by means of the factories they may establish, gives them another considerable advantage; it is well known to merchants, that the more [...] ­tensive any branch of commerce is, the less liable to interrup­tions, the more profitable it must be, and of course, the be [...] it enables the trader to undersell his competitors. If then ou [...] merchants can only trade in our territories, and there with, [...]o advantage over the British—and if the British merchant can trade with equal advantage in our territory, and superior in the British territory—the last can employ a greater capital in his commerce; and as the Indian trade is liable to frequent inter­ruptions by wars and bad seasons, which may prevail in our country, while that of the British is unmolested, the whole capital of our trader remains inactive, while a considerable part of that of the British trader is employed. This again must rea­der the competition very unequal.

A writer who has shown much more anxiety to maintain, than candor in defence of, the treaty, has overlooked all these circumstances which will effectually prevent our traders from contending with the British, and which, i [...] fact, amount to as [Page 155]absolute surrender of this important branch of commerce, and consoles us with the hope of being able to find a market for East India goods, through the intervention of this treaty. I must confess, that I have yet to learn, that any East India arti­cles consumed by the Indians, on the north of the lakes, will exceed one hundred dollars a year; perhaps the writer means, that the inhabitants of Canada will receive them through this channel; if we should even admit this, which, however, we shall be able to show is highly improbable, yet it would appear a very insignificant advantage, when we reflect that the whole number of inhabitants in Canada, and Labrador, as appears by a census, taken by General Haldiman, amounted, in 1784, including Upper Canada, to only 123, 082 souls: but few of these are in the habit of drinking any tea, and all are too poor to consume any but the coarsest articles; so that the whole con­sumption of Canada, in India goods, if we had a monopoly of that trade, would fall short of what is consumed in the little state of New Jersey; and we should certainly make a miserable exchange, if for this we sacrifice a branch of commerce of such immense importance, as the Indian trade.

But what can be more absurd than to suppose that articles which come duty-free from Britain (a drawback being allowed on exportation) and are carried into the heart of the settled parts of Canada in the same vessels that bring them from Europe, cannot be sold cheaper than the same articles, subject to a heavy duty, and carried an immense distance by land, and an expensive inland navigation? this indeed may not apply to the upper posts; but who are the consumers of East India articles in those cold, poor, and barren regions?

In short, the more any one considers this article, the more fully he will be convinced, that it contains a complete and ab­solute surrender of the fur trade, the greater part of which we might have exclusively possessed under the treaty of peace, had not Lord Grenville prevaried on Mr. Jay, to introduce a rival who will always be too powerful for us. And what ren­ders this circumstance the more peculiarly oppressive, is, that this article is to be permanent; Lord Grenville was too sensible of its importance, to permit any time or circumstances to un­loose these galling fetters.

This article is not less exceptionable in a political, than in a commercial, view. We know from sad experience, the cost and danger of Indian wars; we know, too, from the same experi­ence, that they can be, and have been, fomented by Britain, whenever her interest or her malevolence prompted her to dis­tress us. By permitting the British [...]der [...] to remain amongst [Page 156]the Indians, and to extend themselves to every village, we add to their influence; and by the terms of the 26th articie, are prohibited from expelling them, even in case of war with Britain herself, unless their conduct should render them suspected, and not even then in less than twelve months from the publication of the order. What but the blindest infatuation could induce our minister to stipulate that a secret, nay, even an open enemy should remain without restraint among savages, whom the slightest circumstance stimulates to war? Did we not know what we formerly should suffer from a few Canadian priests and traders residing among the Indians, and how many endeavours were used by the government, to get the Six Nations to [...] them? It will be said, this article is reciprocal, and that [...] their agents remain within our lines, ours remain also wi [...] theirs: this, however, is not the fact; for if at any time a war should break out, our traders (if we should have any, which I much doubt) will, for their own safety, retire from places [...] remote as the British territories; besides that, not having any right, as I have before shown, to reside within the British [...] ­ritories, out of Europe, which is expresely prohibited by the [...] vigation act, and no such right being given by the treaty— [...] must follow, that no American merchant or trader, not set [...] in Europe, can have the least benefit by this provision; wh [...] hundreds of British emissaries may, under the pretence of tra [...] maintain the most dangerous stations in the heart of our coun­try. What, fir! Is it not sufficient to have abandoned our [...] men without having a compensation for their injuries? [...] the unhappy farmer, when the care and attention due [...] growing family compels him to relinquish the charms of foo [...] and retire to labour and solitude in distant forests, must [...] pains, too, be aggravated by your treaty? Must artful emissa­ries, even of an open enemy, be permitted to stimulate savages, too ready of themselves, to bloody deeds? Must every land as well as every sea, witness the apathy with which the liberty and lives of our best and bravest citizens are abandoned?

No. V.

I AM at some loss to understand what is intended by the following word in the 3d article—"And in like manner, all goods and mere [...] [...] whose importation, into the United States shall not be [...] prohibited; may freely, for the pur­poses [Page 157]of commerce, be carried into the same, in manner aforesaid, by his majesty's subjects; and the same shall be subject to no higher, or other duties, than would be payable by the citizens of the United States on the importation of the same in American vessels into the Atlantic ports of the said states." The manner aforesaid, alludes to the former part of the article, which gives the British a right to navigate our rivers from the sea to the highest ports of entry for foreigners, and from thence by land into the Indian country. The only natural construction of these words, is, that the British shall have a right to import into the United States upon the same terms as Americans; and yet I can hardly conceive that Mr. Jay could intend, in the face of a law of the United States (Act making further provision for the payment of the debts of the United States, chap. 39. sec. 2.) which imposes an additional duty of ten per cent. on ar­ticles imported in vessels not of the United States; I say, I should hardly conceive that he should presume to enter into such stipulation directly in the face of a law of the United States, and that, too, in favor of a nation whose navigation act is at war with our commerce; did it not breathe the same spi­rit with the 12th, 14th, and 15th articles, all of which strike directly at the navigation of these states. Nor do I know any other construction that can possibly be put on the words, which I have stated at large, that every reader may judge for himself. It is, however, possible, that Mr. Jay may have intended (for never was a public instrument drawn with less precision than the one before us) that this provision should only extend to goods brought in for the purposes of the Indian trade; yet how the words can be made to bear this co [...]ruction, I am at a loss to conceive. But should even this be admitted to be the true meaning, it will again prove the extreme solicitude of the framers of the treaty, to secure to the British the whole benefit of the Indian trade; without this article, goods might be pur­chased of our merchants, for the purpose of this commerce, which would, on account of the ten per cent. difference, have been imported in American vessels; but this slight advantage, it seems, was deemed too much for the sacrifice of the whole profits of the Indian trade. It is therefore stipulated, that the British shall navigate our rivers to the highest port of entry for foreign vessels, and that upon this construction they shall pay no foreign duty for the articles they import; so that all that the British merchants will have to do, will be to establish factories at the ports of entry, and under pretence of the Indian trade (if it should be thought that the words should be confined to that) import in British bottoms, upon the same terms as we d [...] [Page 158]in our own ships: and as by the 15th article, our vessels at to pay a duty, which is to countervail the duty paid here b [...] the British, that is, ten per cent. every article imported th [...] way, as Indian goods, will yield ten per cent. more profit to the British merchant, taking the outward and homeward voy [...] into consideration, than it will to the American, and the a­venue law be eluded. But supposing it possible to prevent the [...] goods so imported into New York, for instance, and there [...] on board river vessels, and from thence carried by land and by inland navigation for a considerable distance, from being [...] before they get into the western territory; yet even then this provision must operate as a bounty on British vessels, in p [...]eser­ [...]ce to all other foreigners, and as an encouragement of ten per cent. in favor of the British merchant, who carries on the Indian trade, to the prejudice of our own commerce and [...] own revenue. Thus, to make myself more fully underst [...], a British merchant sends in his own ship, articles intended [...] the Indian trade, or indeed any other, under that pretence; be has a right to enter them without paying any other duty th [...] the American does; and his return cargo pays no duties is England. The American merchant ships in his own vessel the same articles, on the same terms; but by the general operation of the 15th article, Britain has a right to lay on the return [...] go a duty of ten per cent. The words of the article are, " [...] the British government reserves to herself the right of impos [...]g on American vessels, entering into the British ports in Eu [...], a tonnage duty equal to that which shall be payable by British vessels in the ports of America, and also such duty as may he adequate to countervail the difference of duty-now payable [...] the importation of European and Asiatic goods, when import­ed into the United States in British or American vessels." If, then, against all obstacles, the American merchant should carry on the Indian trade, will he not, by this circumstance, be com­pelled to import and export in British vessels? By the 12th article, British vessels may import into the United States from their islands, without paying greater duties than the Americans; this again is in direct opposition to a law of the United States above cited.

By the same article, our boats of 70 tons, which his majesty consents (for it seems this article is a gift and bounty of his ma­jesty, and not, like the rest, matter of agr [...]ement) are also to pay an equal tonnage duty in the islands with that the British pay here. Now I would ask, if it is possible to devise a more effectual way to put the whole West India trade into hands of the British?

[Page 159] 1st. They pay only American duties. 2d. As the American must pay in the islands, what tonnage the British pay here, the tonnage would be exactly even; but as the American ves­sel also pays a tonnage duty in our own ports of 6 ce [...], which the British do not pay in their own islands, it must follow, that the British carrying on the West India trade, will pay 6 cents less tonnage upon the whole out and return voyage, than the American; and as four voyages may be made in a year, the American will pay in the course of the year, 24 cents per ton more than the British ship, though the ship is unlimited as to sue, which we know to be an important circumstance in the cheapness of navigation; that our minister should not be con­tent to put the British upon a par with the American, in the [...]ice of existing laws, and laws too that cannot be altered, be­cause they are pledged for the discharge of the funded debt, seems so monstrous a misdemeanor, that it will hardly be believed even by those who have read the treaty over with attention.

I therefore transcribe the very words; "and the said Ameri­can vessels shall be subject there to no higher tonnage, duties or charges, than shall be payable by British vessels in the ports of the United States." Now British vessels pay a tonnage in our ports of 50 cents, which, according to the express words of the [...]eaty, we must pay in their ports, in addition to which, by our own laws, our vessels are subject to a tonnage of six cents; so that when the British pays fifty the American will pay fifty-six cents per ton upon his outward and homeward voyage, that is, fifty under the British law, and six under our own. If, in addition to this, i [...] is considered that the British are em­powered to settle as factors or merchants in all our ports, and not even to be molested in case of a war, and on the other hand it is expressly prohibited by the British navigation act, for Americans to settle or establish a trading house—if it is also considered, that any British ship having carried out her cargo, may be governed by circumstances, and go where she chooses for a better market, while the American must necessari­ly return to our ports—it will follow, that the whole trade of the British West Indies must be carried on in British bottoms, and our merchants either be precluded from this trade, or consent to act the humble part of factors to British merchants: the vessels formerly employed in this trade, must necessarily [...]ot at our wharves, and our seamen be turned over to Great Britain, to support her commerce, and, whenever she thinks proper, to plunder and distress our own. It may be said, that we have at present no West India trade but by permission;— [Page 160]but it should be recollected, that that permission grows out [...] the necessities of the islands; that it always existed in s [...] shape; that during the war their ports must be open to us, a [...] probably for two years after, till the wan [...]s, occasioned by the war, are supplied; so that this article extends only to the vert period in which we may presume with certainty upon th [...] commerce on fair and equal terms.—Were it even otherwise as it is now notorious that the islands cannot subsist without us, by prohibiting their ships from carrying articles that they cannot do without, it would necessarily follow, that they wo [...] be compelled to open their ports to us, upon our own terms But at all events, we must be very considerable losers by thi [...] treaty; for supposing that trade would, independent of the treaty, have been carried on in British bottoms, we then gain­ed, at least the 10 per cent. the foreign duty on their import which duty would operate as a bounty upon our trade wi [...] other foreign West India islands, as well as similar articles im­ported from the East Indies, and thus contribute to extend [...] navigation and commerce in one quarter, while it restrai [...] i [...] in another; we should, indeed, by this means, have less of the produce of the British islands, but more of the produce [...] other countries; our exports to the British islands would [...] ­nue as they were, because they could not do without the [...] our imports from them would diminish, and the foreign [...] ­kets from which we supplied the deficiency of British s [...] &c. would afford an additional market for exports. But al [...] the evils of this article do not even stop at the point I have mentioned. By this treaty, we are not only to lose the bene [...] of the trade with the British, but also with the French i [...] who now kindly open their ports to us; by the second article of our treaty with France, we mutually agree, that neither will "grant any particular favor to other nations, in respect [...] commerce and navigation, which shall not immediately bec [...] common to the other party, who shall enjoy the same save freely, if the concession was freely made, or on allowing [...] same compensation, if the concessions were conditional." The French, then, the moment this treaty is ratified, have a right [...]n case they admit [...]s to visit their islands with vessels of seve [...] [...]ons, to come to our ports, free of foreign duty upon the [...] ­ [...]les they import, and may also impose a tonnage duty of [...] [...]s on our vessels, and of course navigate to and from o [...] [...] cents cheaper than our own vessels; and can [...] after the causes of disgust which this treaty will gi [...] th [...], that they will delay a moment to exchange our free trade [...] [...]ands, into that [...]me [...]omm [...]ce which we me [...], [Page 161]accept as a bounty from Britain? Lord Grenville, however, con­ceiving that the transfer of our whole West India trade and na­vigation, was not sufficiently ruinous to our commerce, asks and obtains from our polite envoy, in return for his majesty's condescension in accepting so great a part of our trade, that we would also prohibit the exportation of melasses, sugar, coffee, cocoa, or cotton, in American vessels, either from his majesty's islands, or from the United States, to any part of the world, reasonable sea-stores excepted. The few apologists that the treaty has yet found, affect to believe, that the restriction is to be confined to such of the above articles as are imported only from the British islands; but the words are express, "that the United States will prohibit and restrain the carrying any (not any such) melasses, &c." and the reason they will urge in defence of the only true and obvious construction, would be, that as one cask of coffee cannot be distinguished from another, if any was exported, that which came from their islands would be exported; and thus we would, in this circuitous route, ac­quire a certain proportion of the carrying trade. That this is a part of a general system for the ruin of our navigation (Bri­tain always having dreaded us as a rival) will appear from the instructions for armed ships, of the 8th of January, 1794, which remain unrevoked, and, as far as we have yet learned, uncensured by Mr. Jay. By that their armed vessels are instruct­ed "to bring in for lawful adjudication all ships with their car­goes that are laden with goods, the produce of the French West India islands, for any port of Europe." How then stands our trade as to the exportation of those important articles? 1st. We are not to ship them from the French islands 2d. We are not to ship them from the British islands. 3d. We are not to ship them from the United States. From the East Indies we cannot ship them; because the East India cargoes being assort­ed for our markets, must first land here, after which, by the tenor of the treaty, we are not to re-ship them; nor can we even ship the cotton which is the product of our country; the prohibition being express, that we shall not export any. Now let us see the amount of the exports, and determine how far it is wise to lay ourselves under these humiliating restrictions.

• Cotton exported 138, 328 lbs.
• Coffee 2, 136, 742
• Cocoa 6, 000
• Brown sugar 1, 122, 156
• Loaf duto 21, 760
• Melasses 12, 340 gals.

[Page 162] Humiliating as this article is, when I come to consider the 14th and 15th articles, it will appear, that neither this nor the loss of the Indian trade, are the severest blows aimed by this treaty, at the commerce and navigation of the United States.

No. VI.

HAVING had occasion to show, in considering the treaty in a mere commercial view, that it contained an express relinquishment of the Indian trade; that it placed the West Indian commerce upon so disadvantageous a footing, as to ren­der foreign nations our carriers, not only in that trade, but in the exportation of many articles (as sugar, cotton, coffee, cocoa) that we might import from the West Indies, or raise among ourselves; I proceed now to show, that our vessels will become equally useless in the European trade, if the treaty goes into effect. By the simple operation of her navigation laws, Britain had possessed herself of almost the whole of the carrying trade between the United States and her dominions. From October 1789 to September 1790, both inclusive, the amount of ou [...] exports to Britain and her dominions were of the value of [...] millions three hundred and sixty-three dollars; and our imports from thence, upwards of fifteen millions two hundred thousand dollars; making, together, upwards of twenty-four millions five hundred thousand dollars, on which commerce we paid Britain a balance of near six millions, while we gained from hence a balance of more than two millions and one half; yet this immense trade with Britain only employed 43, 580 tons of American vessels, while the trade to France employed 116, 410 tons, though our trade with her was less than one-fifth of our trade with Britain. The extreme injury the United States sus­tained by thus suffering a foreign nation to run away with their carrying trade, and, of course, cutting the sinews of their commerce and maritime strength, was urged as the best argu­ment for the formation of the federal government; as, by that means, we should acquire the means of making restrictive laws upon the commerce of nations that oppressed ours. We accord­ingly find, that very early after the formation of our govern­ment, tonnage duties were imposed upon foreign vessels; and the immediate effect of them was to add new vigor to our navi­gation; it will appear by the present state of our tonnage, [Page 163]compared with that I have given, that, under the operation of this law, we were progressing so fast to a considerable degree of rank among maritime nations, as to incur the jealousy of that ambitious and selfish people, who fancy themselves the lords of the ocean, and consider every other that attempts to navigate it, as intruders upon their rights. To this cause we must attribute, in part, the various attacks that they have, from time to time, made on our commerce; it remained, however, to give it the fatal and final blow, which should put it out of our power to carry for ourselves or others: and the honor of effecting this was reserved for our envoy extraordinary, and a majority of that body to whom the states had confided our dearest rights. I have already observed, that the 12th article, taken together with the instructions of the 8th of January (at this moment in force) effectually precludes us, not only from the carrying trade of British or French islands, even though France has generously admitted us to carry from hers on the most favorable terms, but has actually cut off the carriage of our own commodities and certain others, of foreign and domestic growth, from our own states; and that the trade of India-goods is so managed also, as necessarily to fall to the share of Britain, to the exclusion of ourselves. Let us now see on what footing our European trade will stand: 1st. In time of peace, and next, when Britain shall be at war. By our tonnage and reve­nue laws, our ships had an advantage in the trade to Britain, of 44 cents the ton; and the discriminating duty of near 10 per cent. operated as a premium upon our own shipping; yet even this by no means countervailed the effect of the navigation law, and other restraints upon our commerce. But still under the operation of these statutes of the United States, our trade and navigation flourished, and was increasing; and as we reserved a right in our own hands, in case of new burdens, to impose further duties upon those that injured us, we had the most perfect security against any further legal attacks upon our commerce. Because, such was the nature of our commodities as to be essential to the nations with whom we dealt; while a variety of markets could furnish upon nearly equal terms, those that we wanted. To Britain we paid an annual balance of near six millions of dollars: which she must necessarily, and perhaps for ever, have lost, if, by a commercial warfare, she diverted it into any other channel. What, however, she did not dare to attempt openly by her laws, she has fully effected by her treaty.

By the 14th and 15th articles, we agree, that she shall im­pose upon our American vessels, a tonnage duty, equal to what her ships pay here; that the shall also impose a duty which shall [Page 164] countervail the foreign duty on American vessels. At first vie [...]; this appears to be just; for why, say the apologists of the treaty, should she not impose upon your trade the restrictions you im­pose on hers? Does not France reserve a right to do the same? Undoubtedly; had the article stopped at this point, it would have been perfectly just; and the navigation of each nation would have then depended upon the means they respectively had of building, victualling, and sailing their ships, which is exactly the case between us and France. But unfortunately the articles referred to, while they affect to be reciprocal, leave in full force the British navigation act, and all their other re [...] ­tive laws, by this artful appendix to the 14th article, to [...]: "But subject always, as to what respects this article, to the laws and statutes of the two countries respectively." Had the matter even rested here, it might again have been recip [...] (though extremely unwise on our part) since, while it lest the British trade laws in force, it also lest ours in equal force. But this was not the intention of the contracting parties. Wor [...]s of reciprocity were very well to make a parade with; they would deceive the ignorant and super [...]cial reader; but the greatest p [...]i [...]t was, while it preserved to Britain the navigation and co [...] ­cial acts, by which they have raised their commerce at the [...] ­pense of other nations, to beat down the barriers with which we fenced ours, and even to take from us the means, by [...] future arrangements, of preventing the ruin of our trade.

Mr. Jay, therefore, agrees, in the 14th article, that all [...] laws, as well as those of Britain, shall remain in force; but in the 15th article he evades the provision so far as respects us, and expressly stipulates, that we shall lay no additional charge upon Britain to contervail her navigation and other restrictive laws; but that she may, while she preserves them in full force, impose a tonnage and other duties to contervail those we had imposed, in order to enable us to bear up against them. I ask them in what this article is reciprocal? Britain had alrendy gone as far as she dare go, in oppressing our trade, and now consents, if we will permit her to continue all the burdens she has im­posed upon us, and at the same time agree to let her lay such others as she thinks equivalent for our having presumed to relieve ourselves, that she will agree with us that no further partial curies shall be imposed by either. Let us enquire into the effect of these articles upon our commerce and national character.

1st. As it is obvious, that the present flourishing state of our navigation, is, in a great measure, owing to the operation of the laws I h [...]ve m [...]n [...]oned; it must follow, that whatever countervails the [...] of those laws, must [...] it back to the [Page 165]state in which it was. Now, as the profits of every voyage are calculated on the outward and homeward voyage, if we pay in the British dominions exactly what they pay here, the charge upon the whole voyage is the same. If then, previous to the passing our tonnage laws, the British, by the operation of their navigation laws, had such advantage over us, in our own com­merce, as to employ two hundred and thirty thousand tons of their shipping, as they did in 1789; while the whole of Ameri­can shipping employed in the trade with Britain and its domi­nions, amounted, in the same year, to only 3, 580 tons, less than one-sixth part of the whole quantity engaged in the inter­change of commodities between the two nations—it must fol­low, that we shall again be reduced, in consequence of the treaty, to our former humiliating situation; our seamen must go into the service of the nation that is again to navigate for us; and our ship-builders, and the numerous trades connected with them, must starve, or seek some other employment, since our merchants will no longer have occasion for ships, and the Bri­tish merchants are not permitted to use those we build. It is ob­servable, too, that the tonnage duty, which Britain is to lay, is not a countervailing duty, like that on goods imported, but is to be, in the words of the article, " equal to that which is paya­ble by British vessels in the ports of America." Now foreign vessels pay 50 cents here; of course, 50 cents may be imposed on our vessels in Britain; but our own vessels also pay six cents a ton at home, so that on every voyage to the British dominions, and home again, they will pay 56 cents, while the British pay only 50; and as the voyage may be performed three times a year, the American ship will pay on the whole, 18 cents a ton annually more than the British; and it may be a question, whe­ther we have any right to repeal the law laying the home duty, as it was imposed and enacted when the treaty was made and ratified, and as the repeal would put the British vessels in a less advantageous situation than they were in at the time the treaty was made. But the discour [...]ement does not rest here, except so far as our trade may be co [...]sined to the city of London; for in every other port we pay an [...]tra light money of 1 s. 9 d. ster­ling a ton, which is about 39 cents; so that an American vessel going to Bristol, Liverpool, &c. and returning, will pay (be­sides the 50 cents the British are to impose [...] 6 cents Ame­rican tonnage, and 39 cents extra light money, that is, 45 cents more a ton than a British vess [...] [...] same voyage, and which in three voyages, or one year, will amount, on a vessel of 400 tons, to 540 dollars, extra charge on Ame­rican vessels. Thus then we give an annual and no inconsidera­ble [Page 166]bounty to British vessels, to the prejudice of our own navi­gation. I believe that this is the first instance in the history of nations, in which a commercial one has given greater encou­ragement to foreign ships than to her own. But the evil d [...] not stop here; equalizing duties are to be imposed, what these are to be, is not ascertained by the treaty; but as the power to impose them is reserved to the British parliament, what is to prevent their exceeding their just measure? But supposing they are really inclined not to go beyond the right reserved by the treaty, what is to be the rule of that right? The duties we im­pose upon their commodities amount to 12 per cent. on the India, and, at the average, to about 10 per cent. on other [...]i­cles. Are they to lay a duty which will amount to a mean of the relative quantities of these articles? if they are, how i [...]i [...] to be found, as the relative proportion between the importa [...] of these articles is continually fluctuating? or is the coun [...] ­vailing duty to amount to as much on the whole of the arti [...] imported from the United States, as the whole duty paid a [...] foreign articles imported in British ships into the United St [...]? this seems to be the true construction of the article. If so, [...], as our imports from the British dominions, exceed our exp [...] to them by more than one third, and supposing the average of the duty they pay here to be 10 per cent. the duty upo [...] exports, if carried to any of the British dominions, in Ame [...] vessels, must amount to 15 per cent. otherwise the whole [...]y will not be equalized. The advantage that this will give to [...] ­tish ships over ours, particularly when they bring our cheap and bulky articles, or such as pay no duty, is too obvious to [...] upon. But this is not the only effect of this equalizing d [...]; as Britain has a right to choose the articles on which she may impose it, she has in some sort the regulation of our trade, so far as it may be carried on in American vessels; thus, suppose she should put the greatest part of this equalizing duty upon the most bulky articles, it would necessarily follow, that those articles must either rot on our hands, seek another market, [...] go in British ships, which would pay no duty at home. Could a more effectual way be devised to exclude us absolutely from carrying our own commodities? It may be said, that, independ­ent of the treaty, Britain might have imposed these duties; true, and independent of the treaty, we might have met her with other duties.

2d. As the British must necessarily be the principal carrie [...] between us and their dominions; so they will be, in a great measure, the carriers between us and foreign nations: because, while by their navigation act they absolutely forbid us to enter [Page 167]their ports with any commodities not the growth and manufac­ture of our own country; they bring the commodities of other nations upon the same terms as those might by whom they were raised; and they can take back a return cargo to Britain, or its dominions, with greater advantage, than we can carry our own produce, by the whole difference of the tonnage, and countervailing duties, with six cents more added, if they return to London, and 45 cents if to any other port in the British dominions; and from thence again return with British commo­dities to the original port. It is evident, that the benefits attend­ing such privileged ships, must give their owners great advan­tages over others; and as they can only be held by British sub­jects, who are by the terms of the treaty to be in every respect upon a footing with our own merchants, while they enjoy all those additional advantages as British subjects, it requires no great foresight to discover, that the whole trade of America must be engrossed by them. Nor does it require much more, to see that the leading objects of this treaty are, to establish the navigation and commerce of Britain upon the ruins of our own—to fill the Atlantic ports, and the western territory, with British merchants and factors—to establish a certain degree of rank for British officers, whom the humiliated American is di­rected, under pain of being "confidered as a disturber of the peace of both nations, to treat with the respect due to his com­mission;"—to put such setters upon our legislature as would for ever bind them to the will of that imperious nation—to disgust our republican allies, and leave us only to the justice and humanity of the man who has urged our slaves to cut our throats—savages to murder our women and children—Barbarian pirates to enslave our mariners—and his own banditti to profane our churches, burn our dwellings, and rob, plunder, and massacre our citi­zens. If we compare this treaty with many speeches, made about the period of Mr. Jay's appointment, with the support he has avowedly received from the British faction, with the warmth with which he engaged in the controversy between our government and the French minister—if we add the readiness that ardent or vindictive men feel, to suppose every thing right, which strengthens their party—we shall be less surpised at the treaty contravening the existing laws of the country, where they bore hard upon the British, or its giving them such addi­tional encouragement as should induce them to pour in their myrmidons to support and strengthen the hands of government, against native Americans, and the friends and well-wishers to foreign and domestic republics—whom the courtiers have dared to calumniate with the names of antifederal and jacobin.

[Page 168] Mr. Pinckney informs us in his letter to Mr. Jefferson, that Lord Grenville, in stating the principles on which they had issued the instructions of the 8th of January, 1794, made use of these terms, "the second was one, that he [Lord Grenville] could not mention to me officially, but that he still thought it right I should be apprised of, that no misconception of their mo­tives might be entertained; that he was aware of the delicacy of speaking to a foreign minister, concerning the internal state of his country; neither could he expect an answer from me on the subject. But that the second reason was, to take away eve­ry pretext from evil-disposed persons among us [the citizens of the United States] who, according to the intelligence he had re­ceived, were endeavouring to irritate our people against Great Britain, as well as to oppose the measures of our own government, and in short, to reduce us to the present situation of France." It is evident from this communication, that Lord Grenvi [...]e sup­posed that all those persons in America, who felt for the [...] of their country—who were irritated at the piracies of the British, and the insults and injuries we had suffered—which, I believe, included every native American not holding an office, a seat in Congress, or money in the funds, were the oppos [...] of our own government.

As the instructions alluded to, directed the taking our [...] going from the French West Indies to any port in Eu [...] Lord Grenville must have conceived, that the way to strength­en the hands of our government, was to destroy our commerce-imprison our seamen in unhealthy climates, and lessen our [...] ­nection with France; the whole was evidently thrown out [...] Mr. Pinckney, to induce him to enter into conversation with him on the subject of such a convention between the two go­vernments, as should engage America in a war with France, permit Britain to plunder our trade, and in return lend her aid for the support of our government.—The whole speaks this plain language, "the friends of Britain in America, are the friends of your government; the enemies to British depreda­tions are the enemies of your government, and Jacobins who love the French; let us make a common cause of it; we can mutually assist each other." Mr. Pinckney was too prudent to enter into any discussion with Lord Grenville on this delicate subject; I hope Mr. Jay has been equally so.

That the cause of the treaty, and the cause of Britain, have gone hand in hand in this country, will not, however, be dis­puted, by those who know the birth, patronage, and affections of its advocates; and as this dangerous instrument has a ten­dency to destroy our connection with France, to cut the sin [...] [Page 169]of the national strength, to compel us to rely on Great Britain, and to import supporters of our government from thence. we cannot doubt its being the offspring of a preconceived system.

No. VII.

"THERE shall be," says the 14th article, "between all the dominions of his majesty in Europe, and the territories of the United States, a reciprocal and perfect liberty of commerce and navigation," &c. I am a little surprized that the words reciprocal had not smote Mr. Jay's conscience, when the very sentence in which he uses it, holds forth partial advantages to Britain, and none to America. Why must all the territories of the United States be laid open to British mer­chants; whilst ours are confined only to the spot precisely on which they find no interest in settling? Were we permitted to settle and carry on trade in the East or West Indies, on the footing of natives, many would find an interest in availing themselves of it. But what American merchant will think of establishing a mercantile house in England, unless in partnership with a native of that country? in which case the article is use­less to him. Is it not evident, that this is part of the system I hinted at in my last? It will be still more so, when we reflect, that several modes of retaliation were proposed by Mr. Jefferson, as the means of compelling Britain to treat us as we merited, in return for the great benefit we permitted her to derive from our commerce. Among others, he suggests, "that where a nation refuses permission to our merchants and factors to re­side within certain parts of their dominions, we may, if it should be thought expedient, refuse residence to theirs, in any or every part of ours, or modify their transactions."

The framers of the treaty apprehended, that in the course either of commercial or political events, such prohibition, or some partial restraint, might become necessary: they, therefore, without any equivalent, bound the hands of this country; while the only restraints which Britain would ever find it ex­pedient to impose, were left in full force.—It is remarkable, that all the means that have ever been proposed for counter­acting the restrictive laws of Britain, either by individuals, by states, and by congress [...]se [...]f, have been carefully examined by our negoc [...]tor; not to advance them by his treaty, but pre­cisely [Page 170]to take from his country the means of carrying them into effect. The several importing states, prior to the orga [...] ­tion of the federal government, thought it necessary, by p [...] ­tial laws on the British trade, to force her to put ours upon a better footing; in this opinion, the popular branch of con­gress twice agreed. It was determined by this treaty to put it in future out of our power; and we bind ourselves to let the British continue their restrictions, but to impose none. Con­gress agree to a tonnage and duty which is to give the [...] ­tion of the United States some advantage over that of foreign­ers. Mr. Jay agrees (in consideration, I suppose, of the [...] treatment we have received from that nation) that though these regulations shall affect others, they shall be of no avail against Britain. It has been proposed to make the British debts [...] ­swerable for British depredations. Mr. Jay (fearful that [...] ­ter should not be left for another embassy extraordinary) [...] sure again to bind our hands; and all this without any [...] of equivalent. Can any body suppose that these extraordinary stipulations were accidental? Is any man so blind, as [...] see in them the acts of a party determined to strengthen them­selves by a foreign alliance, and to wrest from the hands of their antagonists the weapons by which their ally might be an­noyed? In a royal government, and where the population amounts to ten or twelve millions, a few scattered merch [...], with very limited capitals, are of no moment, and cannot have the slightest influence upon the government: but is this the case in a republic, where the population is thin, where wealth creates almost the only distinction, where the sea [...] give the tone to the politics of the country? Will any [...] say, that circumstances may not arise in such a country, i [...] which it would be extremely imprudent to permit the whole commerce to be carried on by foreign merchants, whose [...]i­tals will probably be infinitely larger than our own, and even suffer them to remain with us (as the treaty does) when we are at war with their native country? I would not be under­stood to advocate the removal of any class of men, while [...] danger is to be apprehended from them: but it would be cer­tainly unwise to deprive ourselves of a right to do it, and to pre­vent the admission of too numerous a band of them, if political or commercial circumstances should render it proper. Why, with so much greater cause of apprehension than Britain, should we be more fearless? She does not permit the citizens of the United States to reside for the purposes of trade in any of her dominions out of Europe. She certainly does this, either because she supposes that they may be dangerous, or because [Page 171]she wishes to secure the trade to her own subjects; and should either of these motives operate with less force on us?

This article concludes with the following words, "But sub­ject always as to what respects this article, to the laws and sta­tutes of the two countries respectively;" this must mean sub­ject to the laws which existed at the time of the signature or ratification of the treaty; for otherwise, either party might, at will, defeat the provisions it contained, and render the whole a dead letter, which is too absurd to suppose.—In order to see, then, how far this provision is reciprocal, we will examine what laws, relative to the commerce of the two countries, were in force at that or this time.

1st. We impose upon British vessels, in common with other foreigners, a tonnage duty of 50 cents, that is, 44 beyond what our citizens pay;—this, however, is more than counter­vailed by the clause in the 15th article, which permits them to lay an equal tonnage upon our ships.

2d. We impose extra duties which may average 10 per cent. on the cargoes of foreign ships; this, however, is counter­vailed by the right the British reserve, to impose an equivalent duty. It must follow, then, that their commerce with us is absolutely free, and stands upon the same ground, as that of our own citizens. If then our commerce with Britain is equally free, the article is reciprocal; if, on the other hand, our trade is shackled by the laws which are left in force, then the article is not reciprocal.

• 1st. Then, Britain prohibits our trade with several parts of her dominions, except in British vessels.
• 2d. She imposes near 40 cents extra light money, a ton, upon our vessels, except in the port of London; this, with the 50 cents tonnage we have given her a right to lay, and the 6 cents our own vessels pay at home, make a premium on her vessels, or a duty on ours, equal to 46 cents a ton, to the dis­advantage of our own navigation.
• 3d. She compels us, in our trade with her, to navigate only with American seamen, which is a peculiar disadvantage to a nation which, like ours, is always receiving useful hands from other countries.
• 4th. She does not permit her citizens to make use of Ame­rican-built vessels; that is, she discourages our ship-builders; while, by the treaty, we encourage hers.
• 5th. She does not permit American vessels to bring her any commodities, except such as are the growth and manufacture of our own country, while we permit her to bring us the com­modities of every country.
• [Page 172] 6th. She prohibits our carrying articles from one of her ports to another; while she may carry from one of our ports to ano­ther, subject to an extra tonnage duty, of 44 cents.
• 7th. She prohibits the exportation of many articles to this country from her European dominions.
• 8th. She prohibits the importation of salted fish, bacon, salt provisions, whale-oil, &c. and even grain, for home consump­tion, except when the price of wheat is above 50 s. sterling the quarter.
• 9th. She lays a very heavy duty upon a variety of the articles of this country, tobacco and rice, particularly; while we lay none upon her but such as by the treaty we have allowed her to equalize.
• 10th. She does not permit our citizens to settle for the pur­poses of commerce, in any part of her dominions out of Europe.

All these restrictions, and some slighter ones that might be mentioned, are imposed on us by laws, which, by the 14th article, we have preserved in full force; at the same time, that we have agreed, that the only two checks we had placed on her commerce and navigation, shall be done away; for a counter­vailing duty, or a repeal of the duty, amounts exactly to the same thing; except so far as the repeal would affect the reve­nue, that no new ones shall be imposed. Would not any body have imagined, that this long list of burdens would have made Lord Grenville blush to ask, or Mr. Jay to grant, countervailing duties, when all we had done, was already countervailed, at least ten fold. Where is the reciprocity of this article? What could be our envoy's inducement to enter into it? Were we afraid, that our merchants would not be suffered to settle in Britain without it? Was it an object of any moment if they did not? was he fearful that they would lay new burdens upon us? was not the catalogue of oppression as full as it could be? had not Britain herself already acq [...]esced near six years in the justice of our imposing a duty upon her shipping and merchan­dizes? has she stipulated for qualizing duties with other nations, on whom she has imposed similar burdens, and who in return have taxed her trade? is the [...]e a nation in the world, from whom she derives so many advantages as from us, or who burdens her trade so little? and have we no right to any return for all this? could the British court have objected, if we were to treat on the [...]ing of reciprocal advantage [...], if M [...]. Jay had stated each of these restrictions, and demanded an equivalent for it, if it would break in too much on their system to remove them? Lord Grenville [...] ow [...] to meet them by similar [...] that if we [...] to do so, it was [Page 173]from a spirit of conciliation, and because that we believed, that the equivalent might be settled by treaty to mutual advan­tage. But to submit to all, to ask no equivalent, to relinquish the right of doing ourselves justice, was a most unheard-of desertion of the interests of our own country. It was one which no other nation in the world would suffer to pass with impunity, and which I grieve to think a single native of America can be found to justify.

It is true, that this article proposes, that two years after the present war, the contracting parties may treat for the equaliza­tion of the duties, &c. but that in the mean time it is to remain on the footing the treaty places it. Upon what ground was this discussion postponed? if Mr. Jay was sent to make a treaty, why did he not make it, but leave it open to future discussion? is it probable that at the end of the war (which may last several years, and two years after, that is, when Britain has had time to recruit her strength and her finances, she will be more moderate in her views, than at this moment, when she is overwhelmed with calamities? Is it probable, that at that period our trade will be of more consequence to her than now, that she has lost two important branches of it, Holland and France? It should be recollected, that the exportations from the British dominions to the United States, taken on the medium of two years, 1784 and 1785, exceed one-third of all her manufactures exported to all the rest of the world.

At that time, Holland, which, next to America, is their best customer, had not declined their market. At present it will not be extravagant to allege, that the United States con­sume two-fifths of all the British manufactures that are exported to foreign nations. The distress that a rupture with us, or any interruption of our commerce, would occasion in England, is beyond calculation. This, then, was the moment to treat upon the most advantageous terms, or to exert our inherent right to do ourselves justice by our own laws. It is in knowing how to take advantage of such circumstances, that true policy consists. Every one remembers how much the president's foresight was commended in having seized upon this moment to send a spe­cial envoy. But this envoy, it seems, thought differently from the president, and agrees formally, that we shall take no advan­tage of the ground on which we stand; but that, when Bri­tain may have recovered what she has lost, then we will treat.

Is there any kind of connection between the present war and our commercial regulations with Britain? If not, why have any reference to the war, in setting the time for making our arrangements? Why but to give Britain still greater advan­tages [Page 174]than she dare to ask now? If the present arrangement will as I have shown, oppress our commerce and destroy our [...]i­gation—if it banishes our seamen, and starves our ship car [...] ­ters—if it puts our whole trade into the hands of foreign [...] even for a time—how many years will it take, under the wi [...] and best arrangements, to recover the ground we had lost?—Every thing must be re-created; and the discouragement [...] must then give to foreign navigation, after having lost our own, must create a temporary distress, which will be felt by every order of people. This distress will again be the argument for new humiliations, and our subjugation to Britain be re [...]d [...] perpetual. Is the present moment was (contrary to the g [...] sentiment) that in which we could not treat to advantage, why treat at all? Why relinquish every thing, to gain nothing?

No. IX.

IT was my intention to have comprised in two numbers, the examination of the 2d article; but on experiment, it was found expedient to add a third. I resume, for a moment, the subject of indemnification for the detention of the posts.

As an inducement to persist in this claim, we are assured, that the magnanimity of France, would have procured for us, its establishment. In the first place, this supposes that we we [...] to have become a party in the war; for otherwise it would be silly to imagine, that France would, on our account, embarrass herself with a difficulty of this sort. In this case, and supposing the object accomplished, still the injuries, losses, and expenses of war would have greatly overbalanced the advantage gained. But what certainty have we, that France will be able to dictate terms, even for herself? Could we expect or rely, after the ter­rible and wasting war, in which she has been engaged, that she would be willing to encumber the making of peace, with addi­tional obstacles, to secure so trifling a point with us? Would it be even humane, or friendly in us, to ask her to risk the pro­longing [Page 175]of her calamities, for so trivial an object? A conduct like this, with reference either to France, or to ourselves, [...]uld resemble that of the gamester, who should play millions against farthings. It is so preposterous in every sense, that the recommendation of it, if sincere, admits of but one construc­tion, namely, that those who recommend it, wish our envoy to have acted not as if he had been sent to make peace, but as if he had been sent to make war, to blow and spread the desolating f [...]ames of discord and contention.

There is a marked disingenuousness, running through the observations, which are made to the prejudice of the treaty: they endeavour constantly to have it understood, that our envoy abandoned, without effort, the claims which have not been established.—Whence is this inferred? Is it from the silence of the treaty? Surely we can only expect to find there what was agreed upon, not what was discussed and rejected. The truth is, that as well on this point of indemnification, for the detention of the posts, as on that of compensation, for the negroes carried away, our envoy urged our pretensions, as far, and as long, as he could do it, without making them final obstacles to the pro­gress of the negociation.

I shall now enumerate and answer the remaining objections, which have appeared against this article. They are these: 1. That the posts to be surrendered, instead of being described in general terms, should, for greater certainty, have been specially enumerated; that now the uncertainty of a part of the boun­dary line, may furnish a pretext for detaining some of them. 2. That the expressions "precincts and jurisdictions," which are excepted from our right of settlement, previous to the surrender, are so vague and indeterminate, as to be capable of being made to countenance encroachments. 3. That it was improper to have stipulated, for the inhabitants, the option of residing and con­tinuing British subjects, or of becoming American citizens: that the first was to establish, by treaty, a British colony, within our limits; the last to admit, without the power of exception, bi [...]ter enemies of the country, to the privileges of citizens. 4. That the securing to those inhabitants, the enjoyment of their property is exceptionable, as being a "cession without equiva­lent of an indefinite extent of territory." This is the character given to it by the meeting at Philadelphia.

The answer to the first objection, is, that the enumeration proposed might have included the very danger which is objected to the provision as it stands, and which is completely avoided by it. The principal posts occupied by the British, are known and might easily have been enum [...]ated; but there is a possibility of [Page 176]there being others not known, which might have escaped. Last year there started up a post, which had not been before hea [...]d of, on the pretence of an old trading establishment. Who knows with absolute certainty, how many similar cases may e [...] in the vast extent of wilderness, as far as the lake of the Wo [...]d [...] which, for several years past, has been inaccessible to us? If our envoy's information could have been perfect, at the time of his last advices from America; between that period and the signing of the treaty, changes might have taken place, that is, trading houses might have grown into military posts, as they did in the case referred to; a case, which, in fact, happened after the departure of our envoy from the United States. Was it not far better than to hazard an imperfect specification, to use terms so general and comprehensive, as could not fail, in any circumstances, to embrace every case? Certainly it was; and the terms "all ports and places," which are those used in the treaty, are thus comprehensive. Nothing can escape them.

Neither is there the least danger that the uncertainty ^* of a part of the boundary line, can be made a pretext for detai [...] the posts, which it was impossible to enumerate. This [...] appear from an inspection of the map—The only uncertain p [...], of the boundary line (except that depending on the river. St. Croix, which is on a side unconnected with the position of the posts) is that which is run from the lake of the Woods to the Mississippi.—The most western of our known posts, is at Mi­chillimackinac, at or near the junction of the lakes Huron and Michegan, eastward near eleven degrees of longitude of the lake of the Woods, and about ten degrees of longitude of that point, on the Mississippi, below the falls of St. Anthony, where a survey, in order to a settlement of the line, is to begin. More­over, our line, by the treaty of peace, is to pass through the lake Huron, and the water communication between that [...] and lake Superior, and through the middle of lake Superior, and thence westward through other waters, to the lake of the Woods; that is, about half a degree of latitude more northward, and about eight degrees of longitude more westward, than any part of the lake Michegan. Whence it is manifest, that any closing line, to be drawn from the lake of the Woods to the Mississippi, must pass at a distance of several hundred miles from Michillimackinac. If the British, therefore, should be [Page 177]disposed to evade the surrender, they will seek for it some pre­text more plausible than one which involves a palpable geogra­phical absurdity. Nor can we desire a better proof of the igno­rance or disingenuousness of the objectors to the treaty, than their having contrived one of this nature.

The general terms used, were to be preferred, for the very reason, that there was a doubt about the course of a part of the boundary line; for, if there should chance to exist any post now unknown, so near the line as to render it questionable, in the first instance, on which side it may fall; the moment the line is settled, the obligation to surrender will be settled with it.

The second objection loses all force, when it is considered, that the exception can only operate till the first of June next, the period for the surrender of the posts; and that, in the mean time, there is ample space for settlement, without coming to disputable ground. There was, besides, real difficulty in an accurate definition. What the precincts and jurisdictions of the posts are, is a question of fact. In some instances, where, from there being no settlements, over which an actual jurisdiction had been exercised, a good rule might have been, the distance of gun shot from the fortifications, which might have been set­tled at a certain extent in miles, say three or four. But in some cases an actual jurisdiction has been exercised, under circum­stances which created obstacles to a precise definition. The case of Caldwell's manor, in the vicinity of Dutchman's point, is an example. There, a mixed jurisdiction has been sometimes ex­ercised by the British, and by the state of Vermont, connected with a disputed title to that manor; one party claiming under an ancient French grant, and the other under the state of Ver­mont. Detroit and its vicinity would also have occasioned em­barrassment. From the situation of the settlements, and of a number of dispersed trading establishments, a latitude was likely to have been required, to which it might have been expedient to give a sanction. In such situations, where a thing is to last but a short time, it is commonly the most eligible course, to avoid definition. It is obvious, that no ill can result from the want of one, if the posts are surrendered at the time agreed; if not, it is equally plain, that it can be of no consequence, because the whole article will be void.

The third objection becomes insignificant, the moment the real state of things is adverted to. This has been described in a former number for another purpose, but will now be recapitu­lated, with one or two additional facts. The first posts, begin­ning eastward, are, Point-au-fer and Dutchman's point, on like Champlain. The whole number of persons in this vicinity, [Page 178]over whom jurisdiction has been claimed by the British, may amount to an hundred families. But the claim of jurisdiction here, has been only occasionally and feebly urged; and it is assorted in addition, by well informed persons, that the ab [...] ­mentioned families have been, for some time, regularly repre­sented in the legislature of Vermont, the ordinary civil jurisdic­tion of which state has, with little interruption, been extended over them. At neither of the other posts, to wit, Osweg [...], Niagara, the Miami, Detroit, Michillimackinac, is there any settlement, except at Detroit, where, and in the vicinity of which, there may be between two and three thousand persons, chiefly French Canadians, and their descendants. It will be un­derstood, that I do not consider as a settlement, two or three log houses for traders.

It follows, that the number of persons who can be embraced by the privileges stipulated, is too inconsiderable to admit of attaching any political consequences whatever to the stipulation▪ Of what importance can it possibly be, to the United States, whether two or three thousand persons, men, women and children, are permitted to reside within their limits, either as British or American subjects, at their option? If the thing was an object of desire to Great Britain, for the accommodation of the individuals con [...]erned, could it have merited a moment's hesitation on our part? As to residence, it is at the courtesy of nations at peace to permit the residence of the citizens of each other within their respective territories. British subjects are now free by our laws, to reside in all parts of the United States. As to the permission to become citizens, it has been the general policy and practice of our country to facilitate the naturaliza­tion of foreigners. And we may safely count on the interest of individuals, and on that desire to enjoy equal rights which is so deeply planted in the human breast, that all who resolve to make their permanent residence with us, will become citizens.

It is true, that there may be a few obnoxious characters (though I do not recollect to have heard of more than two or three) among the number of those who have acquired by the stipulation, a right to become citizens of the United States. But would it ever have been worthy of the dignity of the na­tional wrath, to have launched its thunders against the heads of two, or three, or half a dozen despicable individuals? Can we suppose that, without a stipulation, it would have been thought worth the while to make a special exception of their cases out of the operation of our general laws of naturalization? And if this had not been done, would they not have found means, if they desired it, after the lapse of a sh [...]rt period, to [Page 179]acquire the rights of citizens? It is to be observed, that citi­zens of our own, who may have committed crimes against our laws, not remitted by the treaty of peace, would find no pro­tection under this article.

Suppose the stipulation had not been made, what would have been the probable policy of the United States? Would it not have been to leave the handful of settlers undisturbed, in quiet enjoyment of their property, and at liberty, if British subjects, to continue such, or become American citizens, on the usual conditions? A system of depopulation, or of coercion to one allegiance or another, would have been little congenial with our modes of thinking, and would not, I am persuaded, have been attempted.

If, then, the treaty only stipulates in this respect, what would have been the course of things without it, what cause for serious objection can there be on this account?

The matter of the fourth objection can only derive a mo­ment's importance from misapprehension. It seems to have been imagined, that there are large tracts of land, held under British grants, made since the peace, which are confirmed by the part of the article that gives the inhabitants the right of removing with, selling, or retaining their property.

In the first place, it is to be observed, that if such grants had been made, the stipulation could not be deemed to confirm them; because our laws must determine the question, what is the property of the inhabitants; and they would rightfully de­cide, that the British government, since the treaty of peace, could make no valid grants of land, within our limits. Upon the ground even of its own pretensions, it could not have made such grants. Nothing more was claimed, than the right to de­tain the posts as a hostage. The right to grant lands pre-sup­poses much more, a full right of sovereignty and territory.

But in the second place, it has always been understood, and upon recent and careful enquiry is confirmed, that the British government has never, since the peace, made a grant of lands within our limits. It appears, indeed, to have been its policy, to prevent settlements in the vicinity of the posts.

Hence the stipulation, as it affects lands, does nothing more than confirm the property of those which were holden at the treaty of peace; neither is the quantity considerable; and it chiefly, if not altogether, depends on titles acquired under the French government, while Canada was a province of France.

In giving this confirmation, the treaty only pursues what is a constant rule among [...]ivilized nations. When territory is ceded or yielded up by o [...]e nation to another, it is a common practice [...] [Page 180]if not a special condition, to leave the inhabitants in the enjoy­ment of their property. A contrary conduct would be disgrace­ful to a nation; nor is it very reputable to the objectors to the treaty, that they have levelled their battery against this part of it. It is a reflection upon them too, that they employ for the purpose, terms which import more than is true, even on their own supposition, and are, therefore, calculated to deceive; for the confirmation of property to individuals, could be at most a cession only of the right of soil, and not of territory, which term has a technical sense, including jurisdiction.

Let it be added, that the treaty of peace, in the article which provides "that there should be no future confiscations nor pro­secutions against any person or persons, by reason of the part which he or they might have taken in the war; and that no person should, on that account, suffer any future loss or damage, either in his person, liberty or property," did substantially what is made an objection to the treaty, under consideration. It will not, I believe, be disputed, that it gave protection to all pro­perty antecedently owned, and not confiscated. Indeed it is a question, whether the stipulations cited, would not have effect­ed, with regard to other rights than those of property, a great part of what is regulated by the last treaty. Its provisions, in this particular, were, perhaps, in the main, unnecessary, fur­ther than to obviate a doubt which might have arisen from the suspension of the treaty, by the withholding of the posts.

Thus have I gone through every objection to the second arti­cle, which is in any degree colourable; and I flatter myself have shown not only that the acquisition made by it, is of great and real value, but that it stands as well as circumstances per­mitted, and is defensible in its details. I have been the mo [...] particular in the examination, because the assailants of the treaty have exerted all their ingenuity to discredit this article, from a consciousness, no doubt, that it is a very valuable it [...] of the treaty; and that it was important to their cause, to en­velope it in as thick a cloud of objection as they were able to contrive. As an expedient of party, there is some merit in the artifice; but a sensible people will see that it is merely artifice. It is a false calculation, that the people of this country can ever be ultimately deceived.

No. X.

THE object of the third article is connected with that of the second. The surrender of the posts naturally drew with it an arrangement, with regard to inland trade and navi­gation. Such an arrangement, convenient in several respects, appears to be in some respects necessary. To restrain the Indi­ans on either side of the line, from trading with the one party or the other, at discretion, besides the questionableness of the right, could not be attempted without rendering them disgusted and hostile. The truth of this seems to have influenced the conduct of Great Britain and France, while the latter was in possession of Canada. The 15th article of the treaty of peace of Utretcht, in the year 1713, allows free liberty to the Indi­ans on each side, to resort for trade to the British and French colonies. It is to be observed, too, that the Indians not only assist on a right of going to trade with whom they please, but of permitting whom they please to come to trade with them, and also to reside among them for that purpose.—Thus, the southern and south-western Indians within our limits, maintain a constant intercourse with Spain, established on the basis of treaty—nor has their right to do it, been hitherto contested by the United States.—Indeed, on what clear principle of justice could this natural right of trade, of a people not subject to our ordinary jurisdiction, be disputed? This claim, on their part, gives a corresponding claim to neighbouring nations, to trade with them. Spain would think the pretension to exclude her inadmissible—And Great Britain would have thought the same, if she had found it her interest to assert the right of in­tercourse; views which would always be seconded by the In­dians from regard to their own interest and independence. It was a point, therefore, which it much concerned the preserva­tion of good understanding between the parties and with the Indians, to regulate on some equitable plan; and the more li­beral the plan, the more agreeable to a natural course of things, and to the free participation of mutual advantages, the more likely was it to promote and prolong that important benefit.

In the second place, the expediency of some arrangement was indicated by the circumstance of the boundary line between the parties, running for an extent of sixteen hundred miles through the middle of the same rivers, lakes, and waters. It may be deemed impossible from the varying course of winds and currents, for the ships of one party to keep themselves constantly within their own limits. without passing or trans­gressing [Page 182]those of the other. How, indeed, was the precise middle [...]e of those great lakes to be always known?

It appears evident, that to render the navigation of thes [...] waters useful to, and safe for, both parties, it was requisite that they should become common. Without this, frequent for­feitures to enforce interdictions of intercourse might be incur­red—and there would be constant danger of interference and controversy. It is probable, too, that when those waters are better explored in their whole extent, it will be found that the best navigation of those lakes is sometimes on the one side, sometimes on the other, and that common convenience will, in this respect, also be promoted by community of right.

Again—It is almost always mutually beneficial for bordering territories to have free and friendly intercourse with each other—This relates not only to the advantages of an inter­change of commodities, for the supply of mutual wants, a [...] to those of the reciprocal creation of industry, connected with that interchange, but also to those of avoiding jealousy, colli­sion, and contest, of preserving friendship and harmon [...].— Proximity of territory invites to trade—the bordering inhabi­tants, in spite of every prohibition, will endeavour to carry it on;—if not allowed, illicit adventures take place of the regular operations of legalised commerce—individual interest leads to collusions to e [...]de restraining regulations—habits of infracting the laws are produced—morals are perverted—secu­rities, necessarily great, in proportion as they counteract the natural course of things, lay the foundation of discontents and quarrels. Perhaps it may be safely affirmed, that freedom of intercourse, or violent hatred and enmity, are the alternative in every case of contiguity of territory.

The maxims of the United States have hitherto favored a free intercourse with all the world. They have conceived, that they had nothing to fear from the unrestrained competition of commercial enterprize, and have only desired to be admitted to it on equal terms. Hence, not only the communication by sea has been open, with the adjacent territories, on our conti­nent, as well as with more distant quarte [...] of the globe; but two ports have been erected on lake Champlain for the con­venience of interior commerce with Canada: and there is no ristriction upon any nation, to [...] by the M [...]pi to the only port which has been established for that [...] the uni­on. These arrangements have created neither blame nor cri­tism.

Our envoy, therefore, in agreeing to a liberal plan of in­tercourse with the British territories in our neighbourhood, [...] [Page 183]conformed to the general spirit of our country, and to the ge­neral policy of our laws. Great Britain, in acceding to such a plan, departed from her system of colonial monopoly, a de­parture which ought to be one recommendation of the plan to us; for every relaxation of that system paves the way for other and further relaxations. It might have been expected, also, that a spirit of jealousy might have proved an obstacle on the part of Great Britain; since, especially if we consider the composition of those who inhabit, and are likely to inhabit Canada, it is morally certain, that there must be, as the result of a free intercourse, a far greater momentum of influence of the United States upon Canada, than of Canada upon the United States. It would not have been surprising, if this jea­lousy had sought to keep us at a distance, and had counteracted the wiser policy of limiting our desires by giving us possession of what is alone to us truly desirable, the advantages of com­merce, rather than of suffering our wishes to be stimulated and extended by privation and restraint.

New ideas seem of late to have made their way among us. The extremes of commercial jealousy are inculcated.—Regula­tion, restriction, exclusion, are now with many the favorite topics—instead of feeling pleasure, that new avenues of trade are opened, a thousand dangers and mischiefs are pourtrayed when the occasion occurs. Free trade with all the world seems to have dwindled into trade with France and her dominions. The love-sick partizans of that country appear to regard her as the epitome of the universe, to have adopted for their mot­to, "All for love, and the world well lost."

These new propensities toward, commercial jealousy, have been remarkably exemplified with respect to the article immedi­ately under consideration. Truly estimated, it is a valuable in­gredient in the treaty; and yet there is, perhaps, no part of it which has been more severely reprobated.—It will be easy to show that it has been extremely misrepresented, and that what have been deemed very exceptionable features, do not exist at all.

We will first examine what the article really does contain, and afterwards what are the comparative advantages likely to result to the two countries.

The main stipulation is, that "it shall at all times be free to his majesty's subjects, and to the citizens of the United States,—and also to the Indians dwelling on either side of the boundary line, freely to p [...]s [...] and re [...], by land and inland na­vigation, into the [...], and countries of the two parties on the con [...]ent of A [...] [...] the [Page 184]limits of the Hudson's Bay company only excepted) and to na­vigate all the lakes, rivers, and waters thereof, and freely to car­ry on trade and commerce with each other."

The subject matter of this stipulation is plainly inland trade and commerce, to be carried on by land passage, and inland naviga­tion. This appears, 1st, from the terms of the article. The subjects and citizens of the two parties, and also the Indians dwelling on each side the boundary line, are freely to pass and repass. In what manner? by land and inland navigation: to what places? into the respective territories and countries of the two parties, on the continent of America (the country of the Hudson's Bay company only excepted). They are also to navi­gate all the lakes, rivers, and waters thereof, and freely to car­ry on trade and commerce with each other. This right to na­vigate lakes, rivers, and waters, must be understood with re­ference to inland navigation; because this gives it a sense con­formable with the antecedent clause, with which it is immedi­ately connected, as part of a sentence; because the right to pass and repass, being expressly restricted to land and inland navigation, it would not be natural to extend it by implication, on the strength of an ambiguous term, to passage by sea, or by any thing more than inland navigation; because the lakes and rivers have direct reference to inland navigation, showing that to be the object in view; and the word "waters," from the order in which it stands, will most consistently with pro­priety of composition, be understood as something less than lakes and rivers, as ponds, canals, and those amphibious wa­ters, to which it is scarcely possible to give a name; and be­cause the waters mentioned are "waters thereof," that is, wa­ters of the territories and countries of the two parties on the continent of America; a description which cannot very aptly be applied to the sea, or be supposed to include navigation by sea to the United States, or from them to the British territo­ries. It is true, that nations, for various purposes, claim and exercise jurisdiction over the seas, immediately adjacent to their coasts; yet this is subject to the common right of na­tions, to the innocent use of those seas for navigation; and it is not, prima facie, presumable, that two nations, speaking of the waters of each other, would mean to give this appropriate de­nomination to waters, in which both claimed some common right.—The usual description of such waters in treaties is, "the [...] near the countries," &c.—But were it otherwise, still the [...]gating from the [...] s [...] into those waters, could not be [...] and might be [...]

[Page 185] The above construction is confirmed by the general com­plexion of the treaty. It is the manifest province of the eigh­teen articles, which succeed the first ten, to regulate external commerce and navigation. The regulations they contain, are introduced thus, by the 11th article: "It is agreed between his majesty and the United States of America, that there shall be a reciprocal and entirely perfect liberty of navigation and commerce, between their respective people, in the manner, un­der the limitations, and on the conditions specified in the fol­lowing articles."—Then follow articles, which provide fully and distinctly for trade and navigation between the United States and the British West Indies, between the Asiatic domi­nions of Great Britain and the United States; and lastly, be­tween the European dominions of Great Britain and the Unit­ed States. These eighteen articles properly constitute the treaty of commerce and navigation between the two countries. Their general scope, and some special provisions which they contain, prove that the object of the third article is local and partial; that it contemplates exclusively, an interior commerce, by land and inland navigation (except as to the Mississippi) and parti­cularly that it does not reach at all our Atlantic ports. An in­stance of one of the special provisions alluded to, will be cited in the further examination of this article.

In opposition to this construction, much stress is laid upon the provisions which immediately succeed the clauses that have been quoted. They are in these words: "But it is understood, that this article does not extend to the admission of vessels of the United States into the seaports, harbours, bays, or creeks of his majesty's said territories, nor into such parts of the ri­vers in his said territories as are between the mouth thereof, and the highest port of entry from the sea, except in small vessels trading bona side between Montreal and Quebec: nor to the admission of British vessels from the sea, into the rivers of the United States, beyond the highest ports of entry for foreign vessels from the sea!" The last, it is said, contains an implica­tion, that under this article, British vessels have a right to come to our highest ports of entry for foreign vessels from the sea, while we are excluded from the seaports of the British territories on this continent.

But this is altogether an erroneous inference. The clauses last cited are inserted for greater caution, to guard expressively against any construction of the article, by implications more or less remote; contrary to the actual regulations of the parties, with regard to external commerce and navigation. Great Britain does not n [...] permit a trad [...] by sea to Nova Scotia and Canada. [Page 186]She therefore declares that the article shall not be deemed to contravene this regulation. The United States now permit so­reign vessels to come to certain ports of entry from the sea, but exclude them from other more interior ports of entry, to which our own vessels may come. ^* It is therefore declared on their part, that the article shall not be construed to contravene this regulation. This was the more proper, as the right of inland navigation might have given some colour to the claim of going from an outer to an inner port of entry. But this negative of an implication [...] which might have found some colour in the principal provasion, can never be construed into an affumative grant of a very important privilege, foreign to that principal provision. The main object of the article, it has been seen, is trade by land, and inland navigation. Trade and navigation by sea, with our sea ports, is an entirely diflerent thing. To inser a positive grant of this privilege, from a clause which says, that the right of inland navigation shall not be construed to permit vessels coming from the sea, to go from the ports of entry, to which our laws now restrict them, to more interior ports, would be contrary to reason, and to every rule of sound construction. Such a privilege could never be permitted to be founded upon any thing less than a positive and explicit grant. It could never be supported by an implication drawn from an article relative to a local and partial object, much less by an implication drawn from the negative of another implication. The pretension, that all our ports were laid open to Great Britain by a covert and side-wind provision, and this without reciprecity, without a right of access to a single sea port of the other party in any part of the world, would be too monstrous to be tolerated for an instant. The principles of equity between nations, and the established rules of interpretation, would unite to condemn so great an inequality, if any other sense could possibly be found for the terms from which it might be protended to be deduced. It would be in the present case the more inadmissible, because the object is embraced and regulated by other parts of the treaty on terms of reciprocity.

The different mode of expression, in the clause last cited, when speaking of the British territories, and when speaking of the United States, has furnished an argument for the inference which has been stated. But this difference is accounted for by [Page 187]the difference in the actual regulations of the parties, as de­scribed above. The object was on each side to cust an implica­tion interfering with those regulations. The expressions to ef­fect it were commensurate with the litte of the fact on each size; and consequently do not warrant any collateral or special infer [...]nce.

The only positive effect of these clauses is to establish, that the navigation from Montreal to Quebec, shall be carried on in what are called "small vessels, trading bone side between Montreal and Quebec." In determining their sense, it merits some o [...]servation, that they do not profess to except from the operation of the general provisions of the article, the sea ports, &c. of the British territories; but declare, that it is understood that those provisions do not extend to them. This is more a de­claration that the antecedent provisions were not so broad as to comprehend the cases, than an exception of the cases from the operation of those provisions.

Those who are not familiar with laws and treaties, may feel some difficulty about the position, that particular clauses are introduced, only for greater caution, without producing any new effect; but those who are familiar with such subjects, know, that there is scarcely a law or a treaty which does not offer examples of the use of similar clauses; and it not unfre­quently happens, that a clear meaning of the principal provision is rendered obscure by the excess of explanatory precaution.

The next clause of this article is an exception to the general design of it, condfirming the construction I have given. "The river Mississippi shall, however, according to the treaty of peace, be entirely open to both parties; and it is further agreed, that all the ports and places on its eastern side, to which soever of the parties belonging, may freely be resorted to and used by both parties, in as ample a manner as any of the Atlantic ports or places of the United States, or any of the ports or places of his majesly in Great Britain."

If the general provision gives access to all our ports, which must be the doctrine, if it gives access to our Atlantic ports, then it would equally have this effect with regard to the Mis­sissippi. But thus [...]use [...]ly im [...] the contrars, not only by introducing a special provision for the parts of the Mississippi, but by introducing it expressly, as a farther or additional agree­ment; the words are, "it is further e [...]y [...]." &c. and these ports are to be enjoyed by each party, in as ample a manner as any of the [...]tle ports or places of the United States, or any of the parts or ple [...] his ma [...]ly in G [...]at Britain. This reference to our Atlantlc p [...]rt [...], [...] them with the ports of Great [Page 188]Britain, shows that the Mississippi ports are to be regulated by a rule or standard different from the ports for that inland na­vigation, which is the general object of the article; else, why that special reference? why not have stopped at the words "used by both parties?" If it be said, that the reference to our Atlantic ports implies, that they are within the purview of the article, let it be observed, that the same argument would prove that the ports of Great britain are also within its par­view, which is plainly erroneous; for the main provisious are expressly consined to the territories of the parties on this con­tinent. The conclusion is, that the reference is to a sa [...] ­ard, out of the article, and depending on other parts of the treaty.

It may be useful to observe here, that the Mississippi ports being to be used only in as ample, and not in a more ample manner, than our Atlantic ports and the ports of Great Britain, will be liable at all times to all the regulations, pei­vileges, and restrictions of the ports with which they are assorted.

The next clause is a still further refutation of the construction which I oppose.

"All goods and merchandize, whose impertation into his ma­jesty's said territories in America shall not be entirely prohibited, may freely, for the purposes of commerce, be carried into the same, in the manner aforesaid, by the citizens of the United States; and such goods and merchandize shall be subject to [...]s higher or other duties than would be payable by his majesty's subjects on the importation of the same from Europe, into the said territo­ries: and in like manner, all goods and merchandize, whose importation into the United States shall not be wh [...]lly prohibited, may freely, for the purposes of commerce, be carried into the same, in the manner aforesaid, subject to no higher or other duties than would be payable by the citizens of the United States, on the importation of the same in American vessels into the Atlantic ports of the said States: and all goods not prohibited to be ex­ported from the said territories respectively, may, in like man­ner, be carried out of the same by the two parties respectively. paying duty as aforesaid."

The words, "in the manner aforesaid," occur twice in these clauses, and their equivalent, "in like manner" once. What is the meaning of this so often repeated phrase? it cannot be pre­sumed, that it would have been inserted so frequently without having to perform some office of consequence. I answer, that it is evidently the substitute for these other words of the main provision, "by land [...] inland navigation." Th [...] is "the manner [Page 189] [...]sind."— This is the channel, through which goods and merchandizes passing, would be subject to no other or higher duties than would be payable in the British territories by Bri­tish subjects, if imported from Europe; or in the terriories of the United States, by citizens of the United States, if brought by American vessels into our Atlantic ports. No other reasona­ble use can be found for the terms. If they are denied this sense, they had much better been omitted, as being not only useless, but as giving cause to suppose a restriction of what, it is pretended, was designed to be general—a right of importing in every way, and into all parts of the United States, goods and merchandize, if not entirely prohibited, on the same duties as are payable by our own citizens when brought in our own [...]ssels.

These words, "whose importation into the United States shall not be entirely prohibited," is a further key to the true sense of the article. They are equivalent to these other words, "whose importation, into all parts of the United States shall not be prohibited."—The design o [...] this clause is to prevent im­portation, through the particular channels contemplated by the article, being obstructed by a partial or by any other than a general prohibition. As long as certain goods may be introduced into the United States through the Atlantic ports, they may also be brought into them through the channels delignated by this article, that is, by land and inland navigation. The making a prohibition in the given case to depend on a general prohibi­tion, is conclusive to prove, that the article contemplates only particular channels. On any other supposition, the clause is non­sense. The true reading, then, of this part of the article, must be as follows: "Goods and merchandize, whose importation into all parts of the United States shall not be prohibited, may freely, for the purposes of commerce, be carried into the same, in manner as [...]resaid, that is, by land and inland navigation, from the territories of his majesty on the continent of America."

There are still other expressions in the article, which are like­wise an index to its meaning. They are these, " would be pay­able by the citizens of the United States, on the importation of the same in American vessels into the Atlantic ports of the said states." This reference to a rate of duties, which would be pay­able on importation into the Atlantic ports, as a rule or guide for the rate of duties, which is to pre [...]an in the case meant to be comprehended in the article, is full evidence that importation in the Atlantic ports is not included in that case. The mention of importation in American vessels, confirms this conclusion [Page 190]as it shows that the article itself contemplates, that the discri­mination made by our existing laws may continue.

But the matter is put out of all doubt by those parts of the fifteenth article which reserve to the British government the right of imposing such duty as may be adequate to countes­vail the difference of duty, now payable on the importation a European and Asiatic goods, when imported into the Unites States in British and American vessels; and which stipulate, that "the United States will not INCREASE the now subsisting difference between the duties payable on the importation of any articles in British or American vessels."

This is a demonstration, that the treaty contemplates, as consistent with it, a continuance of the present difference of duties on importations in American and British vessels; and consequently, that the th [...]d article, which stipulates equal du­ties, as to the cases within it, does not extend to importations into our Atlantic ports, but is confined to importations by land and inland navigation. Though this article be of temporary duration, yet as an evidence of the sense of the parties, it will always serve as a rule of construction for every part of the instrument.

These different views of the article establish, beyond the possibility of doubt, that, except with regard to the Mississippi, inland trade and navigation are its sole objects—that it gra [...] no right or privilege whatever in our Atlantic ports—and that with regard to the ports of the Mississippi, it only establishes this principle, that Great Britain shall always enjoy there the same privileges which by treaty or law she is allowed to have in our Atlantic ports.

I remark incidentally, for a purpose which will appear here­after, that as far as this article is concerned, we are free to prohibit the importation into the United States at large, of any British article whatever, though we cannot prohibit its impor­tation partially, that is, morely from her territories in our neighbourhood, by land or inland navigation; but we may prohibit the importation by [...] from those territories; [...] i [...] there any other part of the [...] this is prevented.

The remaining clauses of t [...] article [...]lish the following points: "That no duty of entry [...] by either party on pe [...]tries brought by land [...], into the respe [...]ve terri [...]ories;" that [...] with their own goods, [...]ll, [...] or duty upon them; but goods in bale [...], or other [...], unusual among Indians, shall not be con [...]idera [...] [...] their [...]; that toils and [...] paid [Page 191]by natives—that no duties shall be paid by either party on the mere transit of goods acress portages and carrying places from one part to another of the territory of the same party; that the respective governments will promote friendship, good neighbourhood, and amicable intercourse, by causing speedy and impartial justice to be done, and necessary protection to be extended to all who may be concerned therein.

I shall conclude this paper with an observation or two on the meaning of the terms, inland navigation. These terms have no technical meaning defined in the laws of either coun­try, nor have they any precise meaning assigned by the law of nations. They, however, ex vi termini, exclude navigation from the sea; and as a general rule, I should say, that inland navigation begins there, where sea navigation ends. Where is this? I answer, at the ports of entry from the sea. By the laws of Great Britain and of the United States, all rivers are arms of the sea as far as the tides flow—It would be a con­sequence of this principle, that sea navigation would reach to the head of tide water. But some more obvious and notorious rule ought to govern the interpretation of national compacts. The ports of entry from the sea are conceived to be the pro­per rule.

In the case under consideration, the general spirit of the ar­ticle may require, that all the waters which divide the territo­ries of the parties should be in their whole extent common to both.—As to other communicating waters, accessible under the article, the reciprocal limit of the right will be the ports of en­try from the sea. This is to be understood with the exception of the Mississippi, to the ports of which, access from the sea is granted under the qualification which has been pointed out.

No. XI.

THE foregoing analysis of the third article, by fixing its true meaning, enables us to detect some gross errors, which have been principal sources of prejudice against it.— One of these is, that the article gives to the other party a right of access to all our ports, while it excludes us from the ports of the British [...] in our neighbourhood.—It has [Page 192]been clearly shown, that it gives no right of access to any one of our Atlantic ports, and that it gives only a qualified and conditional access to the ports which we may have on the Mississippi, to be regulated by the privileges at any time allow­ed by law or compact in our Atlantic ports, and liable to cease with the cessation of those privileges.—The charge, there­fore, of want of reciprocity in this particular, vanishes, and with it all the exceptionable consequences which have been the fruit of the error. Such is the assertion of DECIUS, that a British trader may set out from Canada, traverse our lakes, ri­vers and waters to New York, and thence to Philadelphi [...], while we are precluded from the navigation of the St. Law­rence, and other British rivers lower than the highest ports of entry from the sea. It would be an indulgent construction of the article, not to st [...]p the British trader at Hudson, as the high­est port of entry from the sea, and the boundary of inland na­vigation; but he could certainly have no claim of right under it, to go from New York to Philadelphia, because [...]e must ne­cessarily go by sea to arrive at the first place, and no such per­mission is stipulated by the article. Such, also, is the assertion of CATO, that Great Britain is admitted to all the advantages of which our Atlantic rivers are susceptible. The rivers, upon which no part of their territory borders, and which their ves­sels can only approach by sea, are certainly excepted.

Another of the errors referred to, is this, that goods and merchandize may, under this article, be imported into any p [...]rt of the United States, upon the same duties as are now paya­ble when imported by citizens of the United States, and in ves­sels of the United States. It has been clearly proved, that there is no pretence for this position, and that equality of duties c [...]ly applies to importations from the British territories, in our neigh­bourhood, by land and inland navigation.

CATO, DECIUS, and other writers against the treaty, have fall­en into this strange error, and have founded upon it much angry declamation. The first, however, embarrassed in his construc­tion, by the provision which reserves to Gr [...]t Britain the right of laying countervailing du [...]ies, endeavours to escape from it by distinguishing between goods imported for Indian trade, and those imported for other uses. Whatever may be the case with regard to the latter, the former, he is convinced, are certainly entitled to admission into our Atlantic ports, on the privileged rights of duty; though he is very naturally perplexed to see how the discrimination could be maintained in practice. But where does he find room for this distinction? Not in the pro­vision [...] [Page 193]in the clause of the third article, to which he gives the inter­pretation, for that is directly against his distinction. The goods and merchandize, for the privileged importation of which at provides, are restricted to no particular object—have no special reference to Indian more than to other trade: on the contra­ry, they are expressly to be imported for "the purposes of commerce" at large; so that in the cases in which they are privileged, they are equally so, whether it be for a trade with our citizens or with Indians. The distinction therefore, only proves the embarrassment of its inventor, without solving the difficulty. A curious assertion has been made on this article of duties. It has been said, that while we are obliged to admit British goods on the same duties with those paid by our own citizens, or importation in our own vessels, Great Britain, un­der the right to lay, countervailing duties, may incumber us with an additional ten per cent. Can any thing be more absurd than the position, that the right to lay countervailing duties ex­ists in a case, where there is no difference of duty to counter­vail? The term is manifestly a relative one, and can only ope­rate where there is something on our side to be countervailed or counterbalanced, and in an exact ratio to it. If it be true, that a very high law character is the writer of CATO, we can­not but be surprised at such extreme inaccuracy.

Other errors, no less considerable, will appear in the pro­gress of the examination; but it will facilitate the detection of these, and tend to a more thorough understanding of the ar­ticle, to state in this place some general facts, which are ma­terial in a comparison of the advantages and disadvantages of the article, to the respective parties.

1st. The fur trade within our limits is, to the fur trade with­in the British limits, as one to seven, nearly; that is, the trade with the Indians, on the British side of the boundary line, is about seven times greater than the same trade on our side of that line. This fact is stated as the result of repeated enquiry from well informed persons for several years past. It will not appear extraordinary to those who recollect how much the In­dians on our side are circumscribed in their hunting-grounds, and to what a degree they are reduced in numbers by the fre­quent wars, in which they have been engaged with us: while the tribes on the British side of the line are not only far more numerous, but enjoy an immense undisturbed range of wilder­ness. The more rapid progress of settlement on our side than on the other, will fast merease the existing disparity.

2d. Our communication with the sea is more easy, safe, and expeditious, than that of Canada, by the St. Law [...]ence. Ac­cordingly, [Page 194]while our vessels ordinarily make two voyages in a year, to and from Europe, the British vessels, in the Canada trade, are, from the course of the seasons, and the nature of the navigation, confined to one voyage in a year. Though hi­therto, from temporary circumstances, this difference has not made any sensible difference in the price of transportation; yet in its permanent operation, it is hardly possible that it should not give us a material advantage in the competition for the sup­ply of European goods to a large part of Canada, especially that which is denominated Upper Canada. The city of Hud­son, distant 124 miles from the city of New York, is as near to the junction of the river Cataraquy and lake Ontario, as Montreal, which last is near four hundred miles distant from the mouth of the St. Lawrence. When the canals, now in rapid execution, are completed, there will be water communi­cation the whole way from the city of Hudson to Ontario.

3d. The supply of East India goods to Canada, is likely to be always easier and cheaper through us, than in any other way. According to the present British system, Canada is sup­plied through Britain. It is obvious how much the charges of this double voyage must enhance the prices of the articles, when delivered in Canada. A direct trade between the East Indies and Canada, would suppose a change in the British system, to which there are great obstacles; and even then, there are circumstances which would secure to us an advantage­ous competition.—It is a fact, which serves to illustrate our advantages, that East India articles, including teas, are, upon an average, cheaper in the United States than in England.

The facts demonstrate that a trade between us and the Bri­tish territories in our neighbourhood, upon equal terms as to privilege, must afford a balance of advantages on our side. As to the fur trade, for a participation in one eighth of the whole, which we concede, we gain a participation in seven-eighths which is conceded to us. As to the European and East India trade, we acquire the right of competition upon equal terms of privilege with real and considerable advantages of situation.

The stipulation with regard to equal duties, was essential to the preservation of our superiority of advantages in this trade, while it would not interfere with the general policy of our re­gulation, concerning the difference of duties on goods import­ed in our own and in foreign bottoms; because the supplies which can come to us through Canada, for the reasons already given, must be inconsiderable—because, also, di [...]tance would soon coun [...], [...]n ex [...]ses of transportation, the effect of the defference of duties in our market—and because, in the [Page 195]last place, this difference is not very sensible, owing to the large proportion of goods which are imported in the names of our own citizens. I say nothing here of the practicability, on general grounds, of long maintaining with effect this regula­tion.

Is it not wonderful, considering the real state of the trade, as depending on locality, that the treaty should be charged with sacrificing the fur trade to the British? If there be any sacrifice, is it not on their side: when the fact is, that the quantity of trade in which they admit us to equal privileges is seven times greater than that in which we admit them to equal privileges?

The arguments against the treaty on this point, are not only full of falsity, but they are in contradiction with each other.

On the one hand, it is argued that our communication from the sea, with the Indian country, being much easier than by the St. Lawrence, we could furnish English goods cheaper, and of course could have continued the Indian trade in its usual channel, even from the British side of the lakes; nor could they have prevented it, without giving such disgust to the Indi­ans, as would have made them dangerous neighbours.—On the other hand, it is argued, that from superiority of capital, better knowledge of the trade, a better established connection of customers, the British will be able to supplant us, even in our own territories, and to acquire a monopoly of the whole fur trade.

Propositions so opposite cannot all be true. Either the sup­posed faculty of supplying English goods cheaper, which, it is said, would give as a command of the Indian trade, even on the British side of the lakes, not in the power of the British to prevent, overbalances the advantages which are specified on the other side, or it does not—If it does not, then it is not true, that it could draw to us the trade from the British side of the lakes—If it does, then it is not true, that the British can sup­plant us in the trade on either side the lakes; much less that they can obtain a monopoly of it on both sides.

Besides, if it be true that the British could not prevent out trading with the Indians on their side, without giving them such disgust as to make them dangerous to their neighbours; why is it not equally true, that we could not prevent their trading with the Indians on our side, without producing a similar effect?—And if they have re [...]y a sup [...]tity of advan­tages, why would they not, on the principle of this argument, attract and divert the trade from us, though [...] right to [Page 196]trade with the Indians in each other's territories had not been stipulated?

The difficulty of restraining the Indians from trading at plea­sure, is an idea well founded, as has been admitted in another place.—But there result from it, strong arguments in favor of reciprocation of privileges in the Indian trade, by treaty. One of them, its tendency to preserve peace and good understand­ing, has been already noticed; another arises from the consi­deration, that it will probably be the policy of the British to maintain larger military establishments on their frontier, than we shall think eligible on ours, which will render it proportion­ably more easy to them to restrain their Indians, than it will be to us to restrain ours. This greater difficulty of excuting restraints on our side, is a powerful reason for us to agree, mu­tually, to throw open the door.

It will not be surprising, if, upon some other occasion, the adversaries of the treaty should abandon their own ground, and instead of saying the treaty is faulty, for what it stipulates on this point, should affirm, merely that it has no merit on this account, since it only does what the disposition of the Indians would have brought about without it—But it is always a merit to divest an advantageous thing of cause of dispute, and to fix, by amicable agreement, a benefit which otherwise would be liable to litigation, opposition, and interruption.

As to relative advantages for carrying on the trade, the com­parison ought to be made with caution. That which has been stated on our side, namely, greater facility in conveying the materials of the trade from Europe to the scene where it is to be carried on, is a real one, and in process of time may be expected to make itself to be felt; yet hitherto, as before ob­served, it has had no sensible effect.

Of the advantages which have been stated as belonging to the other side, there is but one which has substance, and this is previous possession of the ground. But even this, from the very nature of it, is temporary—With our usual enterprise and industry, it will be astonishing if we do not speedily share the ground to the full extent of our relative advantages.

As to superiority of capital, it amounts to nothing. It has been seen, that the capital requisite for the whole trade is small. From a hundred to a hundred and fifty thousand pounds sterling would be a high statement.—The whole of this, if we were to monopolize the entire trade, could not create a moment's embarrassment to find it, in the opinion of any man who attends to the great pecuniary operations which are daily going on in our country. But that very capital which it [Page 197]represented as our rival, could be brought into action for our benefit in this very trade. The solution is simple. Our credit will command it in obtaining the foreign articles, necessary for the trade, upon as good terms as the British merchants who now carry it on. The same objection of superiority of capital may with as much reason be applied to any other branch of trade between us and Great Britain. Why does it not give her a monopoly of the direct trade between her European do­minions and the United States? The argument, if valid, would prove that we ought to have no commerce, not only with Great Britain, but with any nation which has more com­mercial capital than ourselves.

As to superior knowledge of the particular branch of busi­ness, there is still less force in that argument. It is not a case of abstruse science or complicated combination. And we are in no want of persons among us, who are experimentally ac­quainted with the subject.

As to customers for the proceeds of the trade, we should stand upon as good a footing as the British merchants. What we did not want for our own consumption, might be sent up­on equal terms to the very markets to which they send theirs; and to others which might be found preferable, because less well supplied with the kind of articles.

As to whatever may depend on enterprise, we need not fear to be out-done by any people on earth. It may almost be said, that enterprise is our element.

It has been alleged, that our trade with the Indians would be interrupted by bad seasons and occasional wars, while that of Great Britain would be steady and uniform. As to the ca­sualties of seasons, it is evident they must fall upon Great Britain as much as upon us, unless we suppose the elements in conspiracy against us; and as to wars, the possession of the posts would essentially change our situation, and render it pe­culiarly advantageous for preventing or repressing hostilities; so that with equally good management, our territories would not be more exposed than the British.

But the intrigues of the British traders residing among our Indians, would excite them to hostility. It could not be the private interest of the traders to do this; because, besides be­ing amenable to punishment, if discovered—besides, that both the traders and the Indians within our limits, by the possession of the posts, would be under our controul—wars interrupt of course the hunting of the Indians, and so destroy their means of trading.

[Page 198] As to Great Britain, she never could have had but one in­terest to prompt Indian hostilities, that was, to induce the United States to relinquish a part of their boundary. The re­stitution of the posts will put an end to this project. In regard to trade, she and her traders will have a common interest with us, and our traders, to keep all the Indians at peace, for the reason assigned above. This interest will be the stronger, be­cause the best communication even with her own Indians, will be partly through our territery; and it would be impossible that it should not be impeded and interrupted by the operations of war between us and the Indians In fact, under the circum­stance of common privileges, there is every possible link of common interest between us and Great Britain in the preser­vation of peace with the Indians.

In this question of danger to our peace by the British parti­cipation in the trade with our Indians, the difficulty of re­straining the Indians from trading with whom they please (which is admitted by the argument of both sides) is a very material consideration. Would there not be greater hazard to our peace from the attempts of the British to participate in a trade from which we endeavoured to exclude them, seconded by the discontents of the Indians, than from any dispositions to supplant us, when allowed a free competition, when as cause of dissatisfaction was given to the Indians, and when it was certain, that war must interfere with their means of car­rying on the trade? The security for our peace appears to be much greater in the latter, than in the former state of things.

A suspicion is also suggested, that Great Britain, without exciting war, will indirectly trammel and obstruct our trade. To objections which suppose a want of fair dealing in the other party, it is very difficult to answer. All that a treaty can do, is to establish principles which are likely to operate well, if well executed. It is no objection to its merits, that the benefits aimed at may be frustrated by ill faith. The utility of any compact between nations must presume a sincere execution. The reverse may disappoint the best conceived plan: and the security against it must be the mutual interest to perform, and the power of retaliation. If Great Britain acts with infidelity or chicanery towards us, we must retract the privileges granted on our side.

Another objection which is made, is, that while the British would have a right to reside among us, to hire houses and warehouses, and to enjoy every convenience for prosecuting the trade systematically, we should not be entitled to similar privileges with them, having only a right to pass "like pedlars [Page 199]with our shops upon our backs." These are the expressions of CATO.

The position is founded on that clause of the British act of navigation, which forbids any but a natural born or naturalized subject to exercise the occupation of a merchant or factor, in any of the British dominions in Asia, Africa and America.

In the first place, it is to be observed, that as far as the ar­ticle under discussion is singly concerned, there is no pr [...]ence to say, that one party has greater rights as to r [...]id [...]ce than the other. If, therefore, Great Britain can prevent our citi­zens residing in their territories in our neighbourhood, we are free by this article to apply to them a similar exe [...]sion. And any right of residence which may be claimed under any other part of the treaty, will be temporary.

In the second place, the prohibition of residence in the act of navigation, proceeds on the ground of excluding foreigners from carrying on trade in the territories to which it extends. But the third article expressly gives us a right freely to carry on trade and commerce with the British territories on this conti­nent, a right which necessarily includes the privilege of resid­ing as merchants and factors. For wherever an END is granted, the usual and proper means of enjoying it, are implied in the grant. Residence is a usual and necessary mean of freely carry­ing on trade. Without it, the right to trade becomes essentially nugatory. This reasoning has peculiar force in relation to inland trade. And it agrees with decisions at common law, and with the opinion of Lord Coke, who tells us that "of an house for habitation an alien merchant may take a lease for years, as inci­dent to commerce; for without habitation be cannot merchandize or trade." This, among other things, he informs us, was resolv­ed by all the judges assembled for that purpose, in the case of sir James Crost, in the reign of queen Elizabeth; and we learn from it, that the right to hire houses and warehouses is deriv­ed from the right to trade, as its incident. The same princi­ple, in t [...], has been recognized in other cases.

The whole of the article is an innovation upon the British act of navig [...]tion. Being abrogated as to the principal thing, there is no difficulty in supposing it so as to incidents; on the other hand, to pretend to exclude us from the right of re­sidence, could not be deemed a fair execution of the article. Hence we find, that the want of reciprocity in this particular, also fails, and with it the supposed disadvantage on our side in the supposed competition for the trade.

No. VIII.

THE article relative to the trade of India, is in itself of too little moment to require much of our attention. The fact, with respect to that trade, is, that as the merchandizes carried to India consist of commodities which the European nations cannot conveniently supply, together with money and necessaries for refitting their ships: As the proceeds of these cargoes are employed in purchasing India goods from the fac­tors of the European nation at whose port we trade, there is a clear prosit in admitting us freely to their ports, and thereby rendering such ports the entrepots between the United States and India. Should one nation only do this, and the others ex­clude us, the one that admitted our vessels, would thereby ac­quire a double prosit; first, upon the India goods sold to us; second, upon the sale of the commodities we brought them. This is so well understood by all the European nations that have establishments in India, that our vessels are freely admitted into their ports (a very few excepted, that have a monopoly of a particular commodity) and France has put our trade with hers upon the most favorable footing. The restrictions in the treaty have thus narrowed, instead of enlarging, our advantages in trading to the British factories; but as all the others are open to us, she will be compelled to receive us or lose our commerce; and as her ports afford no peculiar advantage, neither the one nor the other merits our attention: the article, as far as it goes, is not good; but one can hardly call it bad, when connected with the rest of the treaty; the deficiency of grace in a single feature does not attract our notice, when the whole face is strikingly deformed.

I proceed now to examine the effect of the treaty upon the commerce of this country when Britain shall be at war. It will be admitted, that the nature of our government, and our situ­ation, remote from the polities and interests of ambitious pow­ers in Europe, will enable us for the most part to live in peace. It will also be admitted, that a maritime nation that cultivates peace, may add greatly to her commerce and navigation, if [Page 220]she can carry on her trade with the belligerent powers, while theirs is diminished by the conflict. In order to do this, it is essentially necessary, that she should be able to make the powers at war respect her flag, and the rights of neutrality.

With this view, therefore, commercial nations have always endeavored by treaty, to protect their commerce from the inter­ruptions which the principles of the old law of nations (now indeed sufficiently exploded) afforded either of the belligerent powers a pretence to interpose. In looking back thro' the trea­ties which the nations of Europe have for one hundred and fifty years past formed, with a view to this object, we find principles laid down and established by them, in these respects totally different from the rules which the writers on the law of nations, borrowing their maxims from barbarous ages, have recorded. For it should be remembered, that the law of nati­ons is no written code, but a collection of those principles which govern the conduct of civilized nations, with respect to each other; which principles can only be collected from their practice, and the theory established by their treaties: and as the laws of a community are calculated to promote the interest of the members of that community, and are repealed or go into disuse when they are found not to answer this purpose, so the laws of nations also change with their refinements and civi­lization. If, therefore, a man were to look into the laws of any ancient state, he would find many things that would appear to him absurd, and contrary to humanity, which still main­tained their place in the statute book. Thus in England, be would find the trial by Battle Laws against Witchcraft, and a variety of ridiculous local customs, which would greatly shoc [...] his feelings, until he was told that all this trash had gone into disuse, though the laws were never formally repealed.

So, in looking into the writings upon the laws of nations, be would find attempts upon the common rights of humanity, upon the independence of neutral nations, justified by the max­ims of writers, who, for the most part, are pedants that reve­rence antiquity, and make no allowance for the change that the increased commerce and intercourse of nations have occasioned. Thus Vattel, to justify the capture of vessels going to a blockaded port, tells us, that Demetrius, about two thou­sand years ago, hung the pilot and mariners of a vessel that carried provisions to Athens, which he had blockaded. The writers on the laws of nations in Algiers, could justify their practice by more recent and valid precedents But when we look into the practice of nations, we find that their sentiments, expressed in all their treaties, for a series of years, have refuted [Page 221]these opinions, and established a code more consonant to reason and humanity. To strengthen those laws, is peculiarly the duty and interest of a nation, that will probably be seldom engaged in a war, and always deeply interested in the freedom of com­mence and navigation. As far back, therefore, as the year 1630, and ever since, I find the commercial nations declaring by treaty, what shall be considered as contraband, and limiting this strictly to arms and ammunition, and instruments of war, actually made up for that purpose; stipulating that free ships shall make free goods—declaring that full credit shall be given is ship's papers; that armed vessels shall not come within can­non shot of a neutral ship, but send their boat on board, with only three men at most, to examine papers, but not search.— In short, the treaties for one hundred and forty years back, rela­tive to this object, are drawn in the very words of the treaty between the United States and France; as they are again re­peated in the late treaty between England and France. For this striking similarity I refer to the treaty between Spain and the United Provinces, in 1650, and to a long series of conventions between various nations since; in which I can safely declare, I have not yet, after the most diligent search, found a single treaty in which the same latitude is given to the word contraband, as Mr. Jay has given it in his treaty with Lord Grenville: no [...] have I met with one, though such possibly may exist, in which as provision is made to guard the neutral ship from search and spoliation.

The twenty-second article of the treaty between Great Bri­tain and France, confines the word, contraband, to arms, ammu­nition, and military stores; and the twenty-third article expressly excludes cordage, sails, tar, rosin, pitch, masts for ships, plank, timber of all hinds, and all other things proper for either building or repairing ships.

The same principles are followed in our treaty with France, Holland and Sweden, and the same, as I have stated, are to be found in treaties near one hundred and fifty years back; so that notwithstanding a loose expression in Vattel, velative to naval stores, we may consider it as now settled by the uniform ac­knowledgment of nations, as expressed in their treaties, that contraband must, in its nature, be confined to arms and military stores. But were it otherwise, as the object of every treaty is to gain some advantage which you did not before enjoy by the laws of nations, or to remove some doubt which might be enter­tained on those laws; no nation ever enters into a treaty in or­der to enforce an established law, unless that law is beneficial to it. What then could Mr. Jay's inducement be, after we had [Page 222]obtained from France, Holland and Sweden, express stipulations exempting naval stores, &c. from the list of contraband—After three great nations of Europe had, by their treaties, and by their formal accession to the principles of the armed neutrality, declared that these articles were not contraband—after Britain had at length made the same recognition by her treaty with France—after the president of the United States had expressly, in his proclamation, referred to the modern law of nations for the meaning of the word contraband, and in his enumeration of contraband articles, had excepted all those that are excepted in our treaty with France—I say, what could be Mr. Jay's inducement to declare, in the 18th article of his treaty, the following staple commodities of this country contraband— "Also timber for ship-building, tar or rosin, copper in sheets, sails, hemp, and cordage, and generally whatever may serve di­rectly for the equipment of vessels, unwrought iron and fir pl [...]ds only excepted?" Is there any reciprocity in this stipulation? Was it probable that the United States would soon be at war with any nation, to whom Britain would carry these commodities? Was not Britain already at war with a nation who furnishes us a good market for them? Are they not staples of our coun­try, which we have a very considerable interest in shipping? What equivalent does the treaty hold out to us for relinqui [...] this important branch of commerce? Is it usual for nations [...] compliment away their commerce without any equivalent? [...] Mr. Jay assert, that these were contraband by the modern [...] nations? Will he give the lie to the president's public declara­tion, that they were not? Or is common politeness too much for our own executive, while the most servile adulation it lavished on the monarch of Britain? But supposing that they were actually contraband, had we not a right to expect that Britain would agree to their exemption from that character is her treaty with us, as she had done in her treaty with her n [...] ­ral enemy—and as France, and every other nation with whom we have treaties, had done with us when we were in a much less important state, than we are at present? Do not the com­mon principles of humanity, and the interests of all commer­cial nations, combine in striving to narrow the evils of was, and lessen its effects on neutral nations? The venerable Frank­lin, with this view, inserted in his treaty with Sweden, a stip [...] ­lation for an uninterrupted commerce in private ships, even if the contracting parties were at war with each other; but the chief justice of the United States thinks it his duty to stop the progress of civilization, and to recall the barbarism of past ages, even at the expense of the dearest interests of his country. What [Page 223]answer, sir, would you make to this venerable sage, if he was to rise from his grave, and to charge you with sacrificing the interests, with tarnishing the honor, of your country? If he was to allege, that you had, in this article, violated the rights of nations, and done all in your power to re-plunge us into that state of barbarism from which we had so happily emerged? What answer, sir, would you make? Would you borrow the words of Macbeth? "Thou canst not say, I did it; why dost thou shake thy hoary locks at me!" True, sir, you did it not.— But Pitt did it! Grenville did it!—did it! and twenty others did it!

N. B. An inaccuracy of expression in some of my former numbers, may induce a belief, that the discriminating duty on foreign bottoms is ten per cent. on the value of the cargo, when, in fact, it is only ten and an half per cent. on the amount of the duty; or, in other words, one-tenth additional duty.

No. IX.

IT has been usual in treaties, to confine every distinct mat­ter to a separate article: thus the 22d article of the treaty between France and Britain, declares what is contraband; the 23d article expressly specifies the exceptions. But Lord Gren­ville's treaty, as if with a view to render the subject as ob­scure as possible, crouds a variety of distinct matter into the same article, which makes it much more difficult to reason on the subject, unless the reader will be at the trouble of turning to the article at the time that he hears the commentary upon it. The article before us contains three distinct matters; first, it enumerates contraband, without excepting any one article shipped from the United States, other than unwrought iron and fir plank; as is usually done in similar cases, and which would have been peculiarly proper in the present case, because of the sweeping words, "and generally whatever may serve di­rectly to the equipment of vessels;"—words of such extent as to include a very considerable portion of our exports, which by this article, are to be forfeited.

The second member of this article is extremely difficult to define. I shall, therefore, give the very words of the treaty, that every reader may judge for himself, and if he can peruse them without the most lively emotion, I shall not hesitate to [Page 224]declare, that he is no native American. "And whereas [...] difficulty of agreeing on the precise cases, in which, alone, pro­visions and other articles, not generally contraband, may be re­garded as such, renders it expedient to provide against the in­conveniencies and misunderstandings which might thence arise; it is further agreed, that whenever such articles, so becoming contraband, according to the existing law of nations, sh [...]ll, for that reason, be seized, the same shall not be considered c [...] ­cated; but the owners thereof shall be speedily and compl [...]ly indemnified," &c.—The first member provides that in [...] a vessel's going to a blockaded port, she shall not be con [...]i [...], till after notice of such blockade.

The second, then, does not refer to the case of a port which is blockaded; but must refer to some other cases, in which Mr. Jay admits, that provisions and other articles, not usually contra­band, may be rendered such. Now I know of no case in which provisions, and more especially other articles not usually contra­band, can be considered as such. It is true, Vattel has this [...] expression in the enumeration of contraband: "Lor [...]i [...]es meme en certaines occasions où l'on espere de reduire [...] par la famine." "Even provisions where they hope to [...] the enemy by famine." I have shewn that great change [...] have taken place in modern times with respect to the laws of [...] ­ons; that every nation has, in its treaties, expressly exc [...] provisions; and that England has herself done so in her [...] treaty, even with France. But admitting Vattel's words in [...] utmost latitude, they can only refer to the case of a place block­aded; and this is referred to in another part of the article, [...] therefore not intended by this, which alludes to some [...] case.

If there are really cases to which it can properly apply, in­dependent of a blockaded place, as the object related to the whole remaining trade of America (that in lumber and [...] stores having been before ceded) surely it was the duty of our minister, particularly as he was a lawyer, and must be supposed competent to the subject, to have specified those cases as accu­rately as possible, and to have confined them to the narrowed possible limits, where any doubts could have been entertained on the subject: this was necessary, not only to put his countrymen upon their guard, to enable them to make some estimate of their risk and loss; but to point out to them the cases in which they might appeal with success. But, says the treaty "it is dif­ficult precisely to determine the cases." Why so, sir? Are the cases so very numerous, or are they so doubtful? If both, or either, they called for the more care and accuracy in the enu­meration [Page 225]and definition. Are they not ultimately to be decided some where? Or is the difficulty of deciding, to justify the cap­ture of every American vessel loaded with provisions, or any other article; for the articles which are to become contraband, are as undefined as the occasion which makes them such? I again ask, sir, by what rule is this question, so important to our commerce, to be decided? You say, by the law of nations! but where is this law to be found? The writers on the law of nations, like the writers on every other law, differ from each other; but if the cases are precisely laid down, why not state them? Was the chief justice of the United States less capable of doing this than the captain of a Providence privateer? These cases could either be defined with precision, or they could not: in the first case, they should have been stated; in the last they should not have been affirmed by the signature of our envoy. But when an American vessel is brought into a British port, the maritime judge must do what the chief justice of the United States and Lord Grenville could not do; he must determine, whether her cargo, consisting of provisions and other articles, is or is not within the case in which they may become contra­band. Now, let me ask, sir, whether, after what we have seen of their decisions, it was prudent to leave the whole commerce of these United States to their mercy, by giving them an un­limited power to judge, in cases of so much intricacy, that you yourself could not agree upon them? Do you reflect, sir, that you have, by this very article, authorized them, even if, contrary to their usual practice, they conform to the law of nations, to condemn every vessel going to any port of France, or their colonies, with provisions, or returning from their islands to any port in Europe, loaded with the produce of those islands, and that they derive this right from the very words of your treaty? The rule of the law of nations, as laid down by Vattel, and which is also a rule of the civil law, is thus: "that if he who can and should explain himself clearly and fully, neglects to do it, so much the worse for himself; he shall not be ad­mitted afterwards to make restrictions, which he has not ex­pressed." Now, the court of Great Britain has officially told us, that she has a right by the law of nations, under the peculiar circumstances of France, to interdict all trade in provisions with her or her islands; as also to prevent any part of the pro­duce of her colonies from being carried in neutral vessels to any port in Europe; the clamours excited by neutral powers, and the apprehension of drawing upon herself new enemies, made her suspend some of these constructions: but with respect to us, as appears from Mr. Pinckney's and Mr. Hammond's [Page 226]letters, she still keeps up the right, as she says, under the law of nations. Her courts, conforming to this sentiment, [...] uniformly condemned a great number of cargoes, agreeably [...] the law of nations, say they, as expressed in those instructions. During the whole of Mr. Jay's negociation, there was no for­mal revocation of them, but their admiralty courts proceeded to condemn. Under these circumstances, Mr. Jay agrees, [...], That there are cases (other than those of blockaded ports) in which provisions and other articles are contraband; and he agrees too, in effect, that the British courts of admiralty [...] determine what those cases are; does not this amount to an im­plicit relinquishment of our construction of the law of nation [...] Are we not the party whose interest it is (agreeably to the doc­trine laid down by Vattel) to explain ourselves clearly and ful­ly; and does not our neglect to do it (agreeably to the same authority) justify the British construction of the law of national. Does it not relinquish our claim for every injury we have suff [...] ­ed under the very instructions which Mr. Jay was sent to [...] ­monstrate against? And this fully proves, what I before a [...] ­ed, that Mr. Jay's commissioners could give no redress to [...] citizens for the loss of their property, under those instructions. That the British have viewed the treaty in this light, is [...] from the orders that they have lately renewed for the [...] our vessels going to France or Holland, dating their order [...] the time in which they might reasonably suppose the [...] would have been ratified here.

These observations apply with equal force to the third mem­ber of this article: For as the British claimed a right to declare a whole nation at a time in a state of siege, even [...] that nation had beat them out of the field, to capture and con­demn all vessels going to any port of such nation, and as [...] as this moment agree, that our vessels might be so captured [...] condemned, without defining, or in any part limiting the words, blockade and siege, do we not tacitly agree to their construction of the term? Repugnant as this definition is to the established and known laws of nations, it is very remarkable, that where the most rigid construction of the laws of nations can be made to operate against us, in order to preserve them in full forts, and in contradiction of the settled practice of modern times, Mr. Jay has added to these laws, the weight of a national stipu­lation against his constituents—but where the writers on natural law advance a principle, beneficial to us, Mr. Grenville's treaty cautiously avoids putting it out of doubt, or giving it any addi­tional force. Thus Vattel declares, "That it is now received, that full faith and credit should be given to certificates and sea [Page 227]letters, &c. that the master of the ship presents, unless a fraud appears, or there be good reason of suspicion."—Lib. III. chap. vii. (114)—and in every treaty of commerce, and navigation, that has been made, for upwards of one hundred years back, this principle is enlarged upon, and violences in boarding a ship, to examine her papers, guarded against by fixing that the a [...]med ship shall remain at a distance, that the neutral vessels shall be boarded by two or three men only, that full faith shall be given to papers, &c. Yet not one word of this is to be found in Mr. Jay's treaty, except a mere vague agreement, that nei­ther party shall injure the other in their persons or estate, and shall make good all damages and be punished for outrages, without defining what these outrages are, or fixing a line, which it should always be an outrage to pass.

That the British idea of outrage differed from ours, we know; for Mr. Jay himself possessed the fullest evidence of out­rages committed by captains of men of war and privateers, in plundering our vessels, and pressing and ill-treating our seamen; yet we hear of no officer that has lost his ship or commission on this account: and as to private suits, every man knows, that the expense and distance will prevent their being brought. With all the treaties hitherto entered into by the United States before him, as well as all other treaties made for a series of years past, which are accurate on this point, could Mr. Jay be ignorant of the common practice of nations? Was he ignorant, that the abuses we daily suffered at sea, in the boarding our ships, with numerous bodies of armed men, in the contempt manifested for our papers, in breaking up the hatches, and endangering the ship, were among the causes of complaint that the president sent him to prefer? If he was not, why are not these evils guarded against by an express stipulation, that faith shall be given to pa­pers, that no ship shall be searched or detained, where her papers are fair, and she does not refuse to show them! why are not privateers ordered to remain without gun shot (as in our treaty with France, and the treaty of France with Britain, &c.) while no more than two, or at most three hands are admitted on board the neutral ship? Why are vague and general terms substituted for these wholesome provisions, unless it be with design to sub­ject our commerce to unceasing insults?

The same abandonment of our navigation runs through every commercial article. By the seventeenth, the British are empow­ered (contrary to the principles of the armed neutrality, which have evidently changed the law of nations, by the general con­sent of the great community of civilized nations, and to which Britain herself has in effect acceded, in this particular, by her [Page 228]late treaty with France) to take enemies' property from on board our vessels. One would have imagined, even if the law of na­tions had been clearly against us, that mere delicacy, with respect to the nations with whom we have treaties, by which we can protect the property of their enemies from them, would have induced us to refrain from a stipulation, by which we volunta­rily sacrificed their property under the protection of our flag [...] their enemies.

But that Mr. Jay did not think the law of nations on this point settled, appears from the last parts of the twelfth arti [...] after the war: but one would certainly have expected, that [...] this article rendered every vessel we have, liable to search [...] detention, that two points would at least have been settled [...]— 1st. That such papers would have been agreed upon, as would have saved the risk and danger of a search at sea. 2d. T [...] when a vessel, brought into port on suspicion of having ene­my's property on board, was dismissed, she should have her freight and demurrage, &c. paid immediately: that none [...] hands should be taken out of her [...] that she should be, [...] time she was taken, till she left the port; at the risk of the [...] ­tors.—Yet we do not find a single stipulation of this kind [...] article, none even for port charges or law expenses, if [...] wrongfully brought in.—But it is left wholly to the discre [...] of the courts of admiralty, whether they will give any or [...] damages, &c. That they will give none in most cases, past ex­perience has fully confirmed.

If it is said, the law of nations entitles neutral ships to da­mages, &c. I ask whether the law of nations has hitherto been the law of the British courts of admiralty? And, whether [...] express stipulation would have given us too great a se [...]rity against West India and Bermuda judges? I ask, whether the neglect to make any precise stipulation in this case, is not a new proof, of what I have before observed, that where the law of na­tions was favorable to us, no stipulation is made to enforce [...] and that where it is unfavorable, there it is strengthened by an express provision? an instance of both occurring in this very article.—Doubts might be entertained, whether neutral ships should not protect enemies property—these doubts are deter­mined against us, by the express words of the article; while our right to freight, &c. is left to Judge Green's construction of the laws of nations.

No. X.

IT may not be improper now to review our commerce, as it would stand, were the treaty carried into effect. The Indian trade from Canada, alone, produced at public sales in London, in 1784, £. 230, 000 sterling. The duties thereon were in round numbers, £. 17, 000. The tonnage of furs and peltry, about 1000 tons. The exports from Canada in furs, exceeded in 1785, that of the preceding year, about £. 70, 000 sterling, and has, I believe, continued to increase; so that this branch of trade may be fairly estimated at near 100, 000 dollars yearly. As nine­tenths of the Indian nations, who carry on this trade (if the territories of the Hudson Bay company are excepted) live within the boundaries of the states, as we enjoyed every advantage in the right to the posts and postages, the greatest part of this va­luable trade must have been ours, had not Mr. Jay thought proper to cede it, in effect, to the British, as I have before stated. The Indian trade, in the sourthern part of our territories, is principally in peltries, which are too bulky to be transported in any other way than upon large rivers; the Mississippi will be the out-let for a very great proportion of them. This commerce must have been exclusively ours; for though, by the treaty of Paris, the British might navigate the Mississippi; yet, as they did not own a foot of land upon either of its banks, it became im­possible for them to avail themselves of this advantage; whereas the United States possessing all the Indian country, in the vici­nity of that river, and the east bank for many hundred miles, could, when they pleased, establish factories, and monopolize that commerce; and in addition to this, carry on a very import­ant (though illicit) trade with the Spaniards, who own the oppo­site bank. This our minister extraordinary was too munificent to allow us to avail ourselves of. He therefore provides, in the third article, "that all the ports and places, on its eastern side, to whichsoever of the parties belonging, be freely resorted to and used by both parties, in as ample a manner as any of the Atlantic ports or places, &c." then comes a clause declaring, "that all goods and merchandizes, whose importation into the United States is not wholly prohibited, may freely, for the pur­poses of commerce, be carried into the same, in the manner aforesaid, by his majesty's subjects; and such goods and mer­chandizes shall be subject to no other or higher duties than would be payable by the citizens of the United States on the importation of the same in American vessels, in the Atlantic ports of the said states." I have already shown, that the effect of this last provision is to give British ships a bounty proporti­oned [Page 230]to the amount of the equalizing duty on the out and house voyage, taken together, to the prejudice of American vessels; which, with the perfect equality of rights, that they hold i [...] common with our own citizens, and an addition of 46 [...] extra tonnage, and light money, with which, as I have before shown, our vessels will be charged, must put this important commerce into the hands of the British. This, I presume, [...] have been the intention of our minister, when he speaks of the ports on the eastern bank of the Mississippi, to which soever of the parties belonging; for, as the British have no ports on the eastern side, Mr. Jay must have looked forward to a time when these extraordinary bounties to their commerce and perfect secu­rity for their establishment, should have enabled them to po [...] themselves of that country; and that, though the article is not reciprocal at present, by the prudence and good management of our envoy, it may, in time, be rendered so. This article i [...] perpetual; so that bidding an eternal farewell to all comm [...]e with our own country, we turn our anxious eyes to some other to supply its place: The terms on which our good friends, the British, propose to open their islands to us, are such, it [...], as even our senate cannot approve; are such as Camill [...]-him­self abandons; it may, however, be some consolation to [...] know, that these islands, whose trade we were to purchase [...] the dereliction of several very valuable branches of comm [...] are not of so much importance as the advocates of Britain w [...] have us suppose, and for that reason I insert the following tables:

So that, after all, were our other branches of commerce lest unfettered, we should be able to do without that of the British islands, which only amounts to about one-eighth of the whole West India trade. And such is the dependence of those islands upon us, that they must either starve or be supplied by us upon our terms. As this was too obvious to escape the attention of Lord Grenville, and our minister, they have provided, 1. That we shall impose no new duties on tonnage; that is, in other words, that, treat us as she will, Britain shall still have the [Page 231]right to carry our produce to her islands in her own vessels, to the exclusion of ours. 2. That she shall also, if she pleases, prevent our carrying our produce to the French or Dutch islands, or their produce to Europe, at least during a war, which has been, for one hundred years back, thirty years out of seventy; since she has nothing to do but to declare them in a state of siege, or to allege that the articles are contraband, or that this is one of the cases in which they may become con­traband, though not generally so; and she will then be justified, by the treaty, in carrying them into her own ports, where sea­men may be pressed on board their ships of war, seduced to swear that the cargo is enemies' property, and thus the whole be confiscated; or if this great evil should be avoided, compel the owner to pay his own expenses, and to take whatever the captor shall deem a reasonable profit, without any regard to the loss he sustains, in the breaking up his voyage, &c.

In peace, France will, with justice, avail herself of the ar­ticle which entitles her to put her trade upon the same footing as that of the most favored nation, become her own carrier, and banish our vessels from her islands, as we have permitted the British to exclude us from theirs. Europe, perhaps, will be more favorable to us. But here again we have, by the equaliz­ing duty, and the extra-tonnage and light money, rendered it impossible to carry our commodities to Britain in our own ves­sels; while we, at the same time, bind ourselves not to give such advantages to other nations as would open new markets for them. Britain then must continue to navigate; for no other merchants must monopolize our commerce; her officers must strut upon our exchanges with all the "dignity due to their commissions;" her high commissioned courts may drag us from one end of the continent to the other; must establish new rules of jurisprudence; and you, my unhappy fellow citizens, must be content with the humble offices of hewers of wood and drawers of water, to these insolent islanders.

During the war, the concessions relative to contraband amount to an absolute prohibition of any trade in naval stores, timber, provisions, and any other article, which the British please to call contraband, under existing circumstances, either with France or Holland.

The new treaty with the Algerines, will exclude you from Portugal, and render your voyages to Spain dangerous.

With the Baltic we have little commerce that will bear a war-freight, other than in the West India produce, which Bri­tain has said we shall not carry to Europe; and Mr. Jay has acceded, expressly in the 12th, and impliedly in the [...]th arti­cle, [Page 232]to this prohibition; so that the commerce of the world (the East Indies and Great Britain alone excepted, and this latter, as I have said, can only be carried on, in peace at least, in British bottoms is interdicted to us. During war, indeed, we may continue to carry, while the insurance is less on our ships than on those of Britain, provided that our seamen will choose to continue in a service in which they are liable to re­peated insults; provided that the wants of the British mary shall permit them to leave us any, of which there may be some doubts, as we just learn that a single frigate (since the treaty was advised to be ratified) pressed 35 of our seamen upon our own coast, and another, the Hermione, no less than 70 in the West Indies: A ship, too, we are informed, loaded with pro­vision, has been carried into England, agreeably to an exp [...] stipulation in Mr. Jay's treaty, either under pretence that the provision is contraband, or that it is enemies' property; and before any investigation into the merits of the capture, every seaman is taken out and put on board a frigate.

Our whole stock of seamen does not much exceed 12, 000. How long this will last, with such deduction, and the i [...]e lose of those of our sea-faring citizens who are carried i [...] the islands, and compelled to serve on board ships of war in that unhealthy station, I am unable to say. Now let me [...], w' ther our commerce is not upon a much worse footing, th [...] it was before Mr. Jay [...] to England? Whether every injury, for which he was [...] to seek redress, has not been re [...]d with double rigour? Whether by yielding that the British may, of right, search [...]ur ships, and confiscate the property of [...] allies, which they before did by force, we have not ceded to those allies a right to declare that our ships shall no longer p [...] ­tect the property of their enemy? Can we expect, that they will suffer their treaties to entangle them, and extend protecti­ons to their enemies? It is not to be expected; they will be compelled, by necessity, to treat us, as we have agreed that the British shall treat us; in which case, as Britain will not let us trade with France or Holland, France and Holland will inter­dict our commerce with Britain, Spain, and Portugal; and thus the trade and navigation of this country be finally destroy­ed, by the means that were intended for its protection.

How different has Mr. Jay's conduct been from Mr. Pinck­ney's! Read his letters to Lord Grenville. He maintained our right to protect neutral property; he protested with firmness against the absurd idea of naval stores and provisions being con­traband; he saw the wide difference between admitting a thing to be right, and yielding to the necessities of the moment, which [Page 233]circumstances might hereafter enable us to contend against with success. Indeed it may be doubted whether the right given by treaty to take enemies' property out of our vessels, is not a "privilege or immunity" granted to the commerce and naviga­tion of Great Britain; in which case, by the third article of our treaty with France, they have also a right to claim it; which establishes an important distinction between suffering this from necessity, and granting it by treaty.

The ill effect which this treaty must have upon our national character, exceeds all calculation. A young nation, like a young man, is bound to be particularly solicitous on this head; nor can any thing be more repugnant to the interest and honor of the country, than the shocking indifference that our ministerial writers and their newspapers endeavour to inculcate on this head. Thus they say, "We are growing rich in spite of all these injuries; let us mind our business—let us submit. We shall hereafter be strong, when we may bluster at our leisure." What should we think of the tutor that should inculcate on a young man the same maxims? "Suffer yourself to be kicked and cuffed now, while you are young; let your sister be ravish­ed, and your wife be debauched, by the letcher who permits you to get money. What though he insists upon sharing a part of it with you, and now and then lays his cudgel over your head? Submit now to smile upon him; by and by you will be as strong as he is, and then you may bully him in turn."— What, I say, should we think of such a tutor, but that he was a villain and a scoundrel, who was leading his pupil through the dread of present evil to debase his character, and to invite infinitely greater evils in future, than those he feared to meet at present. What first raised the American character, and ac­quired for it the admiration of the world? Was it tame sub­mission to [...]e injuries of Britain? Was it a scrupulous calcu­lation of what we might gain, or what we might lose, by the controversy? No, my fellow citizens; it was a bold resistance. It was an ardent passion for honor and freedom, that left all calculation of personal interests out of sight, and counted every thing was lost, if these were not won.

No. XI.

IN my former numbers, I endeavoured, 1st, To shew that the object of Mr. Jay's mission, so far as related to a com­pensation for the injuries received, and security against future aggression, was not accomplished. While I was yet writing, the renewal of them proved, beyond contradiction, that my re­marks were well founded, and that the British construction of the treaty was unhappily too similar to my own; since they on­ly waited to give sufficient time for its ratification, to recom­mence, with added violence, their depredations on our trade, and their outrages against our citizen seamen. I then examined the treaty in a mere commercial light, without indulging my­self in those general reflections which arose naturally from the articles under consideration. I proceed now to consider it in a political point of view—Would to God, my fellow citizens, I could here find some source of consolation, some ray of light, to irradiate the sullen gloom!—But alas! every step we take, plunges us into thicker darkness. We might, perhaps, have submitted to past losses; have seen our commerce given away without an equivalent; our navigation ruined; our seamen (I blush with shame and indignation, while I say it) our citizen seamen delivered over to the insolence of brutal tyrants, could our national honor have been preserved in future—could [...] ­ances, formed by interest and gratitude, have been left [...] paired—could peace have been established upon firm and honor­able terms—could the private rights of our citizens, the public ones of our government, have remained unviolated—but the indiscriminate ruin of all these is too much to be borne in si­lence. Even the coward-advocates for peace, feel their spirits arise at the unexampled indignities which this treaty imposes. And for what? Are we nearer peace (if by peace is meant the security of our persons and property, from foreign depredations) than when Mr. Jay left this country? Is there a single outrage which we suffered before, which is not continued to this mo­ment? And yet the advocates for the treaty are continually ringing in our ears, the blessings of peace, the horrors of war; and they have the effrontery to assure us, that we enjoy the first and have escaped the last, merely (to borrow a ministerial term) through the instrumentality of the treaty. Does any body believe, that if we had continued to suffer the British to plun­der our trade, to man their ships with our seamen, to possess our frontiers in quiet, the they would have declared war upon [Page 235]us, at least till they had conquered France? And can any man deny, that it would have been better to have preserved this dar­ling, but base-born bantling, which excites our blushings while we fondle it, by mere submission, than to legitimate the bastard, and compel ourselves for ever to maintain it upon the same dis­graceful terms, by marrying its lewd mother? In a political view, the treaty is bad; as it detaches us from engagements which our interest and honor equally invite us to maintain: as it sacrifices our friends to our enemies, and holds forth to the world, that those nations who treat us worst, will share the greatest portion of our attachment; and that, like fawning spaniels, we can be beaten into love and submission, notwith­standing the corrupt maxims that were circulated under the signature of Pacificus, with a view to promote the league of despots against France.

Notwithstanding the indecent attempts that were made about the same time, by several members of congress, to shew that we owed her no affection, the principles of gratitude have still maintained their ground in this country; and they have been strengthened by the necessity which every American felt, of se­curing some ally against the design which Britain almost open­ly avowed, of again reducing this country, when her means, strengthened by the interest she had in our councils and in our commercial cities, should afford her a prospect of attempting it with success. It is singular to observe the extreme solicitude with which a party, among us, have endeavoured to detach the af­fections of this country from the only nation with whom its true interest would prompt it to form a close and strict alliance, not only because its government is similar to our own, but be­cause its commerce is more advantageous to us than that of any other nation in the world; while its manufactures are such as can supply the greatest part of our wants, its demands for our produce are so much larger than that of any other nation, that she actually pays us a considerable proportion of that ba­lance in money which we are compelled to remit to Great Bri­tain on the losing commerce which we carry on with her. It will be remembered here, that near two millions of our former exports to England, were consumed in France, and as much more in other countries. It will be remembered, too, she gives the highest encouragement to our navigation, while her insular rival uses every means to depress it. Yet whenever any attempt has been made to encourage this commerce or strength­en this alliance, the most violent clamours have been excited by the British faction, aided by our own royalists, and the slightest incidents have been seized with avidity to render her [Page 236]obnoxious. Thus the imprudent warmth of Mr. G—t called forth all the zeal of the party; ministers, chief justices, sena­tors, &c. joined in full cry, to run down the French nation, under the appearance of regard for the honor of their own, while they were so totally regardless of its interests as to over­look the offers that he brought, of such commercial advantages as might have made us see with contempt, the narrow policy of the British government in excluding us from their islands, which the liberality of France must have compelled her to open to us on our own terms.

And yet these very men have heard with the utmost indiffer­ence the insulting speech of Lord Dorchester—the insolent cor­respondence of H—d, which went, both in matter and man­ner, far beyond any thing written by G—t; and while they discouraged a connection with France, founded upon mutual advantages, they meanly supplicate Britain to treat with us upon her own terms, and contrive that this treaty should serve the double purpose of connecting us with her, and detaching us from France. At the same time, they have the effrontery to assert, that the treaty contains no article which can reasonably give umbrage to France, or which in any way derogates from the friendship that should subsist between the two nations. I shall proceed briefly to consider the truth of this assertion.

In the enumeration of contraband, Mr. Jay has included ar­ticles which are essential to France, and which have not been considered, as far as I have been able to discover, as contraband in any treaty for 140 years past. In admitting that provisions may be contraband in any case (except when going to a place blockaded) Mr. Jay has also admitted, what no treaty ever be­fore did, though tyrants have sometimes claimed a right to stop them. The United States had evidently no interest in either of these articles; of course they could not be reciprocal, nor is any equivalent offered for them. France and Britain were at war: these articles were protected in going to the latter by our treaty with France; so that in admitting them to be contraband, [...] necessarily confine the sale of them to Great Britain, and exclude France from availing herself of our commerce in these articles, un­less at the utmost risque and expense; we make their generosity in excepting them from the list of contraband (if they really were such by the law of nations) afford the means of furnishing them to their enemy: for if our treaty with France and Britain were similar in this respect, the risque and expense would have been equal in going to either country; and both would have obtained these commodities upon pretty much the same terms. It is evi­dent, then, that these articles could only have been diclated by [Page 237]a spirit hostile to France, and as such they are a direct breach of our neutrality.

Vattel, in enumerating the cases in which a neutral na­tion may carry on a commerce with the belligerent powers, has these words, which directly apply to the case before us: "If they (the neutral nation) refuse to sell me any article, and take measures to supply my enemy with it in abundance, with a view to favor them, this partially is a breach of the neutrality." Whatever has been said with respect to the above article, ap­plies with equal force to the right that the treaty gives to Bri­tain to confiscate the property of their enemy found on board our vessels, contrary to the modern law of nations, and their own admission of its principles in their treaty with France. But if any thing was wanting to show the hostility of these articles, it could be found in the time we had pitched upon to enter into them, and that we had stipulated for their continu­ance. 1st, as I have said, France was actually at war. 2d, By the 12th article it is agreed that these provisions shall continue in force during the present war, and for two years after, when the parties "will renew their discussions, and endeavor to agree, whether in any, and what cases, neutral vessels shall protect enemies' property; and in what cases provisions, and other arti­cles, not generally contraband, may become such."

From this it is evident, that these were questions of doubt in the minds of the contracting parties; they were speculative questions, as capable of solution in the present moment, as at any future period; the discussion of them could have no refer­ence to a war between powers with whom we were at peace; the declaring, therefore, that this doubt should be construed as unfavorably as possible to France, and directly in favor of the British, even to the partial injury of our own commerce, with­out any apparent equivalent, and that, too, during the war, how long soever it may last, is so unequivocal a proof of hosti­lity, that it is impossible to mistake the intention of the con­tracting parties, which, reduced to plain language, is this: "these articles may be inconvenient in future; but as the exe­cution of them will be very injurious to France, whose reduc­tion we both wish, we agree that his Britannic majesty shall have the full benefit of them, for the present; and when, by this operation, he shall have reduced France to submission, we will agree to modify them, so as to render them conformable to our interests." Injurious as these articles are to our commerce, the baseness and perfidy of them are so much more so to our national character, that the first of these considerations is al­most lost in our resentment of the last. By the 24th article it [Page 238]is expressly stipulated, that no power at war with Britain shall sell their prizes in our harbours.

Now by the law of nations, independent of treaties, any nation may carry her prize to a neutral port, and sell it, Vat. 3 lib. ch. vii. 132; and accordingly, France has hitherto been permitted, without any express stipulation in her treaty, so to do. To withdraw this right, now, in the midst of a war, though not expressly against the law of nations, has certainly a most ungracious and unfriendly appearance; especially as it is done without our being able to apologize for it by any interest that we can have, at least during this war, in the sti­pulation. As it was foreseen, at the time that the treaty was entered into, that Holland must be conquered, and that she would make an ally of France; the 25th article, which admits the British to bring their prizes into our ports, and forbids the armed vessels of any other nation (France excepted) to enter them, unless forced by stress of weather, &c. and which agrees that we shall not in future, let any other nation share this favor, is certainly no evidence of a friendly attachment either to France or Holland; and yet these powers were our friends and allies, when Britain was our bitterest foe. I forbear to remark upon the stipulations we have made in favor of the navigation of Britain, as speaking the same unfriendly language; since this is a less aggression and will undoubtedly be returned upon us by other nations; so that the whole loss will ultimately [...] upon ourselves, and the crime carry with it its own punishment. The liberality which France manifested to us in our distress— the succour she afforded us—and the unexampled generosity she manifested in taking no advantage of our situation, to im­pose unjust or hard conditions upon us, certainly should have rendered us cautions of favoring a nation, that has wantonly, and without the slightest provocation, declared herself her ene­my, and used the most barbarous and unjustifiable means to distress her. We should have shuddered at being parties to a compact, to starve 26 millions of our fellow creatures—at the thought of aiding Britain in her endeavours to repeat in Europe the horrid barbarities she had committed in India. We should, even if we had no obligations to France, and been blind to our own interest, we should still, for the sake of humanity, have resisted a treaty, which admitted, that the necessaries of life could, in any case, be justly withheld from a famished nation. But if all these motives had no weight with us, we should have reflected on the forbearance, the delicate regard that France has shown to our circumstances, even in the midst of her dis­tress. By our treaty we have guaranteed her islands to her; [Page 239]these islands are attacked; she is entitled to the benefit of our guarantee. Yet she has forborn to ask it, as she believed it inconsistent with our interest to go into the war. Can we ex­pect the same forbearance, after the predilection we have ma­nifested for her most inveterate enemy? if not, are we prepared to choose between a breach of faith with her, the relinquish­ment of her guarantee of our independence, or a war with Britain?

No. XII.

AS every neutral nation may, without forfeiting that cha­racter, suffer the belligerent powers to dispose of prizes in their harbours—as the United States will generally be at peace, while Britain is engaged in wars, 30 years out of 70, very considerable advantages would result from this circum­stance.—During a general European war, the commodities of all nations would be sold (as prize goods generally are) at a low rate, would supply our own wants, and be transported in our vessels to every part of the globe, and the demand for commo­dities and mechanics, necessary to the fitting of vessels, would add to our wealth and stimulate our industry.—To relinquish these advantages without an equivalent, is certainly very unwise, particularly when it is considered, that our situation in the neighbourhood of the colonies of all the maritime powers, must render the free admission of some and the exclusion of their enemies, extremely important to them. We have, there­fore, been very tenacious of this privilege, and denied it even to Holland, who may be considered as one of our earliest allies. Yet the 24th article of Mr. Jay's treaty expressly stipulates, that no foreign nation, at war with Britain, shall sell her prizes in our harbours, excludes their armed vessels, and stipulates that similar privileges shall be granted to no other nations; and all this without any equivalent—For though the provision i [...] mutual, yet the advantage is entirely on one side—1st, Because Britain being our only natural enemy (by natural enemy is un­derstood one whose interests clash, either because of the conti­guity of their territorries, or rivalry in their pursuits) it is highly improbable that we shall be engaged in any war in which she is not a party against us. 2d, Because our distance from Europe will prevent our being often engaged in those controversies which convulse that quarter of the globe. 3d, Because there is no [Page 240]naval war in which Britain is not a party; if we should happen to be engaged on the same side with her, we should mutually use each others ports without a treaty; if we should be opposed to her, the treaty will cease to operate; so that in every view, we have made a very important concession in this particular, without having acquired any thing in return. The article is ex­tremely exceptionable in another point of view. The construc­tion is so doubtful, that a similar article gave birth all the con­troversy between our government and Mr. Genet. It would certainly have been prudent then to have varied the expression, and steered clear of this ambiguity in treating with a nation who wrests every possible doubt to her own advantage—and who finds chief justices and senators, and ministers extraordi­nary, and advocates, among ourselves, ready to support her con­structions, be they ever so absurd.

By the 15th article, we are prohibited from imposing any specific duty on British articles, which we do not extend to all other nations, from increasing our tonnage duty or imposing any greater charge on the importation of goods in British bot­toms than now subsists. I have already shown the mischievous effect of this article upon our navigation. I will now consider it, as it regards our political relation with other nations.— Treaties are bargains, in which something is given in return for some other received. Those, then, that put it out of their power to give, cannot hope to receive. Suppose, for instance, we should find it convenient, in order to procure a market for our fish and oil, to bargain with France for their free admission into her ports, and promise in return to receive her manufac­tures of silk at a less duty than we impose upon the same arti­cles brought from elsewhere. This is the policy of Britain with respect to Portugal, whose wines she favors in preference to those of other nations, in return for advantages she derives from her commerce.—This article puts such a bargain entirely out of our power; yet suffers Britain to continue her restric­tions upon a variety of our commodities. While it remains in force, no treaty whatever in favor of our manufactures, navi­gation, or commerce, can be entered into with other nations; thus, notwithstanding we have not any equivalent from Britain, in return for this article, any relaxation of her oppressive sys­tem of navigation, we bind our hands with respect to every other nation—and while she closes one door upon us, promises to leave our commerce and navigation imprisoned without mak­ing the smallest effort to open another.

The tenth article of the treaty partakes of the evils of the above, in the want of reciprocity, and in depriving us of the [Page 241]means of doing ourselves justice, without recurring to arms, when the laws of nations with respect to us are violated. By this article, neither the debts due to individuals, nor money in the funds, are to be sequestered or confiscated. First, this is not mutual; because it is well known that few Americans trust their money in British funds, since the establishment of our own. And a balance of about ten millions (exclusive of stock) is due from our citizens, on the general average, to the subjects Britain. By the law of nations, this property may be seques­tered; though, in general, it has been the practice of late, since the commercial connections of nations have multiplied, not to forfeit it, and that, principally, because the balances being mu­tually due, little advantage would accrue to the nation.

As to the justice or injustice, it never has been made a question; the rule of nations is, "that the property, either private or public, of an enemy, may be taken," and I believe it would be difficult to show, that it was more just to rob the merchant of his goods at sea, because his sovereign was at war, than to forfeit his debts; both being equally the property of an enemy, both tending equally to distress the individual, and neither being a violation of a private contract, because the nation who makes the forfeiture is no party to such contract. If the rights of humanity are considered, a capture at sea is a much greater breach of them, since it is frequently attended with the loss of life, and always with the loss of liberty. The stigma, therefore, that our minister was pleased to introduce into the treaty on this subject, could only have been intended as an illiberal reflection upon those virtuous men in our national legislature, who conceived this a proper fund, out of which to compensate the losses committed by the unjust violences of Bri­tain. That there are cases in which the sequestering and even the forfeiture of debts would be proper, can hardly be disputed; as, for instance, where it might prevent the aggressor from going into a war, by the fear of losing a considerable stake in the hands of his enemy. Where a war has actually broke out, and the sum due is so great as to disable the debtor nation from carrying it on with effect, if she suffered so large a balance to be remitted to her enemy; or where the enemy nation relies on that balance, to support her military operations; surely it will not be disputed, that in either of these cases, in which the safety of the nation so evidently required it, it would be highly imprudent and unjust to the people, to suffer such debts to be paid. So likewise, where the creditor nation had manifested the most hostile intentions, had stimulated barbarians to lead your people into captivity—had employed savages under their [Page 242]influence, to break up your frontiers, and to murder your wives and children—had, without any pretence from justice, or the laws of nations, compelled your people to fight under their banners against your allies—and had given such interruptions to your commerce, as to distress and ruin your merchants— surely it would be but a slight retaliation for these wrongs, to say to such nation, "we will detain in our hands the balance due to you, till you make ample compensation for the injury you have done us, and if you do not us us justice, we will ap­ply the money ourselves." Our situation is very peculiar; the balance we owe to Britain, including stock in the funds, banks, &c. cannot be less than twenty-five millions of dollars, a much greater sum than the whole circulating specie of the United States. If it should be known in Britain, that a war with us was intended, as much as possible of this capital would instant­ly be withdrawn from America; the consequence would be, if the government should not interpose to prevent the evil, and retain the money, that in the moment that we wanted credit most, at the entrance into a war, the nation would be bank­rupt; the banks and merchants to whom it would look for sup­plies, would be ruined and unable to afford them aid, while the credit of Britain, supported by our payments, would enable them to effect our destruction.

Again, by the laws of civilized nations, unnecessary and wanton destruction is prohibited; but the seaport towns of America are extremely exposed. Should Britain, in a war with us, or even without war, under some trifling pretence, think proper to burn our towns, and by this means ruin the mer­chants that were indebted to them, would it not be just in the government, to retaliate upon their merchants, by retaining these debts, until compensation was made, or even to make compensation themselves out of this money? and where is the difference between making it answer one breach of the law of nations more than another? Why is it less proper to compensate the seamen who have lost their liberty, the family who have lost a father or a son, or a merchant who has lost his property, by the most direct violence; than the citizen whose wharf and store are wantonly burned? The truth is, that this debt in our hands had a very considerable influence upon the politics of Britain, with respect to us. There is a great portion of the monied men, who generally go with administration, that would be sensibly affected by the forfeiture, and who are tremblingly alive to every operation of our government with respect to it; while we can work upon their fears, they will always be the advocates for peace with us; remove their apprehensions, and [Page 243]they will go with administration. There is great reason to be­lieve, that the propositions in congress to sequester this debt, produced the relaxations in their predatory system that took place immediately after. Now, that Mr. Jay has convinced them that they have nothing to fear in future, they have renewed them with equal violence. Can any thing be a better comment­ary upon the treaty, than the present conduct of their marine? I know that much will be said in reply to this, on the sanctity of public credit, &c. which may indeed prove what I shall readily admit, that so violent a remedy should not be recurred to on slight occasions; but nothing can be said to prove, that no occasion will justify such recurrence, or to convince a free people, that their representatives are not the proper judges of the occasion.

The strict law of nations, as laid down both by Vattel and Binherst, is, that such debts may be forfeited; the USUAL practice is, to stay the payment, but, not forfeit the debts; and the constant practice is, to pay the proceeds of real property, held by the subject of an enemy; into the public treasury, and yet this case is much stronger than the case of debts; because the holder of real property derives his title from the state itself; but it is deemed absurd to let property pass from a state (when at war) to its rival, in order to feed the fire that is to consume themselves.

Let me ask, if a contract were made, during peace, by the merchants of one nation to deliver arms and ammunition to the merchants of another, and a war was to break out, or even to be rendered probable between these nations, would it be wrong to stop the delivery of those arms, though they should have been actually paid for? And is money less a necessary of war, in the present state of things, than arms? Should we be less weaken­ed by paying all the current specie of the country, stopping our banks, and sinking the public funds, than by sending away a few tons of powder, or some hundred stand of arms? But if the law of nations on this subject is clear, to what purpose en­ter into new stipulations to give it a more binding force? A breach of the law of nations by an enemy, often renders that right which would otherwise have been wrong; retaliation is one of the laws of nations; but that law, so frequently essenti­al to the support of our rights, is, by this article, entirely taken away, so far, at least, as relates to this object. And yet, this is the ground on which we might retaliate with the greatest pros­pect of success. But in any event, as we will always be the debtor nation, to what purpose are our hands bound? What equivalent do we receive for this important concession? The [Page 244]having it in our power to hold this up in terrorem, if we never made any other use of it, might answer important purposes. Who can say, that it may not be at sometimes proper to dis­courage the British from engrossing too great a share in our stocks and banks, or even giving too great a credit to our mer­chants? we already see the influence they have acquired over the politics of the country by means of these.

The fact is, that this article is dictated by the same princi­ple that pervades so many others in the treaty; our trade and navigation are surrendered to the British. Colonies of their mer­chants and factors are to be established on the north and on the west, on the sea coast and on the Mississippi Our banks are to be placed in their hands, and that the thraldom of the coun­try may be complete, every encouragement is to be held out to their brethren in England, to extend their credit and fetter the country by the excess of their debt; at the same time, all the resources of the country are to be surrendered to them, even out last farthing is to be drawn away, whenever it may be found necessary to bring us back to our former state of dependence upon their sovereign. Would it not have been wiser in Ameri­ca, to have submitted to the stamp act, with the advantages we enjoyed under the British government, than by yielding to this treaty, to render ourselves equally dependant, without enjoying the rights of subjects? All that she would have drawn away in taxes, would not have equalled our present debt; our seamen would not have been treated so harshly as they now are; our commerce would have been less deranged; and the disgrace of slavery would have been less degrading, if we never had been free.

No. XIII.

THE few advocates that the treaty has yet met with, pre­tend to be zealously attached to the constitution of the United States; and endeavour to persuade weak minds that the opposition to it has originated in opposition to the federal government, and in party views and party principles; yet un­fortunately for them, it has so happened, that the states in which there is least of party spirit, manifest most warmth and most unanimity in their opposition. Thus South Carolina, and the city of Charleston particularly, Maryland, Delaware, Jersey, and New-Hampshire, have contained no antifederal party; yet [Page 245]they are more decided in their disapprobation of the treaty, than New York, Philadelphia, or Boston, where such parties have been supposed to exist. Is it not evident, then, that the sup­port the treaty has received, has originated in party principles, aided by the British interest; while the principal opposition, originating with men who are distinguished for their attach­ment to the federal government, must be attributed to pure and disinterested patriotism, at whose shrine they have sacrificed their predilection for men and measures, where that predilecti­on clashed with their committee's reports?

It is remarkable, too, that if we look over the list of names of the persons who were members of congress in 1775 and 1776, and subtract from them persons immediately connected with the government, and who may be supposed to have influ­enced the treaty, we shall find them decided in their opposition to it, even though many of them have for years past retired from politics, and in no sort interfered in the parties of the day.

In Carolina, both the Rutledges and Gadsden.—In Virginia, Jefferson, Madison, the grave and moderate Chancellor Wythe, who himself presided at the meeting that addressed the presi­dent on the subject of his proclamation, which was then deem­ed a test of violent federalism, together with every distinguish­ed citizen of that important state, not holding an office.—In Delaware, the celebrated John Dickinson, the Pennsylvania farmer, whose enlightened pen was among the first, and cer­tainly the most distinguished, that has been marshalled on the side of American freedom.—In Pennsylvania, Governor Mifflin, Chief Justice M'Kean.—In New Jersey I believe none of the old members of congress are now living; but the uniform senti­ment of that federal and patriotic state, may be urged as a proof of what their sentiments would have been, had they lived to blush at this blot on their country's honor.—In New York, Floyd and Livingston are known to be decidedly opposed to the treaty. What are those of Schuyler and Duane, Lewis and Morris, the only surviving members, Jay excepted, I know not. That Mr. Jay, though he has made the treaty, does not approve of its principles (unless, in leed, Mr. Jay the negocia­tor, is a different man from Mr. Jay the writer of an address to the citizens of New York on the subject of the federal go­vernment) is obvious; for that address, if examined, will be found to urge our union as a mean to regulate our commerce, or to compel foreign nations to relax their impositions, and even to open their islands to us; I speak from memory, not having the address before me. Now, if this sentiment was just then, when our numbers, wealth, and resources, were much [Page 246]less than at present; and when Britain was at peace, and one hundred millions less in debt than at this day, Mr. Jay must necessarily disapprove now of a treaty, which puts it out of our power to regulate our own commerce; which confirms all the restrictions that we then considered as hostile to our trade and navigation, and an infinite number of new ones, that did not then exist: which, instead of opening their islands, closes them upon us, unless we will consent to purchase an insignificant right to visit them in boats, by a disgraceful surrender of an im­portant part of our commerce. So that we may, on the fullest proof, deduced from his unbiassed declaration, under his own hand, number Mr. Jay among those who in sentiment disap­prove of the treaty. The opinions of the then members of Connecticut, if any of them survive, or those of Mr. Samuel Adams or of Mr. Paine (who, however, holds an office) I am unacquainted with. Neither of the gentlemen who then held a place in congress, from Rhode Island, are now living. The on­ly surviving member of that day from New Hampshire (Mr. Langdon) has given his most decided opposition to the treaty; though in so doing, he left his friends in the senate in whom he had most confidence, and the party with which he [...] generally voted. As far as I have yet learned, not one native American, who in those trying times directed the councils of America, and is or has been unconnected with the present ad­ministration, has manifested a sentiment favorable to this dis­graceful treaty. How little credit then must those advocates [...] it deserve, who endeavour to prop their miserable edifice, by representing its opponents as a factious few, and men ignorant of the great interests of their country?

To this positive evidence of the sense of Americans, upon this subject, may be added very important negative testimony, deduced from the character of its most stedfast supporters. Without having a reference to men in office (whose views it may be improper to explain) we find every British subject, and every man who has been uniformly hostile to American inde­pendence, on the side of the treaty. That a few others, who wish well to their country, have acquieseed in the measure, I am ready to acknowledge; attachment to party, personal friendship, a considence in some on whom they are used to re­pose their political sentiments, family connection, will, in eve­ry question, have more or less influence. But as all these pro­fess themselves decided friends to the constitution of the United States, I am persuaded that they will change their sentiments when they are convinced of the un [...]s [...]itutionality of the treaty, of its being at war with every check, with every provision, [Page 247]by which it guards against the intrusion of one branch upon the rights of another, and which, if suffered, would terminate in despotism.

It will be found that no ratification by the president and senate can carry this treaty into effect, without the concurrence of congress; nor, in some points, even with such concurrence, without the aid of the state legislatures.

No rule is better established, than, that in construing any legal instrument, the whole must be taken together; that if two different parts appear to militate against each other, such a construction, if possible, is to be given them, as to render each sensible without rejecting either; for it is absurd to sup­pose, that contradictions can be intended, or that unmeaning provisions would be purposely inserted. The constitution of the United States has desined the powers of its different branches—to the executive, it has given a power to make treaties; to the judiciary, a right to judge of all cases arising under such treaties; to congress, a right to regulate commerce with fo­reign nations and with the Indians, to define piracy, to establish offices, to settle the salary of officers, and to raise and appro­priate money. These powers are perfectly distinct from each other, and may be all exercised without interference—Thus the president and senate may make treaties of peace, of alli­ance, of neutrality, &c. but not such treaties as shall abridge the rights, either of congress or of the judiciary, as to those matters that are expressly reserved to them.

On the other hand, congress shall not interfere, in any trea­ties, as to those objects which are not expressly reserved to them; nor can they take from the judiciary the right to deter­mine all questions arising on treaties, while such treaties re­main in force. On any other construction, one branch of the constitution might possess itself of all the powers reserved to the others. Thus, if the power to make treaties includes a right to regulate commerce, to raise money, to declare war, to appoint officers and settle their salaries, to establish new courts and new rules of jurisprudence, to place in other hands, rights reserved to the judiciary of the United States, to natu­ralize foreigners, to define and punish piracy and other offences against the United States, then the president and senate, by combining with a foreign nation, can invest themselves with all power, and congress and the judiciary must become useless. If, for instance, the president and senate can agree that three British and two Americans, or vice versa, may draw money at their discretion out of the public treasury, they must, as incident to the power, have a right to appropriate public mo­ney, [Page 248]to controul appropriations already made, and to fill the treasury, if empty, by taxes. For it would be absurd to say, that they have a right to give away public money, and yet that they have no money to give: a clear power always supposes every thing necessary to effectuate such power. If it is said, that they may stipulate for the payment of money; but that congress may or may not, at their discretion, raise and appro­priate it to the use designated by such stipulation, then it will follow, that no treaty, which comprises powers reserved to congress, can be binding, until they give it their sanction: in such case, any ratification by the president and senate, until they obtain the assent of congress, must be nugatory; and as it may, also, involve us in disagreeable discussions with foreign powers, it must be intended that they have no right to such useless and perhaps dangerous ratifications. If, indeed, every article made a distinct treaty (which I believe will hardly be contended) then they might, without such assent, ratify these articles which did not interfere with the rights of congress, but as to all others they have no power. If, on the other hand, after a treaty is entered into, congress have no discretion, but must necessarily enact laws to carry it into effect, all the pow­ers of government would be resolvable into the president and senate, and congress are a mere instrument in their hands. And to the millions Mr. Jay has already given away by the treaty, might be added, all the wealth of the United States. A treaty of commerce might tax even our exports in the face of the constitution; for surely if such a treaty can prohibit the exportation of certain commodities as the 12th article does, it might tax them, inasmuch as a prohibition involves greater power than taxation.

If they can create new crimes by treaty, and define the pu­nishment of them, the whole criminal code is subjected to the will of the president and senate. If they can exempt a favorite nation from the operation of existing laws, they may impose burdens upon others: for to repeal a law is not less a legislative act than to make one. Their being able to effectuate this by treaty only, and not in ordinary cases, instead of diminishing, adds to the evil, and the danger the constitution would incur by this construction; since it would thereby enable them to call in a foreign power, to aid in their usurpations; and as such creaties might be kept secret till every necessary measure was taken to enforce them, all resistance to oppression would be vain; nor could the president or senate incur any risk by any attempt to seize all powers under pretence of a treaty, if we once admit that a right to make treaties includes every other [Page 249]power of government. There are so many absurdities involved in these positions, that it becomes our duty to shew that they do not exist in the constitution, but are to be avoided by an easy and natural construction. First, it appears from the pow­ers given to congress, that they are in every instance to retain their free agency, and cannot be compelled by any other branch of the government to do any act—the words of the constitution are, "congress shall have power;" then follows the enumeration of their powers. They cannot then be forced to raise money in consequence of any treaty, nor to do any other act, derogatory to the rights vested in them. The laws they have passed, or shall pass, in pursuance of such powers, remain in full force, notwithstanding any treaty the executive may form, derogatory to them; nor is there a word in the constitution that sets trea­ties above the laws of the United States; both together with the constitution itself, are called supreme laws, as contra-dis­tinguished to the laws of particular states only. The words in article VI. of the constitution are, "This constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. And the judges in every state, shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." It will certainly not be pretend­ed, that treaties are superior to the constitution, under which they are made; on the contrary, as it is held that laws them­selves have no force in opposition to the constitution; so it may be inferred from the order in which they are placed, as well as the reason of the thing, that treaties are inferior in force to laws.—Were it otherwise, when a treaty was once ratified, however it might be abused, how destructive soever it might be to the United States in its operation, we never could get rid of it; because the judges, who are sworn to observe the laws, would enforce it. And yet there are many cases, enumerated by the writers on the law of nations, in which a treaty may be justifiably broken; and numberless reasons may exist with the sovereign of the country for violating it.

The only true and sound construction of the constitution is, that treaties are to have the force of laws; but, like all other laws, are subject to the will of the sovereign, that is, to con­gress; that the power of the president in making treaties, can only extend to cases that are not reserved by the constitution to congress; that whenever he negociates as to other objects, his negociations must be authorized by a prior or subsequent law. Though this construction may involve some inconveniencies, yet [Page 250]it avoids absurdities. It gives force to every part of the constitu­tion; it rejects no provisions in it, nor makes one part clash with another. It is consistent with the practice in mixed go­vernments—thus, in Britain, the king may make treaties; but, when money is necessary to carry them into effect, when they clash with the laws of the nation, a legislative provision is ne­cessary to give them effect. And the parliament can at any time make laws in the face of a treaty; though, until such laws are made, the treaty is respected by the courts. Whatever has been said with respect to the rights of the president and senate, as opposed to the exclusive rights of congress, applies with equal force to the rights of states; where the treaty is made relative to objects not surrendered by them, the treaty that is binding upon them, must be constitutionally made, and consist with the powers yielded to the federal government; otherwise the president might barter away the independence of individual states, which makes a necessary part of the constitution of the United States, and which is expressly guaranteed.

Now, let us apply these principles to the treaty—And to be­gin with the sixth article. By this article commissioners are to be appointed, two by the British king, two by the president and senate; the fifth by the other four, or by lot. These com­missioners are to sit as a court, to determine questions relative to the demands of the British merchants—They are to examine the parties on oath, to fix their own rules of evidence, and to decide not by the laws of the country, but according to their ideas of j [...]tice and equity. Their decision is to be both arbi­trary and final.

The first enquiry is into the right of the president and senate to appoint the commissioners contemplated by this article. If they have any such right, it must be derived from the constitu­tion; for it will not be pretended that the king of Great Britain can give them new rights, or that they can enlarge their own power, by entering into a treaty with a foreign nation. Yet the only powers the president and senate have, relative to this object, are, to "appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein pro­vided for, and which shall be established by law." Here the officers that the executive may appoint, are enumerated; and so careful is the constitution to prevent their using any impro­per discretion, in the creation of unnecessary officers, that it expressly limits the powers of appointment as to all others, to such as shall be es [...]shed by [...]ve. The only question, then, is, whether the commissioners contemp [...] by the treaty are in [Page 251]the class of enumerated officers—They are not ambassadors, consuls, judges of the supreme court, nor are they established by law. To say that the treaty is a law, and that therefore all officers established by treaty, are established by law, would only be to argue in a circle, and to go back [...]o the point we started from. It would be to assert, that every thing might be done by treaty, which could be done by law; and, as I have before said, that under the form of a treaty, the president and senate might assume all powers, legislative, executive, and judiciary. The question then is, whether they are the public ministers con­templated by the constitution? It is evident, from the words public ministers, following the word ambassadors, and preceding the word consuls, that diplomatic ministers only could be in­tended; since it takes the highest and lowest of these, and uses general words to "other public ministers," to designate the various intermediate grades. But surely, commissioners, who are to hold their sessions in our own country, and to determine questions of private jurisprudence, cannot in this sense be de­nominated public ministers; as well might we call the auditor a public minister, because he settles the accounts of strangers and citizens; or the attorney general, whose duty it is to see that the subjects of foreign princes are not maltreated. In one sense, indeed, not only they, but every other officer of the state, is a public minister; but that this is not the sense of the constitu­tion, is evident from its enumerating certain public officers, as, for instance, judges of the supreme court (who, [...] is exten­sive sense, are also public ministers) and from its [...] [...]ring the right of appointment, as to all others; "to such as shall be established by law" it is evident, that the constitution must have assixed some specific idea to the words "other public ministers." What that idea was, appears clearly from the context; and it would be the grossest abuse, to extend it to a species of officers that never existed either in this, nor, as I believe, in any other country in the world. In the third section, the same idea is still pursued—"He shall receive ambassadors and other public mi­nisters."

The constitution also preserves a right to vest the appoint­ment of officers (other than those enumerated) either in the president alone, the courts of law, or the heads of departments. By what authority, then, can Mr. Jay and Lord Grenville, or the president and senate, over-rule the constitution, and assume a power to controul the rights of congress, to create the of­fice, and to place it in such hands as they think proper, under the above limitations? But such are the powers of these com­missioners, as even congress itself cannot authorize, without [Page 252]viclating the constitution.—They are to determine upon cer­tain rights, which British subjects claim under the treaty of Paris, which was an existing treaty at the time the constituti­on was acceded to; of course, must have been in contempla­tion when the second section of the third article of the sede­ral constitution declared, "that the judicial power shall ex­tend to ALL CASES in law and equity arising under this con­stitution, the laws of the United States, and treaties made, or which shall be made, under their authority." "In all cases of admiralty and maritime jurisdiction, to controversies to which the United States shall be a party."

Now, let me ask, whether the cases that are to fall under the jurisdiction of these commissioners are not, 1st, A case un­der a treaty made? and 2d, whether the United States are not parties? What power then exists either in the president and senate, or even in the legislature, to assume this right, which the union has vested in a judiciary, whom it has expressly de­clared to be independent of both: Or will it be said, that the power of making treaties, implies a right to trample under foot every check that the constitution has provided against the abuses of either branch of government? Should the treasurer of the United States pay money out of the treasury in pursuance of any adjudication of these commissioners, and be afterwards called to an account for the same, before the judges of the supreme court, could he expect that they would suffer him to issue an order which clashes with their own powers and dero­gates fr [...]e constitution? I know that incoveniencies may arise fr [...]re not existing a power in the United States to determine controversies arising under treaties by the interven­tion of commissioners; I know also, that great security is de­rived from having the true construction of them determined by the courts, and preventing the misapplication of public money, by leaving the disposition of it to tribunals that are bound by none of the solemn forms of law: Whether the inconvenience does or does not over-balance these advantages, is at present out of the question. It is sufficient for me, and should be for the executive, that such is the constitution: If it is defective, let it be amended; but while it exists, it is sacred.

The eighth article also provides for the payment of this high commission court, and settles, that their salaries and expenses shall be regulated by treaty; so that the president and the se­nate are not only to appoint officers unknown to, and in the face of, the constitution, but to assume a right which they ne­ver yet have presumed to exercise, even where the officers were legally appointed, that of fixing their salaries—and this tou in concurrence with his Brit [...]nnic majesty.

No. XII.

THE remaining allegations, in disparagement of the third article, are to this effect

• 1. That the exception of the country of the Hudson's Bay company, owing to its underfined limits, renders the stipulations in our favor, in a great measure, nugatory.
• 2. That the privileges granted to Great Britain in our Mississippi ports, are impolitic, because without reciprocity.
• 3. That the agreement to forbear to lay duties of entry on pel­tries, is the surrender, without equivalent, of a valuable item of revenue, and will give the British the facility of carrying on their fur trade through us, with the use of our advantages.
• 4. That the articles, which will be brought from Europe into Canada, coming duty free, can be afforded cheaper than the same articles going thither from us, charged with a heavy duty on their importation into the United States, and with the ex­pense of a long transportation by land, and inland navigation.
• 5. That the population of Canada, which, by a census in 1784, amounted only to 123, 082 souls, is too small to render the supply of European and Asiatic commodities, throu [...], of so much importance as to bear any comparison with [...] loss by the sacrifice of the fur trade.
• 6. That the intercourse to be permitted with the British territories will fa [...]tate smuggling, to the injury of our revenue.
• 7. That the much greater extent of the United States than of the British territories, destroys real reciprocity in the privileges granted by this article, giving, in fact, far greater advantages than are received.

These sug­gestions will be discussed in the order in which they are here stated:—

1. It is true, that the country of the Hudson's Bay compa­ny is not well defined. Their charter, granted in 1670, gives them "the sole trade and commerce of and to all the seas, bays, streights, creeks, lakes, rivers, and sounds, in whatso­ever latitude they shall be, that he within the entrance of the streights commonly called Hudson's Streights, together with all the lands, countries, and territories upon the coasts and con­fines of the said seas, streights, bays, &c. which are now ac­tually possessed by any of our subjects, or by the subjects of any other Christian prince of state"

[Page 254] To ascertain their territorial limits, according to charter, it would be necessary to know what portion of country, at the time of the grant, was actually possessed by the subjects of Great Britain, or of some other Christian prince or state; but though this be not known, the general history of the country, as to settlement, will demonstrate, that it could not have extended far westward, certainly not to that region which is the scene of trade in furs, commonly called the north west trade, carried on by the Canada company from Canada; the possession of whi [...], as far as possession exists, is recent. We learn from a traveller who has lately visited that region, that one of this company's establishments is in lat. 56, 9, N. long. 117, 43, W. that is, about 20 degrees of longitude westward of the lake of the Woods; and it is generally understood, that the entire scene of the trade of this company is westward of the limits of the Hudson's Bay company.

Canada, on the north, is bounded by the territories of the Hudson's Bay company.—This is admitted by the treaty of Utrecht, and established by the act of parliament in 1774, commonly called the Quebec act.—The treaty of Utrecht pro­vides for the settlement of the boundaries by commissaries. I have not been able to trace whether the line was ever actually so settled; but several maps lay down a line as the one settled by the treaty of Utrecht, which runs north of the lake of the Woods.

In a [...] [...]us situated, the United States will justly claim, under the article, access to all that country, the trade of which is now carried [...]through Canada. This will result both from the certainty that there were no actual possessions, at the dare of the charter, so far interior, and from the fact of the trade being carried on through a different channel, by a different company, under the superintendance and protection of dif­ferent government, that of Canada. It may be asked, why was the article embarrassed by the exception of the country of the Hudson's Bay company? The answer is this, That the charter of this company gives to it a monopoly within its limits, and, therefore, a right to trade there could not have been granted, with propriety, to a foreign power, by treaty. It is true that it has been questioned, whether this monopoly was valid against British subjects, seeing that the charter had not been confirmed by act of parliament. But besides that this doubt has been consined to British subjects, it would appear, that, in fact, the company has enjoyed the monopoly granted by its charter, even against them, and with at least the implied approbation of par­liament. In the year 1749, petitions were preferred to the [Page 255]house of commons, by different trading towns in England, for rescinding the monopoly, and opening the trade.—An enquiry was instituted by the house. The report of its committee was favorable, to the conduct and pretensions of the company, and against the expediency of opening the trade; and the business terminated there.

This circumstance of there being a monopoly, confirms the argument drawn from the fact, that the north west trade is carried on through Canada by the Canada company: a decisive presumption, that the scene of that trade is not within the country of the Hudson's Bay company, and is, consequently, within the operation of the privilege granted to us.

Though it will be partly a digression, I cannot forbear, in this place, to notice some observations of CATO, in his Xth number—After stating, that in 1784 the peltry from Canada sold in London for 230, 000 l. sterling, he proceeds to observe, that, excluding the territories of the Hudson's Bay company, nine-tenths of this trade is within the limits of the United States; and, though with studied ambiguity of expression, he endeavours to have it understood, that nine-tenths of the trade which yielded the peltry, that sold for 230, 000 l. sterling in 1784, was within our territories. It is natural to ask, how he has ascertained the limits of the Hudson's Bay company (which, at other times, is asserted, by way of objection to the article, to be altogether indefinite) with so much exactness as to be able to pronounce what proportion, if any, of the trade carried on through Canada may have come from that country, [...]wards the calculation which has led to the conclusion, that nine-tenths of the whole lies within our limits? The truth is indubitably and notoriously, that whether any or whatever part of the peltry exported from Canada may come from the country of the Hud­son's Bay company, seven-eights ^* of the whole trade which fur­nishes that peltry, has its source on the British side of the boundary line. It follows, that if it were even true, that only one-tenth of the whole lay in that part of the British territory, which is not of the Hudson's Bay company, inasmuch as only one-seventh of it lies within our limits, the result would be, that the trade, in which we granted an equal privilege, was to that in which a like privilege is granted to us, as one­seventh to one-tenth, and not, according to Cato, as nine to one. This legerdemain, in argument and calculation, is really too frivolous for so serious a subject. Or, to speak more pro­perly, it is too shocking, by the spirit of deception which it [Page 256]betrays. Cato has a further observation, with regard to the trade with the Indians, in the vicinity of the Mississppi, and from that river into the Spanish territories.—The product of all this trade, he says, must go down the Mississippi, and, but for the stipulation of the third article, would have been exclusively ours; because, "by the treaty of Paris, though the British might navigate the Mississippi, yet they did not own a foot of land upon either of its banks; whereas the United States pos­sessing all the Indian country, in the vicinity of that river and the east bank for many hundred miles, could, when they pleased, establish factories and monopolize that commerce." This asser­tion, with regard to the treaty of Paris, is in every sense incor­rect; for the seventh article of that treaty, establishes as a boundary between the dominions of France and his Britannic majesty, "a line drawn along the middle of the river Mississip­pi, from its source to the river Iberville, and from thence by a line drawn along the middle of this river and the lakes Maure­pas and Pont Chartraim to the sea," and cedes to his Britannic majesty all the country on the east side of the Mississippi. By the treaty of Paris then, his Britannic majesty owned all, ex­cept the town and island of New Orleans, the territory on the east side of the Mississippi, instead of not having a foot of land there.

What part of this territory does not still belong to him, is a point not yet settled. The treaty of peace between the United States and Great Britain, supposes that part will remain to Great Britain; for one line of boundary between us and her, designated by that treaty is a line due west from the lake of the woods to the Mississippi. If, in fact, this river runs far enough north to be interfected by such a line, according to the supposition of the last mentioned treaty, so much of that river, and the land upon it, as shall be north of the line of intersec­tion, will continue to be of the dominion of Great Britain. The lately-made treaty, not abandoning the possibility of this being the case, provides for a survey to ascertain the fact; and in every event, the intent of the treaty of peace will require, that some closing line, more or less direct, shall be drawn from the lake of the Woods to the Mississippi. The position there­fore, that Great Britain has no land or ports on the Mississippi, takes for granted, what is not ascertained, and of which the contrary is presumed by the treaty of peace.

The trade with the Indian country on our side of the Missis­sippi, from the Ohio to the lake of the Woods (if that river extends so far north) some fragments excepted, has its present direction through Detriot and Michillimachinac, and is in­cluded [Page 257]in many calculations, heretofore stated, of the proportion which the Indian trade within our limits, bears to that within the British limits. Its estimated amount is even understood to embrace the proceeds of a clandestine trade with the Spainsh territories; so that the new scene suddenly explored by Cato, is old and trodden ground, the special reference to which can­not vary the results that have been presented. It is still unques­tionably and notoriously true, that the fur trade within our limits, bears no proportion to that within the British limits. As to a contingent traffic with the territories of Spain, each party will be free to pursue it according to right and opportu­nity; each would have, independent of the treaty, the facility of bordering territories. The geography of the best regions of the fur trade, in the Spanish territories, is too little known, to be much reasoned upon; and if the Spaniards, according to their usual policy, incline to exclude their neighbours, their precautions along the Mississippi will render the access to it circuitous: a circumstance which makes it problematical, whe­ther the possession of the opposite bank is, as to that object, an advantage or not, and whether we may not find it conveni­ent to be able, under the treaty, to take a circuit through the British territories.

2. It is upon the suggestion of Great Britain having no ports on the Mississippi, that the charge of want of reciprocity in the privileges granted, with regard to the use of that river, is founded. The suggestion has been shown to be more peremptory than is justified by facts. Yet it is still true, that the ports on our side bear no proportion to any that can exist on the part of the British, according to the present state of territory. It will be examined in a subsequent place, how far this disproportion is a proper rule in the estimate of reciprocity. But let it be ob­served, in the mean time, that in judging of the reciprocity of an article, it is to be taken collectively. If, upon the whole, the privileges obtained, are as valuable as those granted, there is a substantial reciprocity; and to this test, upon full and fair examination of the article, I freely refer the decision. Besides, if the situation of Great Britain did not permit in this particular, a precise equivalent, it will not follow that the grant on our part was improper, unless it can be shown, that it was attended with some inconvenience, injury, or loss to us; a thing which has not been, and I believe cannot be shown. Perhaps there is a very importantly beneficial side to this question. The treaty of peace established between us and Great Britain, a common interest in the Mississippi; the present treaty strengthens that common interest. Every body knows, that the use of the river is denied so by Spain, and that it is an Indispensible outlet to [Page 258]our western country. Is it an inconvenient thing to us, that the interest of Great Britain has, in this particular, been more completely separated from that of Spain and more closely con­nected with ours?

3. The agreement to forbear to lay duties of entry on pel­tries, is completely defensible on the following grounds, viz. It is the general policy of commercial nations to exempt raw materials from duty. This has likewise been the uniform policy of the United States; and it has particularly embraced the article of peltries, which, by our existing laws, may be import­ed into any part of the United States free from duty. The ob­ject of this regulation is the encouragement of manufactures, by facilitating a cheap supply of raw materials. A duty of entry, therefore, as to such part of the article as might be worked up at home, would be prejudicial to our manufacturing interest; as to such part as might be exported, if the duty was not drawn back, would injure our commercial interest. But it is the general policy of our laws, in conformity with the prac­tice of other commercial countries, to draw back and return the duties which are charged upon the importation of foverign commodities. This has reference to the advancement of the export trade of the country; so that, with regard to such pel­tries as should be re-exported, there would be no advantage to our revenue from having laid a duty of entry. Such a duty, then, being contrary to our established system and to true princi­ples, there can be no objection to a stipulation against it.— As to its having the effect of making our country the channel of the British trade in peltries, this, if true, and it is indeed probable, could not but promote our interest. A large propor­tion of the profits would then necessarily remain with us, to, compensate for transportation and agencies. It is likely, too that to secure the fidelity of agents, as is usual, copartnerships would be formed, of which British capital would be the prin­cipal instrument, and which would throw a still greater pro­portion of the profits into our hands. The more we can make our country the entrepot, the emporium of the trade of foreigners, the more we shall profit. There is no commercial principle more obvious than this, more universally agreed, or more ge­nerally nerally practised upon, in countries where commerce is well understood.

4. The fourth of the above enumerated suggestions, is an­swered, in its principal point, by the practice just stated, of drawing back the duties on importation, when articles are re­exported. This would place the articles, which we should send into the British territories, exactly upon the same footing, as [Page 259]to duties, with the same articles imported there from Europe. With regard to the additional expense of transportation, this is another instance of the contradiction of an argument, which has been relied upon by both sides, which is, that taking the voyage from Europe in conjunction with the interior transport­ation, the advantage, upon the whole, is likely to be in our favor. And it is upon this aggregate transportation, that the calculation ought to be made. With respect to India or Asiatic articles, there is the circumstance of a double voyage.

5. As to the small population of Canada, which is urged to depreciate the advantages of the trade with the white inhabi­tants of those countries, it is to be observed, that this popula­tion is not stationary. If the date of the census be rightly quoted, it was taken eleven years ago, when there were alrea­dy 123, 082 souls. It is presumable, that this number will soon be doubled; for it is notorious, that settlement has proceeded for some years with considerable rapidity in Upper Canada; and there is no reason to believe that the future progress will be slow. In time to come, the trade may grow into real mag­nitude; but be it more or less beneficial, it is so much gaified by the article; and so much clear gain, since it has been shown not to be true, that it is counterbalanced by a sacrifice in the fur trade.

With regard to the supposed danger of smuggling, in the intercourse permitted by this article, it is very probable, it will be found less than if it were prohibited. Entirely to prevent trade between bordering territories is a very arduous, perhaps an impracticable task. If not authorized, so much as is carried on must be illicit; and it may be reasonably presumed, that the extent of illicit trade will be much greater in that case, than where an intercourse is permitted, under the usual regu­lations and guards. In the last case, the inducement to it is less, and such as will only influence persons of little character or principle, while every fair trader is, from private interest, a centinel to the laws; in the other case, all are interested to break through the barriers of a rigorous and apparently unkind prohibition. This consideration has probably had its weight with our government in opening a communication through lake Champlain with Canada; of the principle of which regu­lation, the treaty is only an extension.

7. The pretended inequality of the article, as arising from the greater extent of the United States than of the British ter­ritories, is one of those fanciful positions, which are so apt to haunt the brains of visionary politicians. Traced through all its consequences, it would terminate in this, that a great em­pire [Page 260]could never form a treaty of commerce with a small one; for, to equalize advantages according to the scale of territory, the small state must compensate for its deficiency in extent, by a greater quantum of positive privilege, in proportion to the difference of extent, which would give the larger state the monopoly of its trade. According to this principle, what wretched treaties have we made with France, Sweden, Prussia, and Holland! For our territories exceed in extent those of either of these powers. How immense the sacrifice in the case of Holland; for the United States are one hundred times larger than the United Provinces.

But how are we sure, that the extent of the United States is greater than the territories of Great Britain on our conti­nent? We know that she has pretensions to extend to the Paci­fice Ocean, and to embrace a vast wilderness, incomparably larger than the United States, and we are told, as already men­tioned, that her trading establishments now actually extend beyond the 56th degree of north latitude, and 117th degree of west longitude.

Shall we be told (shifting the original ground) that not extent of territory, but extent of population is the measure? Then how great is the advantage which we gain in this particular, by the treaty at large? The population of Great Britain is to that of the United States, about two and a half to one; and the comparative concession by her in the trade between her Eu­ropean dominions and the United States, must be in the same ratio. When we add to this the great population of her East India possessions, in which privileges are granted to us, with­out any return, how prodigiously will the value of the treaty be enhanced, according to this new and extraordinary rule!

But the rule is, in fact, an absurd one, and only merits the notice which has been taken of it, to exhibit the weak grounds of the opposition to the treaty. The great standard of recipro­city is equal privilege. The adventitious circumstances, which may render it more beneficial to one party than the other, can seldom be taken into the account, because they can seldom he estimated with certainly; the relative extent of country or po­pulation, is of all others, a most fallacious guide.

The comparative resources and facilities for mutual supply, regulate the relative utility of a commercial privilege; and as far as population is concerned, it may be laid down, as a gene­ral rule, that the smallest population graduates the scale of the trade on both sides, since it is at once the principal measure of what the smaller state can furnish to the greater, and of what it can take from the greater; or, in other words, of what the [Page 261]greater state can find a demand for in the smaller state. But this rule, too, like most general ones, admits of numerous exceptions.

In case of a trade by land and inland navigation, the sphere of the operation of any privilege can only extend a certain distance. When the distance to a given point, through a par­ticular channel, is such that the expense of transportation would render an article dearer than it could be brought through ano­ther channel to the same point, the privilege to carry the article through that particular channel to such point, becomes of no avail. Thus the privilege of trading by land or inland naviga­tion from the British territories on this continent, can procure to that country no advantage of trade with Princeton in New-Jersey, because supplies can come to it on better terms from other quarters. Whence we perceive, that the absolute extent of territory or population of the United States, is no measure of the relative value of the privileges reciprocally granted by the article under consideration, and, consequently, no criterion of the real reciprocity of the article.

The objectors to the treaty have marshalled against this arti­cle a quaint figure, of which from the use of it in different quarters, it is presumable they are not a little enamoured; it is this, that the article enables Great Britain to draw a line of circumvallation round the United States. They hope to excite prejudice, by presenting to the mind, the image of a siege or investment of the country. If trade be war, they have chosen a most apt figure; and we cannot but wonder, how the unfor­tunate island of Great Britain, has been able so long to main­tain her independence amidst the beleaguering efforts of the number of nations with whom she has been imprudent enough to form treaties of commerce; and who, from her insular situ­ation, have it in their power to beset and hem her in on all sides. How lucky it is for the United States, that at least one side is covered by Spain, and that this formidable line of cir­cumvallation cannot be completely perfected! or rather how hard driven must those be, who are obliged to call to their aid, auxiliaries so preposterous!

Can any good reason be given, why one side of a country should not be accessible to foreigners, for purposes of trade, equally with another? Might not the cultivators on the side from which they were excluded, have cause to complain, that the carriage of their productions was subject to an increased charge, by a monopoly of the national navigation; while the cultivators in other quarters enjoyed the benefit of a competi­tion between that and foreign navigation? and might not all the inhabitants have a right to demand a reason, why their [Page 262]commerce should be less open and free, than that of other parts of the country? Will privileges of trade extend the line of territorial circumvallation? Will not the extent of contigu­ous British territory remain the same, whether the communica­tions of trade are open or shut? By opening them, may we not rather be said to make so many breaches in the wall, or intrenchment, of this newly invented circumvallation? if in­deed it be not enchanted!

The argument upon this article, has hitherto turned, as to the trade with the white inhabitants of the British territories on European and East India goods. But there can be no doubt that a mutually-beneficial commerce in native commodition ought to be included in the catalogue of advantages. Already there is a useful interchange of certain commodities, which time and the progress of settlement and resources cannot fail to extend. It is most probable, too, that a considerable part of the productions of the British territories will find the most con­venient channel to foreign markets through us; which, as for as it regards the interest of external commerce, will yield li [...] less advantage, than if they proceeded from our own soil or industry. It is evident, in particular, that as far as this shall be the case, it will prevent a great part of the competition with our commodities which would exist, if those productions took other routes to foreign markets.

In considering the subject, on the side of a trade in home commodities, it is an imporrtant reflection, that the United States are much more advanced in industrious improvement, than the British territories. This will give us a material and grow­ing advantage. While their articles of exchange with us will essentially consist in the products of agriculture and of mines, we shall add to these, manufactures of various and multiplying kinds, serving to increase the balance in our favor.

In proportion as the article is viewed on enlarged plan and permanent scale, its importance to us magnifies. Who can say how far British colonization may spread southward and down the west side of the Mississippi, northward and westward into the vast interior regions towards the Pacific Ocean? Can we view it as a matter of indifference, that this new world is eventually laid open to our enterprize, to an enterprize second­ed by the immense advantage already mentioned, of a more improved state of industry? Can we be insensible, that the precedent furnishes us with a cogent and persuasive argument to bring Spain to a similar arrangement? And can we be blind to the great interest we have, obtaining a free communica­tion [Page 263]with all the territories that environ our country, from the St. Mary's to the St. Croix.

In this large view of the subject, the fur trade, which has made a very prominent figure in the discussion, becomes a point scarcely visible. Objects of great variety and magnitude, start up in perspective, eclipsing the little atoms of the day, and promising to grow and mature with time.

The result of the whole is, that the United States; make by the third article of the treaty a good bargain—that with re­gard to the fur trade, with equality of privileges and superior advantages of situation, we stake one against seven, or at most one against six—that as to the trade in European and East Indian goods and in home productions, we make an equal stake with some advantages of situation—that we open an im­mense field of future enterprize—that we avoid embarrassments and dangers ever attendant on an artificial and prohibitory policy, which, in reference to the Indian nations, was particu­larly difficult and hazardous—and that we secure those of a natural and liberal policy, and give the fairest chances for good neighbourhood between the United States and the bordering British territories, and consequently of good understanding with Great Britain, conducing to the security of our peace. Experience, no doubt, will demonstrate that the horrid spec­tres which have been conjured up, are fictions; and if it should even be slow to realize the predicted benefits (for time will be requisite to give permanent causes their due effect in controul­ing temporary circumstances) it will at last prove, that the pre­dicted evils are chimeras and cheats.

No. XIII.

THE fourth and fifth articles of the treaty, from similarity of object, will naturally be considered together. The fourth, reciting a doubt, "whether the river Mississippi ex­tends so far north-westward, as to be intersected by a line drawn due west from the lake of the Woods, in the manner mentioned by the treaty of peace" agrees, that measures shall be taken in concert between the two governments, to make a joint survey of that river, from a degree of latitude below the [Page 264]falls of St. Anthony, to the principal source or sources there­of, and of the parts adjacent thereto; and that if in the re­sult it should appear that the said river would not be inter­sected by such a line as above mentioned, the two parties will proceed by amicable negociation, to regulate the boundary line in that quarter as well as all other points to be adjusted between them, according to justice and mutual convenience, and the intent of the treaty of peace. The fifth, reciting that doubts have arisen, what river was truly intended under the name of the river St. Croix, mentioned in the treaty of peace, and forming a part of the boundary therein described, provid [...] that the ascertainment of the point shall be referred to th [...] commissioners, to be appointed thus: one to be named by his Britannic majesty, another by the president of the Uni [...]d States, with the advice and consent of the senate, the third by these two, if they can agree in the choice; but if they can­not agree, then each of them to name a person, and o [...] of the persons named, one drawn by lot in their presence to [...] the third commissioner—These commissioners are to mee [...] Halifax, with power to adjourn to any place or places they [...] think proper—are to be sworn to examine and decide [...] question according to the evidence which shall be laid be [...] them by both parties—and are to pronounce their decisi [...] which is to be conclusive, by a written declaration under thei [...] hands and seals, containing a description of the river and particularly the latitude and longitude of its mouth and of i [...] source.

These articles, though they have been adjusted with critical propriety, have not escaped censure. They have even in one instance been severely reprobated, as bringing into question, things about which there was no room for any—and which a bare inspection of the map was sufficient to settle.

With regard to the Mississippi, there is no satisfactory evi­dence that it has ever been explored to its source.—It is even asserted, that it has never been ascended beyond the 45th de­gree of north latitude, about a degree above the falls of St. Anthony. Fadeus's map in 1793, will serve as a specimen of the great uncertainty which attends this matter. It notes that the river had not been ascended beyond the degree of latitude just mentioned, and exhibits three streams, one connected with the Marshy Lake in that latitude, another with the White Bear Lake near the 46th degree, and the third with the Red Lake in the 47th degree; denominating each of the two first, "the Mississippi by conjecture," and the last, "Red Lake River, or Laboutan's Mississippi,"—all of them falling considerably [Page 265]short, in their northern extent, of the lake of the Woods, which is placed as high as the fiftieth degree of north latitude. Thus stands this very clear and certain point, which, we are told, it was disgraceful on the part of our envoy to have suf­fered to be brought into question.

There is, however, a specific topic of blame of the article which has greater plausibility. It is this, that it does not finally settle the question, but refers the adjustment of the closing line to future negociation, in case it should turn out that the river does not stretch far enough north to be intersected by an east and west line from the lake of the Woods. I answer, that the arrangement is precisely such as it ought to have been. It would have been premature to provide a substitute till it was ascertained that it was necessary—This could only be done by an actual survey—A survey is therefore provided for and will be made at the joint expense of the two countries.

That survey will not only determine whether a substitute be requisite or not; but it will furnish data for judging what sub­stitute is proper, and most conformable to the true intent of the treaty.—Without the data which it will afford, any thing that could have been done, would have been too much a leap in the dark. National acts, especially on the important subject of boundary; ought to be bottomed on a competent knowledge of circumstances. It ought to be clearly understood how much is retained, how much is relinquished. Had our envoy proceeded on a different principle, if what he had agreed to had turned out well, it would have been regarded as, the lucky result of an act of supererogation—If it had proved disadvantageous, it would have been stigmatized as an act of improvidence and imprudence.

The strong argument for having settled an alternative is the avoiding of future dispute. But what alternative could have been agreed upon, which might not have bred controversy? The closing line must go directly or indirectly to the Mississippi—which of the streams reputed or conjectured to be such, above the falls of St. Anthony, is best emitted to be so confidered? To what known point was the line to be directed? How was that point to be identisied with adequate certainty? The diffi­culty of answering these questions, will evince, that the danger of controversy might have been increased by an impatience to avoid it, and by anticipating, without the necessary lights, an adjustment which they ought to direct.

The facts, with regard to the river St. Croix, are these: the question is, which of two rivers is the true St. Croix. The dispute concerning it is as old as the French possession of Nova [Page 266]Scotia. France set up one river; Great Britain another. The point was undecided when the surrender of Nova Scotia by the former to the latter, put an end to the question as between those parties—It was afterwards renewed between the colonies of Nova Scotia and Massachusetts Bay, which last, in the year 1762, appointed commissioners to ascertain, in conjunction with commissioners which might be appointed by the province of Nova Scotia, the true river, but no final settlement of the mat­ter ensued.

The treaty of peace gives us for one boundary, the river St. Croix, but without designating it. Hence it has happened, that not long after the peace was concluded, the question, which had been before agitated between France and Great Britain, and between the provinces of Massachusetts and Nova Scotia, was revived between the state of Massachusetts and that pro­vince, and it has ever since continued a subject of debate.

A mode of settling the dispute was under the consideration of congress in the year 1785; and powers were given to our then minister at the court of London, to adjust the affair, but nothing was concluded. And we learn from a letter of Mr. Jefferson to Mr. Hammond, dated the 15th December, 1791, that it then also, engaged the attention of our government; that the ascertaining of the point in dispute was deemed a mat­ter of "present urgency," and that it had before been the sub­ject of application from the United States to the government of Great Britain.

It is natural to suppose, that a dispute of such antiquity, be­tween such different parties, is not without colourable founda­tion on either side: at any rate, it was essential to the preserva­tion of peace that it should be adjusted.

If one party could not convince the other by argument, of the superior solidity of its pretensions, I know of no alternative but arbitration or war. Will any one pretend that honor required us in such a case to go to war, or that the object was of a na­ture to make it our interest to refer it to that solemn, calami­tous, and precarious issue? No rational man will answer this question in the affirmative. It follows, that an arbitration was the proper course, and that our envoy acted rightly in acceding to this expedient. It is one, too, not without precedents among nations, though it were to be wished, for the credit of human moderation, that they were more frequent.

Is there any good objection to the mode of the arbitration? It seems impossible, that any one more fair or convenient could have been devised, and it is recommended by its analogy to what is common among individuals.

[Page 267] What the mode is, has been already detailed, and need not be repeated here. It is objected, that too much has been left to chance; but no substitute has been offered, which would have been attended with less casualty. The fact is, that none such can be offere [...].—Conscious of this, those who make the objec­tion have not thought fit to give an opportunity of comparison by proposing a substitute. What is left to chance? Not that there shall be a final decision; for this is most effectually pro­vided for. It is not only positively stipulated that commissioners, with full and definitive power, shall be appointed, but an ulti­mate choice is secured, by reserring, in the last resort, to a de­cision by lot, what it might not be practicable to decide by agree­ment. This is the ne plus ultra of precaution. Is it that this reference to lot leaves it too uncertain of what character or disposition the third commissioner may be? If this be not rather a recommendation of the fairness of the plan, how was it to remedied? Could it have been expected of either of the parties, to leave the nomination to the other? Certainly not. Would it have been advisable to have referred the ultimate choice to some other state or government? Where would one have been found, in the opinion of both parties, sufficiently impártial? On which side would there have been the greatest danger of a successful employment of undue influence? Is it not evident, that this expedient would have added to equal uncertainty, as to character and disposition, other casualties and more delay? Should it have been left to the two commissioners, appointed by the parties to agree at all events? It might have been impos­sible for them to come to an agreement, and then the whole plan of settlement would have been frustrated. Would the sword have been a more certain arbiter? Of all uncertain things, the issues of war are the most uncertain. What do ob­jections of this kind prove, but that there are persons resolved to object at all events?

The submission of this question to arbitration has been repre­sented as an eventual dismemberment of empire, which, it has been said, cannot rightly be agreed to, but in a case of extreme necessity. This rule of extreme necessity is manifestly only ap­plicable to a cession or relinquishment of a part of a country, held by a clear and acknowledged title; not to a case of dis­puted boundary.

It would be a horrid and destructive principle, that nations could not terminate a dispute about the title to a particular par­cel of territory, by amicable agreement, or by submission to arbitration as its substitute; but would be under an indispensible obligation to prosecute the dispute by arms, till real danger to [Page 268]the existence of one of the parties should justify, by the plea of extreme necessity, a surrender of its pretensions.

Besides, the terms in which writers lay down the rule, and the reason of it, will instruct us that where it does apply, it relates not to territory as such, but to those who inhabit it, on the principle that the social compact entitles all the members of the society to be protected and maintained by the common strength in their rights and relations as members. It is under­stood, that the territory between the two rivers in dispute, is either uninhabited, or inhabited only by settlers under the Bri­tish. If this be so, it obviates all shadow of difficulty on our side. But be it as it may, it would be an abuse of the rule, to oppose it to the amicable adjustment of an ancient controversy, about the title to a particular tract of country, depending on a question of fact, whether this or that river be the one truly in­tended by former treaties between the parties. The question is not, in this case, shall we cede a part of our country to another power? It is this—To whom does this tract of country truly belong? Should the weight of evidence be on the British side, our faith, pledged by the treaty, would demand from us an acquiescence in their claim. Not being able to agree in opinion on this point, it was most equitable and most agreeable to good faith to submit it to an impartial arbitration.

It has been asked, among other things, whether the United States were competent to the adjustment of the matters with­out the special consent of the state of Massachusetts. Reserving a more particular solution of this question to a separate discus­sion of the constitutionality of the treaty, I shall content myself with remarking here, that our treaty of peace with Great Bri­tain, by settling the boundaries of the United States without the specific consent or authority of any state, assumes the prin­ciple, that the government of the United States was of itself competent to the regulation of boundary with foreign powers— that the actual government of the Union has even more plenary authority with regard to treaties, than was possessed under the confederation, and that acts, both of the former and of the present government, presuppose the competency of the national authority to decide the question in the very instance under con­sideration. I am informed, also, that the state of Massachusetts has, by repeated acts, manifested a corresponding sense on the subject.

A reflection not unimportant occurs here. It was perhaps, in another sense than has been hitherto noticed, a point of pre­dence in both governments to [...]er the matter in dispute to ar­bitration. If one had yielded to the pretensions of the other, it [Page 269]could hardly have failed to draw upon itself complaints, and censures, more or less extensive, from quarters immediately interested or affected.

No. XIV.

THE sixth article stipulates compensation to British cre­ditors for losses and damages which may have been sus­tained by them, in consequence of certain legal impediments, which, since the treaty of peace with Great Britain, are al­leged to have obstructed the recovery of debts bona fide con­tracted with them before the peace.

To a man who has a due sense of the sacred obligation of a just debt, a proper conception of the pernicious influence of laws which infringe the rights of creditors, upon morals, upon the general security of property, upon public as well as private credit, upon the spirit and principles of good government; who has an adequate idea of the sanctity of the national faith, ex­plicitly pledged—of the ignominy attendant upon a violation of it in so delicate a particular as that of private pecuniary contracts—of the evil tendency of a precedent of this kind to the political and commercial interests of the nation generally—every law which has existed in this country, interfering with the recovery of the debts in question, must have afforded mat­ter of serious regret and real afflicton. To such a man, it must be among the most welcome features of the present treaty, that it stipulates reparation for the injuries which laws of that de­scription may have occasioned to individuals, and that, as far as is now practicable, it wipes away from the national reputa­tion the stain which they have cast upon it. He will regard it as a precious tribute to justice, and as a valuable pledge for the more strict future observance of our public engagements; and he would deplore as an ill-omened symptom of the depra­vation of public opinion, the success of the attempts which are making to render the article unacceptable to the people of the United States. But of this there can be no danger. The spontaneous sentiments of equity, of a moral and intelligent people, will not fail to sanction, with their approbation, a measure which could not have been resisted without inflicting a new wound upon the h [...]nor and character of the country.

Let those men who have manifested by their actions, a wil­ling disregard of their own obligations as debtors—those who [Page 270]secretly hoard, or openly and unblushingly riot on the spoils of plundered creditors, let such men enjoy the exclusive and undi­vided satisfaction of arraigning and condemning an act of na­tional justice, in which they may read the severest reproach of their iniquitous principles and guilty acquistions. But let not the people of America tarnish their honor by participating in that condemnation, or by shielding with their favorable opinion, the meretricious apologies which are offered for the measures that produced the necessity of reparation.

The recapitulation of some facts will contribute to a right judgment of this part of the treaty.

It is an established principle of the laws of nations, that, on the return of peace between nations which have been at war, a free and undisturbed course shall be given to the recovery of private debts on both sides. ^* In conformity to this principle, the 4th article of the treaty of peace between the United States and Great Britain, expressly stipulates, "that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts theretofore contracted."

Two instances of the violation of this article have been al­ready noticed, with a view to another point; one relating to certain laws of the state of Virginia, passed prior to the peace, which, for several years after it, appears to have operated to prevent the legal pursuit of their claims by British creditors. Another, relating to a law of the state of South Carolina, which suspended the recovery of the debts for nine months, and after that period permitted the recovery only in four years instalments.

But these were not all the instances; there were other laws of South Carolina prolonging the instalments, and obliging the creditors [...]o receive in payment the property of debtors at appraised values; and there were laws of Rhode Island, New Jersey, North Carolina, and G [...]orgia, making paper money a le [...]al tender for the debts of those creditors; which, it is known, sustained a very great depreciation in every one of those states. These very serious and compulsory interferences with the rights of the creditors, have received from Decius, the soft appella­tion of a modification of the recovery of British debts. Does he expect to make us believe, by this smooth phrase, that the right to recover the full value of a debt in sterling money, is satisfied by the obligation to take as a substitute, one half, one third, or one fourth of the real value in paper?

[Page 271] It must necessarily have happened, that British creditors have sustained, from the operation of the different acts alluded to, losses more or less extensive, which the mere removal of the legal impediments which occasioned them could not repair. In many instances, the losses must have actually accrued and taken their full effect: in others, where no proceedings may have been had, the lapse of so many years must have created inabilities to pay, in debtors who were originally competent, who might have been made to pay, had there been a free course of justice.

The removal of the impediments, therefore, by opening of the courts of justice, was not an adequate satisfaction. It could not supersede the obligation of compensation for losses which had irretrievably accrued by the operation of the legal impe­diments, while they continued in force. The claim for this was still open on the part of Great Britain, and still to be adjusted between the two nations.

The excuse, that these laws were retaliations for prior in­fractions of treaty by Great Britain, was in no view an answer to the claim. ^†

In the first place, as has already been proved, the fact of such prior infractions was too doubtful to be finally insisted up­on, and was, after a fruitless effort to obtain the acquiescence of the other party, properly and necessarily waved; so that it could not serve as a plea against reparation.

In the second place, if that fact had been indubitable, the species of retaliation was unwarantable. It will be shown, when we come to discuss the 10th article, that the d [...]bts of private individuals are in no case a proper object of reprisals; that in­dependent of the treaty, the meddling with them was a violation of the public faith and integrity; and that, consequently, it was due as much to our own public faith and integrity, as to the individual who had suffered, to make reparation. It was an act demanded by the justice, probity, and magnanimity of the nation.

[Page 272] In the third place, it was essential to reciprocity in the ad­justment of the disputes which had existed concerning the trea­ty of peace. When we claimed the reinstatement and execu­tion of the article with regard to the posts; it was just that we should consent to the reinstatement and execution of the article with regard to debts. If the obstruction of the recovery of debts was the equivalent by way of retaliation for the deten­tion of the posts, we could not expect to have restitution of the thing withheld, and to retain the equivalent for it likewise. The dilemma was, to be content with the equivalent, and abandon the thing; or to recover the thing, and abandon the equivalent: to have both was more than we could rightly pre­tend. The reinstatement of the article, with regard to the debts, necessarily included two things, the removal of legal impediments as to the future recovery; compensation for past losses by reason of those impediments. The first had been ef­fected by the new constitution of the United States; the last is promised by the treaty.

Did our envoy reply, that the reinstatement of the article with regard to the posts included likewise compensation for their detention? Was it an answer to this, destitute of reason, that our loss, by the detention of the posts, which resolved itself es­sentially into the uncertain profits of a trade that might have been carried on, admitted of no satisfactory rule of computa­tion; while the principal and interest of private debts afforded a familiar standard for the computation of losses upon them: that, nevertheless, while this was the usual, and must be the admitted standard, it is an adequate one in cases where pay­ment is protracted beyond the allowed term of credit; since the mere interest of money does not countervail among mer­chants, the profits of its employment in trade, and still less the derangements of credit and fortune, which frequently re­sult to creditors, from procrastinations of payment; and that the final damage to Great Britain, in these two particulars, for which no provision could be made, might well exceed any losses to us by the detention of the posts?

In the last place, the compensation stipulated was a fine qua non with Great Britain, of the surrender of the posts, and the adjustment of the controversy which had subsisted between the two countries. The making it such may be conceived to have been dictated more by the importance of the precedent, than by the quantum of the sum in question. We shall easily under­stand this, if we consider how much the commercial capital of Great Britain is spread over the world. The vast credits she is in the habit of extending to foreign countries, renders it to [Page 273]her an essential point to protect those credits by all the sanc­tions in her power.—She cannot forbear to contend at every hazard against precedents of the invasion of the rights of her merchants, and for retribution where any happen. Hence it is always to be expected, that she will be peculiarly inflexible on this point: and that nothing short of extreme necessity can bring her to relax in an article of policy, which perhaps not less than any other, is a necessary prop of the whole system of her political economy.

It was, therefore, to have been foreseen that whenever our controversy with Great Britain was adjusted, compensation for obstructions to the recovery of debts would make a part of the adjustment. The option lay between compensation, relinquish­ment of the posts, or war. Our envoy is entitled to the ap­plause of all good men, for preferring the first. The extent of the compensation can on no possible scale compare with the im­mense permanent value of the posts, or with the expenses of war. The sphere of the interferences has been too partial to make the sum of the compensation, in any event, a very seri­ous object; and as to a war, a conscientious or virtuous mind could never endure the thoughts of seeing the country involved in its calamities, to get rid of an act of justice to individuals, whose rights, in contempt of public faith, had been violated.

Having reviewed the general considerations which justify the stipulation of compensation, it will be proper to examine if the plan upon which it is to be made, is unexceptionable.

This plan contains the following features,

• 1. The cases pro­vided for are those, "where losses and damages occasioned by the operation of lawful impediments (which since the peace have delayed the full recovery of British debts, bona fide con­tracted before the peace, and still owing to the creditors, and have impaired and lessened the value and security thereof) cannot now, for whatever reason, be actually obtained in the ordinary course of justice.
• 2. There is an express exception out of this pro­vision, of all the cases in which losses and damages have been occasioned by such insolvency of the debtors, or other causes, as would equally have operated to produce them, if no legal impedi­ment had existed, or by the manifest delay, or negligence, or wilful omission, of the c [...]aim [...]nts.
• 3. The amount of the losses and da­mages, for which compensation is to be made, is to be ascer­tained by five commissioners to be appointed as follows; two by his Britannic majesty, two by the president with the advice and consent of the senate, the fifth by the unanimous voice of these four, if they can agree, if they cannot agree, then to be taken by lot out of two persons, one of whom to be named [Page 274]by the two British commissioners, the other by the two Ameri­can commissioners.
• 4. These rive commissioners, thus appoint­ed, a [...]e, before they proceed to the execution of their trust, to take an oath for its faithful discharge. Three of them to con­stitute a board; but there must be present one of the two com­missioners named on each side, and the fifth commissioner.— Decisions to be made by majority of voices of those present. They are first to meet at Philadelphia, but may adjourn from place to place as they see cause.
• 5. Eighteen months after the commissioners make a board, are assigned for receiving appli­cations; but the commissioners, in particular cases, may ex­tend the term for any further term, not exceeding six months.
• 6. The commissioners are empowered to take into considera­tion all claims, whether of principal or interest, or balances of principal and interest, and to determine them according to the merits and circumstances thereof, and as justice and equity shall appear to them to require—to examine persons on oath or affirmation, and to receive in evidence, depositions, books, papers, or copies, or extracts thereof, either according to the legal forms existing in the two countries, or according to a mode to be devised by them.
• 7. Their award is to be conclusive; and the United States are to cause the such awarded in each case to be paid in specie to the creditor without deduction, and at such time and place as shall have been awarded; but no payment to be required sooner than twelve months from the day of the exchange of the ratifications of the treaty.

This provision for ascertaining the compensation to be made, while it is ample, is also well guarded.

It is confined to debts contracted before the peace, and still owing to the creditors. It embrances only the cases of loss or damage in consequence of legal impediments to the reco­very of those debts which will exclude all cases of voluntary compromise, and can include none, where the laws have al­lotted a free course to justice. It can operate in no instance where, at present, the ordinary course of justice is competent to full relief, and the debter is solvent; nor in any, where in­solvency or other cause would have operated to produce the loss or damage, if no legal impediment had existed, or where it has been occasioned by the wilful delay, negligence, or omission of the creditor.

If it be said, that the commissioners have nevertheless much latitude of discretion, and that in the exercise of it they may transgress the limits intend [...]d, the answer is, that the United States, though bound to perform what they have stipulated with good faith, would [...] bound to submit to a manifest [Page 275]abuse of authority by the commissioners. Should they palpa­bly exceed their commission, or abuse their trust, the United States may justifiably, though at their peril, refuse compliance. For example, if they should undertake to award upon a debt contracted since the peace, there could be no doubt that their award would be a nullity. So likewise there may be other plain cases of misconduct, which, in honor and conscience, would exonerate the United States from performance. It is only in­cumbent upon them to act, bona fide, and as they act at their peril, to examine well the soundness of the ground on which they proceed.

With regard to the reference to commissioners to settle the quantum of the compensation to be made, this course was dic­tated by the nature of the case. The tribunals of neither coun­try were competent to a retrospective adjustment of losses and damages, in many cases which might require it. It is for this very reason of the incompetency of the ordinary tribunals to do complete justice, that a special stipulation of compensation, and a special mode of obtaining it, became necessary. In con­stituting a tribunal to liquidate the quantum of reparation, in the case of a breach of treaty, it was natural and just to de­vise one likely to be more certainly impartial than the esta­blished courts of either party. Without impeaching the inte­grity of those courts, it was morally impossible that they should not feel a bias towards the nation to which they belonged, and for that very reason they were unfit arbitrators. In the case of the spoliations of our property, we should undoubtedly have been unwilling to leave the adjustment in the last resort to the British courts; and by parity of reason, they could not be ex­pected to refer the liquidation of compensation in the case of the debts to our courts. To have pressed this would have been to weaken our argument for a different course in regard to the spoliations. We should have been puzzled to find a substan­tial principle of discrimination.

If a special and extraordinary tribunal was to be constituted, it was impracticable to contrive a more fair and equitable plan for it than that which has been adopted. The remarks on the mode of determining the question respecting the river St. Croix, apply in full force here, and would render a particu­lar comment superfluous.

To the objection of the Charleston committee, that the ar­ticle erects a tribunal unknown to our constitution, and trans­fers to commissioners the cognizance of matters appertaining to American courts and juries, the answer is simple and con­clusive. The tribunals established by the constitution do not [Page 276]contemplate a case between nation and nation arising upon a breach of treaty, and are inadequate to the cognizance of it.— Could either of them hold plea of a suit of Great Britain plaintiff, against the United States, defendant? The case, therefore, required the erection or constitution of a new tri­bunal; and it was most likely to promote equity to pass by the courts of both the parties.

The same principle contradicts the position, that there has been any transfer of jurisdiction from American courts and juries to commissioners. It is a question not between individual and individual, or between our government and individuals, but between our government and the British government; of course, one in which our courts and juries have no jurisdiction. There was a necessity for an extraordinary tribunal to supply the defect of ordinary jurisdiction; and so far is the article from making the transfer imputed to it, that it expressly ex­cepts the cases in which effectual relief can be obtained in the ordinary course of justice.

Nations acknowledging no common judge on earth, when they are willing to submit the question between them to a ju­dicial decision, must of necessity constitute a special tribunal for the purpose. The mode by commissioners, as being the most unexceptionable, has been repeatedly adopted.

I proceed to reply to some other objections which have been made against the provision contained in this article.

It is charged with affixing a stigma on the national character, by providing reparation for an infraction, which, if it ever did exist, has been done away, there being now a free course to the recovery of British debts in the courts of the United States.

An answer to this objection has been anticipated by some observations heretofore made. The giving a free course to jus­tice in favor of British creditors, which has been effected by the new constitution of the United States, though it obviates the future operation of legal impediment, does not retrospec­tively repair the losses and damages which may have resulted from their past operation. In this respect, the effects continued, and reparation was due. To promise it, could fix no stigma on our national character. That was done by the acts which cre­ated the cause for reparation. To make it, was as far as possi­ble to remove the stigma.

It has been said, that the promise of compensation produces injustice to those states which interposed no legal impediments to the recovery of debts, by saddling them with a part of the burden arising from the de [...]quencies of the transgressing states. [Page 277]But the burden was before assumed by the treaty of peace. The article of that treaty, which engaged that there should be no lawful impediments to the recovery of debts, was a guarantee by the United States of justice to the British creditors. It charged them with the duty of taking care that there was no legal obstacle to the recovery of the debts of those creditors, and consequently with a responsibility for any such obstacle which should happen, and with the obligation of making repa­ration for it. We must, therefore, refer to the treaty of peace, not to the last treaty, the common charge which has been in­curred by interference in the recovery of British debts. The latter only carries into execution the promise made by the for­mer. It may be added that it is a condition of the social compact that the nation at large shall make retribution to foreign nations for injuries done to them by its members.

It has been observed, that Mr. Jefferson has clearly shown, that interest in cases like that of British debts, is liable, during the period of the war, to equitable abatements and deductions; and that, therefore, the discretion given to the commissioners on this head ought not to have been as large as it appears in the article.

Mr. Jefferson has, no doubt, offered arguments of real weight to establish the position that judges and juries have, and exercise, a degree of discretion in any article of interest; and that the circumstances of our war with Great Britain, afford strong reasons for abatements of interest. But it was foreign to his purpose, and accordingly he has not attempted to particu­larise the rules which ought to govern in the application of this principle to the variety of cases in which the question may arise: and he has himself noted that the practice in different states and in different courts, has been attended with great di­versity. Indeed, admitting the right to abate interest under spe­cial circumstances, in cases in which it is the general rule to allow it, the circumstances of each case, are, perhaps, the only true criterion of the propriety of an exception. The particular nature of the contract, the circumstances under which it was entered into, the relative situation of parties, the possibility or not of mutual access; these and other things would guide and vary the exercise of the discretion to abate. It was, there­fore, right to leave the commissioners, as they are left, in the same situation with judges and juries:—to act according to the true equity of the several cases or of the several classes of cases.

Let it be remembered, that the government of Great Britain has to consult the interests and opinions of its citizens, as well as the government of the United States those of their citizens [Page 278]The only satisfactory course which the former could pursue, in reference to its merchants, was to turn over the whole question of interest as well as principal, to the commissioners. And as this was truly equitable, the government of the United States could make no well-founded opposition to it.

No. XV.

IT is the business of the seventh article of the treaty, to provide for two objects: one, compensation to our citizens for injuries to their property, by irregular, or illegal captures, or condemnations; the other, compensation to British citizens for captures of their property within the limits and jurisdiction of the United States, or elsewhere, by vessels originally armed in our ports, in the cases in which the captured property having come within our posts and power, there was a neglect to make resti­tution.

The first object is thus provided for;

• 1. It is agreed, that in all cases of irregular and illegal captures or condemnations of the vessels and other property of citizens of the United States, under colour of authority or commissions from his [...] majesty, in which adequate compensation for the losses and damages sustained, cannot, for whatever reason, be actually obtained in the ordinary course of justice, full and compl [...] compensation for the same will be made by the British govern­ment to the claimants; except were the loss or damage may have been occasioned by the manifest delay or negligence, or wilful omission of those claimants.
• 2. The amount of the losses and damages to be compensated, is to be ascertained by five commissioners, who are to be appointed in exactly the same manner as those for liquidating the compensation to British cre­ditors.
• 3. These commissioners are to take a similar oath, and to exercise similar powers for the investigation of claims with those other commissioners: and they are to decide according to the merits of the several cases, and to justice, equity, and the laws of nations.
• 4. The same term of eighteen months is al­lowed for the reception of claims, with a like discretion to ex­tend the term, as in the case of British debts.
• 5. The award of these commissioners, or of three of them, under the like guards as in that case, is to be final and conclusive, both as to the justice of the claims, and to the amount of the com­pensation.
• And, lastly, his Britannic majesty is to cause the compensation awarded, to be paid to the claimants in specie, without deduction, at such times and places, and upon the condition of such releases or assignments, as the commissioners shall prescribe.

[Page 279] Mutually and dispassionately examined, it is impossible not to be convinced, that this provision is ample, and ought to be satisfactory. The course of the discussion will exhibit various proofs of the disingenuousness of the clamours against it; but it will be pertinent to introduce here, one or two samples of it.

It has been alleged, that while the article preceding, and this article, provide effectually for every demand of Great Britain against the United States, the provision for this import­ant and urgent claim of ours is neither explicit nor efficient, nor co-extensive with the object, nor bears any proportion to the summary method, adopted for the satisfying of British claims.

This suggestion is every way unfortunate. The plan for satis­fying our claim, except as to the description of the subject which varies with it, is an exact copy of that for making com­pensation to British creditors. Whoever will take the pains to compare, will find, that in the leading points, literal conformi­ty is studied; and that in others, the provisions are assimilated by direct references; and will discover also, this important dis­tinction in favor of the efficiency and summariness of the pro­vision for our claim—that while the commissioners are express­ly restricted from awarding payment to British creditors, to be made sooner than one year after the exchange of ratifications of the treaty, they are free to award it to be made the very day of their decision, for the spoliations of our property. As to compensation for British property, captured within our limits, or by vessels originally armed in our ports and not restored, which is the only other British claim that has been provided for, it happens that this, forming a part of the very article we are considering, is submitted to the identical mode of relief, which is instituted for making satisfaction to us.

So far, then, is it from being true, that a comparison of the modes of redress provided by the treaty, for the complaints of the respective parties, turns to our disadvantage, that the real state of the case exhibits a substantial similitude, with only one material difference, and that in our favor; and, that a strong argument for the equity of the provisions on each side, is to be drawn from their close resemblance of each other.

The other suggestion alluded to, and which has been shame­lessly reiterated, is, that Denmark and Sweden, by pursuing a more spirited conduct, had obtained better terms than the United States. It is even pretended, that one or both of them had actually received from Great Britain a gross sum on ac­count— in anticipation of an ultimate liquidation.—In my se­cond number, the erroneousness of the supposition, that those [Page 280]powers had obtained more than the United States, was inti­mated; but the subsequent repetition of the idea, more co­vertly in print, and very openly and confidently in conversa­tion, renders expedient an explicit and peremptory denial of the fact. There never has appeared a particle of evidence to support it; and after challenging the asserters of it to produce their proof, I aver, that careful enquiry, at sources of infor­mation, at least as direct and authentic as theirs, has satisfied me, that the suggestion is wholly unfounded, and that at the time of the conclusion of our treaty with Great Britain, both Denmark and Sweden were behind us in the effect of their measures for obtaining reparation.

What are we to think of attempts like these, to dupe and irritate the public mind? Will any prudent citizen still consent to follow such blind or such treacherous guides?

Let us now, under the influence of a calm and candid tem­per, without which truth eludes our researches, by a close scrutiny of the provision, satisfy ourselves, whether it be not really a reasonable and proper one. But previous to this it is requisite to advert to a collateral measure, which was also a fruit of the mission to Great Britain, and which ought to be taken in conjunction with the stipulations of this article. I refer to the order of the British king in council, of the 6th of August, 1794, by which order, the door before shut by lapse of time, is opened to appeals from the British West India courts of admiralty, to be brought at any time which shall be judged reasonable by the lords commissioners of appeals in prize causes. This, of itself, was no inconsiderable step towards the redress of our grievances; and it may be hoped, that with the aid which the government of the United States has given to faci­litate appeals, much relief may ensue from this measure. It will not be wonderful, if it should comport with the pride and policy of the British government, by promoting justice in their courts, to leave as little as possible to be done by the commissioners.

I proceed now to examine the characteristics of the supple­mentary provision made by the article, in connection with the objections to it.

It admits fully and explicitly the principle, that compensa­tion is to be made for the losses and damages sustained by our citizens, by irregular or illegal captures, or condemnations of their vessels and other property, under colour of authority (which includes governmental orders and instructions) or of commissions of his Britannic majesty. It is to be observed, that the causes of the losses and damages are mentioned in the disjunctive, "captors or condemnations;" so that damages by [Page 281]captures, which were not followed by condemnations, are provided for as well as those where condemnations did follow.

A cavil has been raised on the meaning of the word, colour, which it is pretended, would not reach the cases designed to be embraced; because the spoliations complained of, were made, not merely by colour, but actually by virtue of instructions from the British government.

For the very reason that this subtil and artificial meaning ascribed to the term, would tend to defeat the manifest ge­neral intent of the main provision of the article, which is plainly to give reparation for irregular or illegal captures or condemnations of American property, contrary to the laws of nations—that meaning must be deemed inadmissible.

But in fact, the expression is the most accurate that could have been used, to signify the real intent of the article. When we say, a thing was done by colour of an authority or com­mission, we mean one of three things; that it was done on the pretence of a sufficient authority or commission not validly im­parted, or on the pretence of such an authority or commission validly imparted but abused or misapplied, or on the pretence of an insufficient authority or commission, regularly, as to form, imparted and exercised. It denotes a defect of rightful and just authority, whether emanating from a wrong source, or impro­perly from a right source; whereas the phrase "by virtue of," is most properly applicable to the valid exercise of a valid authority. But the two phrases are not unfrequently used as synonimous. Thus, in a proclamation of the British king, of the 25th of May, 1792, he, among other things, forbids all his subjects, by virtue or under colour of any foreign commission or letters of reprisals, to disturb, infest, or damage, the subjects of France.

In whose mouths does the article put the expression? In those of citizens of the United States? What must they be presumed to have meant? Clearly this; that by colour of in­structions or commissions of his Britannic majesty, either ex­ercised erroneously, or issued erroneously, as being contrary to the laws of nations; the citizens of the United States had suf­fered loss and damage by irregular or illegal captures or con­demnations of their property. W [...]t is the standard appealed to, to decide the irregularity or illegality to be redressed? Ex­pressly the laws of nations. The commissioners are to decide "according to the merits of the several cases, to justice, equi­ty, and the laws of nations." Wherever these laws, as received and practised among nations, pronounce a capture or condemna­tion of neutral property to have been irregular or illegal, though by colour of an authority or commission of his Britannic ma­jesty, [Page 282]it would be the duty of the commissioners to award com­pensation.

The criticism, however, fails on its own principle, when tested by the fact. The great source of grievance, intended to be redressed by the article, proceeded from the instruction of the 6th of November, 1793. That instruction directs the com­manders of ships of war and privateers, to stop and detain all ships laden with goods, the produce of any colony belonging to France, or carrying provisions and other supplies for the use of such colony, and to bring the same, with their cargoes, to legal adjudication in the British courts of admiralty. These terms, "legal adjudication," were certainly not equivalent, upon any rational construction to condemnation. Adjudication means sim­ply, a judicial decision, which might be either to acquit or con­demn. Yet the British West India courts of admiralty appear to have generally acted upon the term as synonimous with con­demnation. In doing this, they may be truly said, even in the sense of the objection, to have acted by colour, only, of the in­struction.

The British cabinet have disavowed this construction of the West India courts; and have as we have seen, by a special act of interference, opened a door which was before shut to a re­versal of their sentences, by appeal to the courts in England. We find, also, that the term adjudication is used in the XVIIth article of our late treaty as synonimous, only with judicial decision, according to its true import. This, if any thing were wanting, would render it impossible for the commissioners to refuse redress on the ground of the condemnations, if other­wise illegal, being warranted by the pretended sense of the words legal adjudication. But in reality, as before observed, their commission will be to award compensation in all cases, in which they are of opinion, that, according to the established laws of nations, captures or condemnations were irregular or illegal, however otherwise authorized; and this in contempt of the quibbling criticism which has been so cunningly devised.

2d, The provision under consideration, obliges the British government, in all cases of illegal captures or condemnations, in which adequato compensation cannot, for whatever reason, be actually had in the ordinary course of justice, to make full and complete compensation to the claimants, which is to be paid in specie to themselves, without deduction, at such times and places as shall be awarded.

They are not sent for redress to the captors, or obliged to take any circuitous course for their payment, but are to receive it immediately from the treasury of Great Britain.

[Page 283] 3d, The amount of the compensation in each case is to be sixed by five commissioners, two appointed by the United States, two by Great Britain: the fifth by these four, or in case of disagreement, by lot. these commissioners to meet and act in London.

It seems impossible, as has been observed and shown in the analogous cases, to imagine a plan for organizing a tribunal more completely equitable and impartial than this; while it is the exact counterpart of the one which is to decide on the claims of British creditors. Could it have been believed, that so palpable an error could have been imposed on a town meet­ing, in the face of so plain a provision, as to induce it to charge against this article, that in a national concern of the United States, redress was left to British courts of admiralty? Yet, strange as it may appear, this did happen even in the truly en­lightened town of Boston. The just pride of that town will not quickly forget, that it has been so compromitted.

The truth is, that, according to the common usage of na­tions, the courts of admiralty of the belligerent parties are the channels through which the redress of injuries to neutrals is sought. But Great Britain has been brought to agree to refer all the cases, in which justice cannot be obtained through those channels, to an extraordinary tribunal; in other words, to arbitrators mutually appointed.

It is here that we find the reparation of the national wrong which we had suffered.—In admitting the principle of com­pensation by the government itself, in agreeing to an extraor­dinary tribunal, in the constitution of which the parties have an equal voice, to liquidate that compensation, Great Britain has virtually and effectually acknowledged the injury which had been done to our neutral rights, and has consented to make satisfaction for it. This was an apology in fact, however it may be in form.

As it regards our honor, this is an adequate, and the only species usual in similar cases between nations; pecuniary com­pensation is the true reparation in such cases—governments are not apt to go upon their knees to ask pardon of other govern­ments—Great Britain, in the recent instance of the dispute with Spain about Nootka Sound, was glad to accept of a like reparation. It merits remark, incidentally, that the instrument, which settles this dispute, expressly waves, like our treaty, re­ference to the merits of the complaints and pretensions of the respective parties. Is our situation such as to authorise us to pre­tend to impose humiliating conditions on other nations!

It is necessary to distinguish between injuries and insults, which we are too apt to confound. The seizures and spolia­tions [Page 284]of our property fall most truly under the former head. The acts which produced them, embraced all the neutral pow­ers, were not particularly levelled at us, bore no mark of an intention to humble us by any peculiar indignity or outrage.

These acts were of June 8th, and of November 6th, 1793. The seizure of our vessels going with provisions to the demi­nions of France, under the first, was put on the double ground of a war extraordinary in its principle, ^* and of a construction of the laws of nations, which, it was said, permitted that seizure; a construction not destitute of colour, and apparently supported by the authority of Vattel, though, in my opinion, ill founded. It was accompanied also by compensation for what was taken, and other circumstances, that evinced a desire to smooth the act. The indiscriminate consiscation of our pro­perty, upon the order of the 6th of November, which was the truly flagrant injury, was certainly unwarranted by that order (and no secret one has appeared)—and the matter has been so explained by the British government. It is clear that evils suffered under acts so circumstanced, are injuries rather than insults—and are so much the more manageable as to the spe­cies and measure of redress. It would be Quixotism to assert that we might not honorably accept in such a case, the peca­niary reparation which has been stipulated.

But it is alleged, in point of interest, it is unsatisfactory— tedious in the process—uncertain in the event; that there ought to have been actual and immediate indemnifications, or at least, a payment upon account.

A little calm reflection, will convince us, that neither of the two last things was to be expected. There was absolutely no criterion, either for a full indemnification, or for an advance upon account. The value of the property seized and con­demned (lay out of the case, damages upon captures where condemnation had not ensued) was not ascertained, even to our own government, with any tolerable accuracy. Every well informed man will think it probable, that of this, a proportion was covered French property.—There were, theresore, no ade­quate data, upon which our government could demand, or the British government pay, a determined sum.—Both governments must have acted essentiall by guess. Ours could not in honor or conscience have made even an estimate but upon evidence. It might have happened, that a sum which appeared upon the evidence that had been collected, sufficient, might have proved on further evidence insufficient. Too little, as well as too much, [Page 285]might have been demanded and paid. But it will perhaps be said, that some gross estimate might have been formed; and that of this, such a part might have been advanced upon ac­count, as was within the narrowest probable limit, liable to eventual adjustment. Let us for a moment suppose this done— what good end would it have answered? How could the Unit­ed States have distributed this money among the sufferers, till it was ascertained which of them was truly entitled, and to how much? Is it not evident, that if they had made any distri­bution, before the final and perfect investigation of the right of each claimant, it would be at the risk of making mispay­ments, and of being obliged to replace the sums mispaid, per­haps at a loss to the United States, for the benefit of those who should be found to be better entitled? Would it have been expedient for our government to have incurred this risk to its constituents? And if the money was to be held undistri­buted till an investigation of claims was completed, to what purpose the haste about an advance?

On the other hand—Is it in this loose, gross way, that na­tions transact affairs, with each other? Do even individuals make indemnifications to one another, in so lumping a man­ner? Could it be expected of Great Britain, that she would pay, till it was fairly ascertained what was to be paid; especi­ally when she had too much cause to suspect, that a material proportion of the property claimed, might turn out to be French? Would it have been justifiable on our part, to make her compliance with such a demand, the sine quo non of ac­commodation and peace? Whoever will believe that she would have complied with so humiliating a requisition, must be per­suaded that we were in a condition to dictate, and she in a condition to be obliged to receive any terms that we might think fit to prescribe? The person who can believe this, must be, in my opinion, under the influence of a defirium, for which there is no cure in the resources of reason and argu­ment.

If it must be admitted, that it was matter of necessity, that investigation should precede payment; then I see not what more summary mode could have been devised. Who more capable of proceeding with dispatch, that arbitrators untram­melled with legal forms; vested with powers to examine par­ties and others, on oath, and to command and receive all evi­dence in their own way? Here are all the means of expedi­tion divested of every clog.

Eighteen months are allowed for preferring claims, but the commissioners are at liberty to adjust them as fast as they are preferred.—In every case in which it appears to them bona fide, [Page 286]that the ordinary course of justice is inadequate to relief, they may forthwith proceed to examine and decide. There is no impediment, no cause of delay whatever, more than the na­ture of a due investigation always requires.

The meeting of the commissioners at London, was recom­mended by the circumstance that the admiralty courts were likely to concentre there a considerable part of the evidence, on which they were to proceed; which upon the whole, might favor dispatch, as well as more complete justice. In many cases, the decisions of those courts may come under their review.

As to the uncertainty of the event, this, as far as it may be true, was inseparable from any plan, bottomed on the idea of a previous investigation of claims: and it has been shown, that some such plan was reasonable and inetitable.

It may also be added, that the plan affords a moral certain­ty of substantial justice, which is all that can rationally be expected in similar affairs; compensation, where due, is ex­plicitly stipulated. A fair and edequate mode of deciding and liquidating it has been settled. All the arguments which were adduced to prove the probability of good saith, in regard to the posts, apply equally to this subject. The interest which every nation has in the preservation of character, and which the most profligate dare not entirely disregard—the consideration of de­feating the fulfilment of the stipulations on our part—the size of the object, certainly not of great magnitude—the very dis­couraging situation for replunging suddenly into a new war, in which the present war will in every event leave Great Britain. These are reasons which afford solid ground of assurances that there will be no evasion of performance.

As to the commissioners, two of the five will be of our choice, a third may be so likewise; but should it prove other­wise, it will be surprising if one of the other three, all acting under oath, and having character at stake, shall not be disposed to do us reasonable justice.

3d, While their power is co-extensive with all losses and da­mage; from irregular or allegal captures or condemnations, their sentence in each case is to be conclusive, and the rules which are to govern it as prescribed by the article, are the merits of each case, justice, equity and the law of nations. What greater latitude could have been desired to be given? What greater latitude could have been given? What else in the case was there to have been provided for? What is meant by the assertion, that the provision is not commensurate with the object?

The general and unqualified reference to the laws of nations, dismisses all pretence to substitute the arditrary regulations of [Page 287]Great Britain as rules of decision. Her instructions or orders, if incompatible with those laws, are nullities.

Thus the treaty unfetters the question between us and her, from the commencement of the war, and with her own con­sent, commits them at large to a tribunal to be constituted by mutual choice.

Will any man of candour and equity say, that a better pro­vision ought to have been expected than has been accomplished?

The alternative was immediate indemnification, by actual payment in whole or in part, without examination of the ex­tent or justice of claims; or suture indemnification, after a due investigation of both in some equitable and effectual mode. The first was attended with dissiculties on our side, and with solid objections on the other side. The last was therefore the truly reasonable course, and it has been pursued on a very pro­per plan.—The causes of loss and damage are fully embraced. They are referred to the decision of an unexceptionable tribu­nal, to be guided by unexceptionable rules, and the indemnifi­cation which may be awarded, is to be paid fully, immediately, and without de tour by the British government itself. Say ye im­partial and enlightened, if all this be not as it ought to have been!

No. XIV.

THE numerous faults of the 6th article compel me re­luctantly to make it the subject of another number; and the rather, as we shall thereby anticipate similar objections, which we should otherwise be obliged to notice in several. The appointment of commissioners without the concurrence of con­gress —the ascertaining their salaries by treaty—their assumption of a jurisdiction over matters arising under treaties and cases in which the United States are parties, in derogation of the rights of the supreme court, having been shown to violate the consti­tution—it will, I believe, be readily admitted, that no power exists in the president and senate, to appropriate money to the payment of British debts, unless with the concurrence of con­gress; and that the treaty, therefore, is unconstitutional, inas­much as it pledges them absolutely to do an, act which they may or may not do at their discretion. Whether in the exercise of this discretion, they could constitutionally, agree to this article? or whether if they could, it would be just or politic? are questions that remain to be examined. The right of the president and senate, to appoint commissioners with judiciary powers, has already been discussed. The right of congress to establish officers by law, is also limited. 1st, To the president and senate. 2d, To the courts of law. 3d, To the heads of departments. 4th, To the president alone. No power a vested in them to allow the appointment of any officer by lot, and much less to admit that his Britannic majesty should exercise the right of appointing judges for the trial of causes in which they are themselves to be the parties. 2. No power exists in congress, to take from the supreme court the right to determine all cases arising under treaties—all cases in which the United States are parties. The determination of these cases is not less exclusively the right of the judiciary, than the making of laws exclusively of congress. 3. In examining these powers, I find none that enables them to change the rules of evidence—to alter the established laws of the country, or to authorize courts so to do. These rights, therefore, not being given to congress, I presume are exclu­sively invested in the state legislatures; and, of course, I am [Page 4]led to doubt the right that congress themselves have, to empower any five men, to examine the plaintiff on oath, and to receive in evidence, written depositions, papers, copies, or extracts, authenticated in any such way "as the said commissioners shall see cause to require or allow." A right so extensive, so liable to abuse, particularly when accompanied with the power to decide finally and arbitrarily, should, I think, be tolerated in no free stare.

The justice or policy of the assumption of the debts of indi­viduals, by the United States, must be determined by a refer­ence to the treaty of Paris, and the subsequent measures of the United States. By the 5th article of that treaty, it was agreed, "That creditors on either fide shall meet with no lawful impe­diment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted." It is observable, that this article gives the creditors on neither side any claim upon the states, but leaves them to prosecute the individual, and the ordinary courts of law to determine their rights. In consequence of which, some debtors have discharged all that was due; others have been more negligent.

Upon what principle can the British creditor charge the com­munity, with debts due from delinquent individuals? It is said, that laws were passed to restrain the payment of debts for a cer­tain period—yet whoever will turn to Mr. Jefferson's letter to Mr. Hammond on this subject, will find, that these laws in no one instance have operated to the prejudice of the British credi­tor; that the right of congress to make treaties, under the old confederation, being unlimited, the state courts always construed the treaty as a law which over-ruled state laws—so that the Bri­tish creditor has had the full effect of the treaty. Mr. Jefferson's reasoning was so conclusive on this head, that Mr. Hammond, notwithstanding his rage for writing and the able aid he had at Philadelphia, did not pretend to answer his arguments; but, after some delay, evaded them by saying that he had sent his letters to England. Lord Grenville also (as appears by Mr. Pinckney's letters) was so struck with the force of his reasoning, that instead of answering it, he commends it in the highest terms; nor did it ever meet with a reply, until Camillus took up the gauntlet as the British champion.—It is true, indeed, that his arguments on this subject, partake so much of the quibbles of the bar, are so inconsistent with the stile of reason­ing adopted by statesmen, that, probably, Lord Grenville dis­dained to use them—With all his ingenuity, he has not, how­ever, adduced [...] a British creditor's being obstructed by our courts in the recovery of his debts. But, admitting that [Page 5]there had been temporary obstructions arising, either from the situation of the country or the breach of treaty on the part of Britain, all that she could possibly ask, was, that these obstruc­tions should be removed. Now it is admitted that this has been done for more than six years past; so that the British creditor, from that period, at least, has had the full effect of the treaty. Upon what pretence, then, must the United States step in be­tween him and his debtor? Why must the farmer and mecha­nic be charged with the debt of the merchant, and states that owe nothing, that never have made laws of the nature com­plained of, pay the debts of those that owe much?

But supposing (contrary to the most obvious principles of rea­son and justice that the United States should be liable to the British creditors; surely it would have been sufficient to place them in the situation of the debtor, and submit themselves to the rules of law which prevailed in the state where the debt was contracted; these are known to be various in the different states—in some, for instance, land and slaves are not liable to be sold in fee, for debts, nor were so when the debt was con­tracted; in such states the debtor being dead, &c. it will be very difficult to get at the property in the hands of the heir. In others, such assignments and conveyances may have been made, as to put the recovery out of the creditor's power—In others, laws, limiting the time for the recovery of debts to a short pe­riod may have barred the demand. All these are risks the credi­tor knew-he was to run, when he made his contracts.—The United States, who were no party to this contract, can cer­tainly not be bound to secure the British creditor against them, while it leaves them to operate against their own citizens. But, what is still worse, even the rules of law, both in the decision and in the admission of evidence, are to be relaxed in favor of British creditors. What circumstance, either in the treaty or in reason, can convert all these common law causes into proper subjects for courts of equity? What shall carry them even be­yond the rules established in courts of equity, which, like courts of law, are bound by certain known principles—while these commissioners are to determine, agreeably to their own (perhaps wild and undeterminate) ideas of equity and justice? [...] of equity, for instance, would not permit the compla [...] [...] [...]ch to influence the question; yet these commissioners are [...] [...]w­ered to examine " all persons that shall come before them on oath," nor will any courts admit of extracts as evidence; yet so solicitous has Mr. Jay been to swell the amount of British debts, and to increase the public debt, that every thing, copies, papers, depositions, books, extracts, are to be admitted in evidence.—It [Page 6]is very extraordinary, that when we complain of an immense loss of property, by the depredations committed upon our trade, by order of the British goverment, and which, of course, they are bound to compensate—that Mr. Jay's treaty sends us first to their courts of admiralty to determine the questions of right, which courts must necessarily determine agreeably to the spirit of the very instructions we complain of, nor in any case apply to his commissioners till such admiralty co [...]rts have decid­ed upon it. The Americans must go through all the delays, and sustain all the expense of suits in British courts, to obtain re­dress for loffes which the British government has occasioned, while the British creditor is to charge the United States with debts which they do not owe, without the expense of a suit in any court, and under the advantages of having all the forms of law relaxed in his favor.—This is certainly a new species of re­ciprocity, which nothing but the inventive genius of Mr. Jay, sharpened by the warmest attachment to Britain, could have discovered. It is a little extraordinary, too, that when this ar­ticle was under consideration, Mr. Jay should not have reflect­ed, that the 4th article of the treaty of Paris was mutual, that it related to debts of either side; yet Mr. Jay has made no sti­pulation for the payment of debts due to us from British cre­ditors.

It is true, that they have passed no laws to obstruct the re­covery of them. But it is also true, that without such laws their courts of equity have undertaken to prevent their being recovered. And I need only appeal to the treasurer of this state (New York) to show the amount that has been paid in dis­charge of debts due from persons whose estates have been for­feited, and which such persons were liable to pay to their cre­ditors: and that, too, in many cases in which suits had actu­ally been brought in England, and the causes stopped by their courts. If my memory, serves me, affidavits to this purpose, from respectable merchants of New York, will be found on the files of our house of assembly. It cannot be denied, that where the state has discharged such debts, they are creditors to the amount, and that under the express words of the treaty of Paris, they have a right to recover. Yet Mr. Jay has care­fully excluded them from the benefit of this article; since he well knew, that the amount of debts due from British subjects to the states and to individuals, exceeded the demands of Bri­tish creditors. Is any so blind as not to see in this article a con­tinuation of that system which forms the strength of govern­ment upon the most corrupt principles? A public debt is thought necessary to keep the government together; as if go­vernment [Page 7]wanted any strength but that which she derived from the sense the people had of the advantages they derived from it.—New debts are, therefore, to be created under every pos­sible pretence. New debts will occasion new taxes—new taxes new officers—and new officers new supporters of the govern­ment, at the expense of the yeomanry of the country; for it is observable, that the public creditors, bank holders, &c. pay no taxes; those burdens are all borne by those who maintain their state, and nothing is left for these lordlings to do, but to watch over the safety of government, and sing hosannas to the highest. It was necessary to dry up the resources of the coun­try, lest the irritation occasioned by British insolence, and the confirmation of them by treaty, should at length rouse the spi­rit of the people; lest, being too rich, they should revolt against that virtuous supporter of our government, the British nation!

It was foreseen, too, as Camillus acknowledges, that clamours would be excited by the treaty. The British party might be too weak to silence them. It was a refined stroke of policy to strengthen their hands by the addition of such merchants as had unsettled accounts in Britain. The assumption of these debts by the general government, like the assumption of the state debts, cannot fail to make many partizans; nothing can be more convenient for the merchant, than that the farmer, the shopkeeper, the mechanic, the landholder, should discharge the debts he owes, while he is tearing them to pieces for the principal, interest, and profit upon that very capital which the state assumes. It may be said that this may be recovered against him by the state: but every body knows how negligent public bodies are in the recovery of debts—how impossible it will be for them to arrange all the little items of evidence on which the creditor recovers before the commissioners, especially where he is not consined to strict legal proof. And at all events, what advantages will not the debtor derive from many years delay? Can we wonder that some merchants are found in our cities to advocate a treaty, which enables them to ride on the necks of their fellow citizens! should we not rather be surprised (when the British subjects are deducted) to find that number so very small? is it not at once a proof of their virtue, and the egregi­ous vices of the treaty?

No. XV.

THE seventh article is subject, in a constitutional view, to all the objections which have been noticed in the 6th. Nothing, therefore, remains but to examine its political cha­racter. The first thing that strikes us, is its studied obscurity, and the extreme solicitude of the parties to render Mr. Jesserson obnoxious to the censure it might naturally be supposed to draw after it, by appearing to make it originate in his letter to Mr. Hammond, written at the moment when the irritation occasioned by the controversy with Mr. Genet was highest, and when it was doubtful whether a rupture with France would not have compelled us, according to the then favorite system, to throw ourselves into the arms of England. This letter, as was natural under these circumstances, carries our concessions to Britain, far beyond any thing which the laws of nations will warrant. These only require the restorations of vessels taken in the ports or waters of the neutral nations if they can be recovered; every capture under such circumstances being an insult to the nation within the jurisdiction of whom such capture was made. They also consider it as an unfriendly act, voluntarily to suffer the vessels of either party to arm themselves against the other; and should any vessel which had been so armed, enter their ports with prizes, it would be strictly consonant to the laws of nati­ons, to order such vessel to depart with her prize.—But no wri­ter that I have met with, gives the neutral nation a right to seize a prize, taken on the high seas, and to restore it to the original owner;—or much less, binds them to pay for the prizes so taken, which never entered their ports, merely because the vessel by which it had been captured, had privately, and without the consent or knowledge of the neutral government, armed in her ports. Mr. Jefferson's letter declares the president's opinion to be, that as by treaty with three nations, we are bound to use all the means in our power, to restore vessels taken in our ports, waters; or seas near our shores; so he thought the same protection should be extended to the vessels of Britain, though we had no such treaty with her—that if in any particular case, we had forborn or should forbear, for political reasons, to use the means for the restoring of such vessels, he then thought we should be bound to make compensation; but otherwise, where we had used means, and those means proved ineffectual, as we should not be bound to make restoration to the nations with whom we had treaties—he gave no opinion, that it ought to be done to Great Britain; that the same principle should be ex­tended, even to captures made on the high seas, by vessels armed [Page 9]in our ports, provided the prizes were brought into our ports. He concludes, as the result of these sentiments, "And hence, you see, sir, that the president contemplates restitution or compen­sation in cases before the 7th of August [1793] and after that date, restitution, if it can be effected by any means in our pow­er." From this it appears, that though the president's opinion was declared as to some cases, yet that as to others he gave no opinion. If, then, the article had referred, as some have con­tended, to the letter, for a definition of the cases in which compensation was to be made, it would be wholly indefinite, and it must have been left to the discretion of the commission­ers, a majority of whom may be British subjects, to declare the cases in which the United States shall be liable. As it was, however, possible that a majority of these commissioners, had the question been left to be construed by Mr. Jefferson's letter, would not have extended it to the length Lord Grenville wished, this discretion was taken from them; and the cases, in which the United States should be liable, carried not only far beyond what the president had declared to be his opinion, to wit, "The case of prizes taken in our waters, which we had used no means to have restored, and prizes taken upon the high seas, by ves­sels armed in our ports, if brought into our horbours." The treaty renders us liable, in every possible case, whether it was or was not in our power to restore the prize; whether it was taken upon the high seas, and sailed to our own or foreign ports. Nor is the letter referred to in any part of the article, in order to define the case intended by the article, but merely (if it had any other object than that I have mentioned) to prevent a second investigation of the question, where the engagements contained in the letter had been already fulfilled. This will appear from the preamble, which is always considered as a key to the article. "And whereas certain merchants and others, his majesty's subjects, complain, that in the course of the war they have sustained loss and damage by reason of the captures of the ves­sels and merchandize, taken within the limits and jurisdiction of the United States, and brought into the ports of the same, or taken by vessels originally armed in ports of the United States; it is agreed that in all such cases, where restitution shall not have been made, agreeably to the tenor of the letter from Mr. Jefferson to Mr. Hammond, &c. the complaints of the parties shall be referred to the commissioners," &c.

It is observable, that there is not one word in the article, that confines the judgment of the commissioners to cases in which we either connived at the capture, or used no means to restore the prize; nor to the case of prizes, which, after hav­ing [Page 10]been captured on the high seas, came into our ports; but extends the provision to all cases of vessels taken in our waters, provided they ever entered into our ports, notwithstanding our having been unable to recover them; or wherever taken, if by vessels armed in our harbours, whether they came into our ports or not. The article contains a complete and ample definition of the cases intended, so that the mention of the letter cannot be designed, in any sort, to limit the sense; it does not even say that restitution shall be made agreeably to the tenor of the let­ter, but "but where restoration has not been already made agreeably to the tenor of the letter," then, in all cases of cap­tures, as described in the preamble, the commissioners shall de­termine the amount, and the United States shall pay. The re­ference to the letter was to answer the double purpose—first, of rendering the writer odious, who, Camillus tells us, was Mr. Jay's rival in his further pursuit of power, and to preclude the captors, whose prizes had been taken from them agreeably to the tenor of the letter, from a second hearing before the com­missioners. Thus, then, Mr. Jay has, without any warrant from his own government, without any equivalent from the British, without any justification drawn from the law of na­tions, mortgaged the United States for uncertain and immea­surable sums. It was not enough, it seems, to relinquish our well founded claim, for compensation for the detention of our posts—the loss of our fur trade—the property carried off. It was not enough to charge the yeomanry of the country with the debts of the merchants; but, in addition to this, we must pay a very considerable part of the havoc that has been made by French privateers on British property, and this, too, without any real or pretended equivalent, and while our trade was suf­fering under British depredations. One would really suppose that the treasures of the United States were inexhaustible; that the art of government consisted not in relieving the burdens of the people, but in adding to their load, that they might crouch the more before their lordly masters; that instead of seeking for the support of government by convincing the people of its influence on their happiness, the object was to work upon our fears only—to assemble a chosen corps of stock jobbers about —I had almost said the throne—to make new debts, in order to acquire new recruits to this valuable band—to impose new taxes, that the uneasy sensations occasioned thereby, may afford a pretence to armed supporters of government to exert their benign influence—to strengthen these by innumerable officers, by boards of commissioners ( [...]ess than thirteen of which are provided for by this treaty, by ministers extraordinary, to put [Page 11]the concluding hand to a variety of matters that are purposely left unfinished by the treaty); by bands of surveyors, who are, at the expense of the union, to run over the interior of the country. In short, by adopting every expense which the pro­fusion of a corrupt government has encouraged in Britain.

CATO.

N. B. As the space allotted for this paper will not admit of my entering upon a new article, I will indulge myself in a short note, in order to observe, that Camillus having done me the honor to notice some of my remarks, it will give me peculiar pleasure, when I can do it without breaking in upon the course of my observations on the treaty, to address my­self to him in reply to his. For the present I confine myself to request, that his readers and mine will suspend their judg­ment of it, until an investigation of his law and his facts shall enable them to judge of both with some degree of precision. Genius is with difficulty retained within the limits of either; and as a specimen of the boldness with which it sometimes over­leaps both, I will only refer back to one of his late papers. In speaking of the Indian trade, he asserts, that seven-eighths of their trade, exclusive of the Hudson Bay territories, is drawn from the north side of the lakes; the position I maintain, is directly the reverse. As neither of us will probably think it delicate to balance the testimony we have received from in­dividuals, we must recur to other data, to confirm or refute our respective assertions. Those I shall assume, are so consonant to known and established facts, that I think I may rely upon Camillus's candour to admit them. My first position is, that savage nations hunt chiefly for subsistence, and to procure ne­cessaries which they cannot do without; that the proportion of this which each enjoys is much the same in the respective tribes on either side of the lakes; that, therefore, where the greatest number of savages live by the chase, the greatest quantity of furs and peltry will be collected, with this difference, that the Indians that are nearest the market, will be most careful of those they collect; will wear finer, and exchange more; they will also have a greater taste for luxuries, which will stimulate their industry and increase their ardour for the chase; that the bleak regions on the north side of the lake are more thinly in­habited than those on the south, where not only the difference of latitude, but the effect of the large bodies of waters in soft­ening the north-west winds, renders the climate much milder, and better fitted for the habitation of those who live a savage [Page 12]life. The great trading stations are, therefore, all on the south side of the lakes.

But let us, for the present, wave all those circumstances, which are so well known to operate upon the relative proportion of savages to the territory they inhabit; and let us take the ex­tent of territory as in part the rule by which to determine the number of inhabitants; it will even then be found, that the trad­ing country of the United States is near four times larger than that of Canada, exclusive of the limits of the Hudson's Bay company. Camillus professes to be ignorant of the extent of their boundary, which, I must own, surprises me; since he assures us, that he has made the fur trade an object of enquiry for years back; and more particularly as it appears, from the whole course of his writing, that he can command any materi­als in the power of Mr. Jay. It is hardly conceivable, that this gentleman, when treating on the subject of those limits in Lon­don, where every document of this kind could be instantly ac­quired, would have been so extremely negligent, as not to have possessed himself of the settlement by the commissioners, after the treaty of Utrecht, and the still more extended claim of the company, to which, without doubt, the utmost latitude will now be allowed. The southern boundary of the Hudson Bay company, as settled by commissioners, subsequent to the treaty of Utrecht, is the forty-ninth degree of north latitude, in the whole extent, till it meets with the head of Moose river, which brings it one third of a degree more south, thence it runs a north-east course, nearly parallel with the St. Lawrence river, along the heights that divide the waters which fall into Hud­son's Bay, from those that run into the St. Lawrence. This line runs within twenty miles of the north side of the lake of the Woods; supposing, as the latest geographers do, that lake to lie in forty-eight degrees and forty minutes north latitude. If, therefore, a line run from that lake due west, should intersect the Mississippi, or if not, till it intersects a line drawn from the head of that river, due north, till in meets the west line so drawn from the lake of the Woods, which must, in that case, be our boundary, it will only leave a strip of country of less than 30 miles in extent, to the north; nor will it be much broader on the north of lake Superior. To the west of the Mississippi, the British have no claim. Should the lake of the Woods lie one half a degree higher, which is very probable, if we judge from most maps of that country, our line will overtop that of the Hudson Bay company. But whether it does or not, the only Indian territory on the north side of the lakes, of the least consequence, is the space surrounded by the lakes, and bounded [Page 13]on the east by the Ottawa river, which empties itself at Mon­treal. The country east of that, I presume, cannot be frequented by our traders any more than the country east of the Hudson: And by their deducting both these from our account, and placing the Mississippi four degrees to the west of the lake of the Woods, the British Indian territory will be found (after de­ducting the great lake and settled country on both sides) to be, to that of the United States, as 15 is to 55. As to any terri­tory to the west of the Mississippi, I know of no ground whatever on which it can be claimed by the British; the west and north west coasts of America being actually possessed by Spain and Russia, who made the first discoveries there, and not by Britain) even if we should hold so absurd a doctrine, as to suppose that either one or the other could give a title to that great inland territory. After this statement of facts, if we take into consi­deration the infinitely greater population of the southern than the northern nations, it will not, I believe, be deemed extrava­gant to assert, that the Indian trade on our territory is ten times greater than that on the British side of the lakes. How greatly, then, must. Camillus have been deceived, even though he has been for years past, as he tells us, collecting information on this subject? How suspicious should it render him and his readers, when he makes assertions relative to matters with which he has taken less time to make himself acquainted? The limits of this paper will not permit me to travel from his facts to his law, or to compliment him upon the ingenuity with which he makes a judgment, in the reign of Elizabeth, a com­mentary upon an act which passed in that of Charles the Se­cond, half a century afterwards. It would, perhaps, have been more in point, to have shown any one decision of Lord Coke, in which a bare implication was said to over-rule an express statute. But an extraordinary defence requires as extraordinary means of defence. As I greatly respect the talents of Camillus, I cannot but with sympathy enter into his feelings, when this rash undertaking compels him to sin against his better judgment,

No. XVI.

THE second object of the seventh article, as stated in my last number, is "compensation to British citizens, for captures of their property within the limits and jurisdiction of the United States, or elsewhere, by vessels originally armed in our ports, in the cases in which the captured property having come within our power, there was a neglect to make restitution."

This precise view of the thing stipulated, is calculated to place the whole subject at once before the mind, in its true shape; to evince the reasonableness of it, and to dismiss the objections which have been made, as being foreign to the real state of the case. These objections are, in substance, that the compensation promised is of great extent and amount; that an enormous expense is likely to be incurred; and that it is difficult to prove, that a neutral nation is under an obligation to go the lengths of the stipulation.

These remarks obviously turn upon the supposition, errone­ously entertained or disingenuously affected,—that compensa­tion is to be made for all captures within our limits or jurisdic­tion, or elsewhere, by vessels originally armed in our ports, where restitution has not, in fact, been made. Did the stipula­tion stand on this broad basis, it would be justly liable to the criticism which has been applied to it.—But the truth is, that its basic is far more narrow—that instead of extending to all those captures, it is confined to the particular cases of them on­ly, in which the captured property came, or was, after the cap­ture, within our power, so as to have admitted of restitution by us, but restitution was not made, through the omission or neglect of our government. It does not extend to a single case, where the property, if taken within our jurisdiction, was im­mediately carried out of our reach—or where, if taken with­out our jurisdiction, it was never brought within our reach—or where, if at any time within our reach, due means were employed without success to effect restitution.

It will follow from this, that the cases within the purview of the article, must be very few—for, except with regard to three prizes, made in the first instance, where special considera­tions restrained the government from interposing, there has been a regular and constant effort of the executive, in which our courts have efficaciously co-operated, to restore prizes made within our jurisdiction, or by vessels armed in our ports. The [Page 19]extent or amount, therefore, of the compensation to be made, can by no possible means be considerable.

Let us, however, examine if the construction I give to the clause be the true one.

It is in these words:—"It is agreed that in all such cases where restitution shall not have been made agreeably to the tenor of the letter from Mr. Jefferson to Mr. Hammond, dated Sep­tember 5th, 1793, a copy of which is annexed to this treaty, the complaints of the parties shall be and hereby are referred to the commissioners to be appointed by virtue of this article, who are hereby authorized and required to proceed in the like manner relative to these as to the other cases committed to them; and the United States undertake to pay to the com­plainants in specie, without deduction, the amount of such sums as shall be awarded to them respectively," &c.

The letter of Mr. Jefferson, by this reference to it, and its annection to the treaty, is made virtually a part of the treaty. The cases in which compensation is promised, are expressly those in which restitution has not been made, agreebly to the tenor of that letter.

An analysis of the letter will of course unfold the cases in­tended.

1. It recapitulates an assurance before given by a letter of the 7th August, to the British minister, that measures were taken for excluding from further asylum in our ports, vessels armed in them to cruise on nations with which we were at peace, and for the restoration of the prizes the Lovely Lass, Prince William Henry, and the Jane of Dublin; and that, should the measures of restitution fail in their effect, the president considered it as incumbent on the United States, to make compensa­tion for the vessels. These vessels had been captured by French privateers, originally armed in our ports, and had been after­wards brought within our ports.

2. It states, that we are bound by our treaties with three of the belligerent nations, ^* by all the means in our power, to protect and defend their vessels and effects in our ports or waters, or on the seas near our shore, and to recover and restore the same to the right owners, when taken from them; adding, that if all the means in our power are used, and fail in their effect, we are not bound by our treaties to make compensation. It further states, that though we have no similar treaty with Great Bri­tain, it was the opinion of the president, that we should use [Page 20]towards that nation the same rule which was to govern us with those other nations, and even to extend it to captures made on the high seas and brought into our ports, if done by vessels which had been armed within them.

3. It then draws this conclusion, that having, for particular reasons, forbore to use all means in our power for the restitution of the three vessels mentioned in the letter of the 7th of Au­gust.—The president thought it incumbent upon the United States to make compensation for them: and though nothing was said in that letter, of other vessels, taken under like cir­cumstances and brought in after the 5th June, and before the date of that letter, yet when the same forbearance had taken place, it was his opinion, that compensation would be equally due. The cases, then, here described, are those in which ille­gal prizes are made, and brought into our ports, prior to the 7th of August, 1793, and in which we had forborn to use all the means in our power for restitution. Two characters are made essential to the cases in which the compensation is to be made; one, that the prizes were brought within our ports—the other, that we forbore to use all the means in our power to restore them.

4. The letter proceeds to observe, that, as to prizes made under the same circumstances, and brought in after the date of that letter, the president had determined, that all means in our power should be used for their restitution; that if these failed, as we should not be bound to make compensation to the other powers, in the analogous case, he did not mean to give an opi­nion, that it ought to be done to Great Britain. But still, if any case shall arise, subsequent to that date, the circumstances of which shall place them on a similar ground with those before it, the president would think compensation incumbent on the United States. The additional cases of which an expectation of com­pensation is given in this part of the letter, must stand on similar ground with those before described—that is, they must be characterised by the two circumstances of a bringing within our ports, and a negle [...] to use all the means in our power for their re­stitution. Every where the idea of compensation is negatived, where the prizes have not come within our power, or where we have not forborn to use the proper means to restore them.

The residue of the letter merely contains suggestions for giving effect to the foregoing assurances.

This analysis leaves no doubt that the true construction is such as I have stated. Can there be any greater doubt that the expectations given by the president, in the first instance, and which have been only ratified by the treaty, were in themselves proper, and have been properly ratified?

[Page 21] The laws of nations, as dictated by reason, as receive and practised upon among nations, as recognised by writers, esta­blish these principles for regulating the conduct of neutral powers.

A neutral nation (except as to points to which it is clearly obliged by antecedent treaties) whatever may be its opinion of the justice or injustice of the war on either side, cannot, with­out departing from its neutrality, favor one of two belli­gerent parties more than the other— benefit one, to the prejudice of the other—furnish or permit the furnishing to either, the instruments of acts of hostility, or any warlike succour or aid whatever, especially without extending the same advantage to the other—cannot suffer any force to be exerted, or warlike enterprise to be carried on from its territory, by one party against the other, or the preparation or organization there, of the means of annoyance; has a right and is bound to prevent acts of hostility within its jurisdiction; and, if they happen against its will, to restore any property which may have been taken in exercising them. These positions will all be found sup­ported in the letter or spirit of the following authorities; Bar­beyrac's note on Puffendor [...], b. viii. c. vi. s. 7. Grotius, b. iii. c. xvii. s. 3. Bynkershoeck, b. i. c. viii. p. 61—65. c. xi. p. 69 —70. Vattel, b. iii. c. vii. Bynkershoeck cites examples of restitution in the case mentioned.

Every treaty we have made with foreign powers, promises protection within our jurisdiction, and the restoration of pro­perty taken there. A similar stipulation is, indeed, a general formula in treaties, giving an express sanction to the rule of the laws of nations in this particular.

An act of congress, of the 5th June, 1794, which is ex­pressly a declaratory act, recognises at large the foregoing principles of the laws of nations, providing, among other things, for the punishment of any person, who, within the United States, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or is knowingly concerned in furnishing, fitting out, or arming, of any ship or vessel, with intent to be employed in the service of a fo­reign state, to cruise or commit hostilities upon the subjects or citizens of another foreign state, with which the United States are at peace; or issues or delivers a commission for any such ship or vessel, or increases or augments, or procures to be in­creased or augmented, or is knowingly concerned in increas­ing or augmenting the force of any ship of war, cruiser, or other armed vessel, in the service of a foreign state at war with another foreign state, with which the United States are at peace; [Page 22]or within the territory of the United States, begins or fets on foot, or provides or prepares the means of any military expedition or enterprise, to be carried on from thence against the dominions of any foreign state, with which the United States are at peace.

And our courts have adopted, in its fullest latitude, as con­formable, in their opinion, with those laws, the principle of restitution of property, when either captured within our juris­diction, or elsewhere, by vessels armed in our ports. The su­preme court of the United States has given to this doctrine, by solemn decisions, the most complete and comprehensive sanction.

It is therefore, undoubtedly, the law of the land, deter­mined by the proper constitutional tribunal, in the last resort, that restitution is due in the above mentioned cases.

And it is a direct and necessary consequence from this, that where it is not made by reason of the neglect of the govern­ment, to use the means in its power for the purpose; there results an obligation to make reparation. For, between nations, as between individuals, wherever there exists a perfect obliga­tion to do a thing, there is a concomitant obligation to make re­paration for omissions and neglects.

The president was therefore most strictly justifiable, upon principle, in the opinion which he communicated, that, in the cases of such omissions or neglects, compensation ought to be made. And in point of policy, nothing could be wiser: for had he not done it, there is the highest probability, that war would have ensued.

Our treaty with France forbids us expressly to permit the privateers of the enemy to arm in our ports, or to bring or sell there the prizes which they have made upon her. We could not, for that reason, have made the privilege of arming in our ports, if it had been allowed to France, reciprocal.—The al­lowance of it to her would, consequently, have been a clear violation of neutrality, in the double sense of permitting a military aid, and of permitting it to the one, and refusing it to the other. Had we suffered France to equip privateers in our ports, to cruise thence upon her enemies, and to bring back and vend there the spoils or prizes taken, we should have be­come by this the most mischievous foe they could have. For, while all our naval resources might have augmented the force of France, our neutrality, if tolerated, would, in a great degree, have sheltered and protected her cruisers. Such a state of things no nation at war could have acqui [...]sced in. And as well to the efficacy of our endeavours to prevent equipments in [Page 23]our ports, as to the proof of the sincerity of those endea­vours, it was essential that we should restore the prizes which came within our reach, made by vessels armed in our ports. It is known, that notwithstanding the utmost efforts of the government to prevent it, French privateers have been clan-destinely equipped in some of our ports, subsequent to the assurances which were given, that the practice would be dis­countenanced. If prizes made by such vessels were suffered to be brought into our ports, and sold there, this would be not only a very great encouragement to the practice, but it would be impossible that it should be regarded in any other light than as a connivance.

In such circumstances, can we blame our chief magistrate? Can we even deny him praise, for having diverted an imminent danger to our peace, by incurring the responsibility of giving an expectation of compensation? The conjuncture we may remem­ber was critical and urgent. Congress were at the time in re­cess. A due notice to convene them in so extensive a country, can hardly be rated at less than three months.

In this situation our envoy found the business. It is not true, in the sense in which it has been advanced, that he was to be governed by the fitness of the thing, unmindful of the opinion of the president. An opinion of the chief magistrate of the union, was to a diplomatic agent an authority and a guide, which he could not justifiably have disregarded.—The claim of compensation, on the other side, was greatly fortified by this opinion: Nor was it a matter of indifference to our national delicacy and dignity, that the expectation given by it should be fulfilled. It would have been inde [...]ent in our envoy to have resisted it. It was proper in him, by acceding to it, to refer the matter to the ultimate decision of that authority, which, by our constitution, is charged with the power of making trea­ties. It was the more proper, because the thing was intrinsically right. Every candid man, every good citizen, will rejoice that the president acted as he did in the first instance—that our en­voy acted as he did in the second—and that the conduct of both has received the final constitutional sanction.

The opinions of Mr. Jefferson, when they can be turned to the discredit of the treaty, are with its adversaries oracular truths. When they are to support it, they lose all their weight. The presumption, that the letter referred to had the concurrence of the judgment of that officer, results from a fact, generally understood and believed, namely, that the proceedings of the president, at the period when it was written, in relation to the [Page 24]war, were conformable with the unanimous advice of the heads of the executive departments.

This case of British property captured by privateers origi­nally armed in our ports, falsifies the assertion of the adversa­ries of the treaty, that the pretensions of Great Britain have been fully provided for. She had a colourable ground to claim compensation for all captures made by vessels armed in our ports, whithersoever carried in, or howsoever disposed of, especially where their equipment had been tolerated by our government. This toleration was to be referred, as well from a forbearance to suppress those vessels when they came within power, as from an original permission. Had compensation been stipulated on this scale, it is not certain that it would not have amounted to as much more than that which has been promised, as would counterbalance our claims, for negroes carried away, and for the detension of the posts. But instead of this, it is narrowed down by the treaty to such prizes of those vessels as were brought within our ports, and in respect to which we forbore to use all the means in our power for restitution. Here, then is a set off against doubtful and questionable claims relinquished on our side. Here, also, is another proof how much the anta­gonists of the treaty are in the habit of making random asser­tions. But can we wonder at it, when we reflect that they have undertaken to become the instructors of their fellow citizens on a subject, in the examination of which they unite a very super­ficial knowledge with the most perverse dispositions?

No. XVII.

THE eighth article provides merely, that the commissioners to be appointed in the three preceding articles, shall be paid in such manner as shall be agreed between the parties, at the time of the exchange of the ratification of the treaty; and that all other expenses attending the commissions, shall be defrayed jointly by the two parties, the same being previously ascertained and allowed by a majority of the commissioners; and that in case of death, sickness, or necessary absence of a commissioner, his place shall be supplied in the same manner as he was first ap­pointed— the new commissioner to take the same oath or affirma­tion, and to perform the same duties as his predecessor.

[Page 25] Could it have been imagined, that even this simple and equi­table provision was destined not to escape uncensured? As if it was predetermined, that not a single line of the treaty should pass without the imputation of guilt; nothing less than an in­fraction of the constitution of the United States has been charged upon this article. It attempts, we are told, a disposi­tion of the public money, unwarranted by and contrary to the constitution.—The examination of this wonderful, sagacious ob­jection, with others of a similar complexion, must be reserved for the separate discussion which has been promised of the con­stitutionality of the treaty.

Let us proceed, for the present, to the ninth article.

This article agrees, that British subjects, who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his Britannic majesty, shall continue to hold them, according to the nature and tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please, in like manner as if they were natives;—and that neither they, nor their heirs or assigns, so far as may respect the said lands, and the legal reme­dies incidental thereto, shall be regarded as aliens.

The misapprehension of this article, which was first ushered into public view, in a very incorrect and insidious shape, and was conceived to amount to the grant of an indefinite and per­manent right to British subjects to hold lands in the United States, did more, it is believed, to excite prejudices against the treaty, than any thing that is really contained in it. And yet when truly understood, it is found to be nothing more than a confirmation of those rights to lands, which, prior to the treaty, the laws of the several states allowed British subjects to hold;— with this inconsiderable addition, perhaps, that the heirs and assigns of those persons, though aliens, may hold the same lands: but no right whatever is given to lands of which our laws did not permit and legalize the acquisition.

These propositions will now be elucidated.

The term, hold, in the legal code of Great Britain and of these states, has the same and that a precise technical sense—It imports a capacity legally and rightfully to have and enjoy real estate, and is contradistinguished from the mere capacity of taking or pur­chasing, which is sometimes applicable to the acquisition of a thing, that is forfeited by the very act of acquisition. Thus an an alien may take real estate by purchase, but he cannot hold it. Holding is synonimous with tenure, which, in the feudal sys­tem, implies fealty, of which an alien is incapable. Land, therefore, is forfeited to the government, the instant it passes [Page 26]to an alien. The Roman law nullifies the contract entirely; so that nothing passes by the grant of land to an alien: but out law, derived from that of England, permits the land to pass for the purpose of forfeiture to the state. This is not the case with regard to descent, because the succession or transmission there, being an act of law, and the alien being disqualified to hold, the law, consistent with itself, casts no estate upon him.

The following legal authorities, selected from an infinite number of similar ones, establish the above positions, viz. COKE on LITTLETON, page 2, 3.—"Some men have capa­city to purchase, but not ability to hold. Some, capacity to pur­chase and ability to hold or not to hold, at the election of them­selves and others. Some, capacity to take and to hold. Some, neither capacity to take nor to hold, And, some are specially disabled to take some particular thing.—If an alien, Christian or Infidel, purchase houses, lands, tenements, or hereditaments to him and his heirs, albeit he can have no heirs, yet he is of capacity to take a fee simple, but not to hold."—The same, page 8. "If a man seized of land in fee, hath issue an alien, he cannot be heir, propter defectum subjectianis."—Blackstone's commentaries, book II. chap. xviii. § 2. "Alienation to an alien is a cause of forfeiture to the crown of the lands so alien­ated, not only on account of his incapacity to hold them, but likewise on account of his presumption in attempting, by an act of his own, to acquire real property." Idem, chap. xix. § 1. "the case of an alien born, is also peculiar; for he may pur­chase a thing; but, after purchase, he can hold nothing, except a lease for years of a house, for the convenience of merchan­dize."

Thus it is evident, that by the laws of England, which it will not be denied, agree in principle with ours, an ALIEN may take but cannot hold lands.

It is equally clear, the laws of both countries agreeing in this particular, that the word hold, used in the article under consideration, must be understood according to those laws, and therefore can only apply to those cases in which there was a legal capacity to hold—in other words, those in which our laws permitted the subjects and citizens of the two parties to hold lands in the territories of each other. Some of these cases ex­isted prior to the treaty of peace; and where confiscations had not taken place, there has never been a doubt, that the property was effectually protected by that treaty—Others have arisen since that treaty, under special statutes of particular states. Whether there are [...] others depending on the principles of the common law, need not be enquired into here, since the late [Page 27]treaty will neither strengthen nor impair the operation of those principles.

Whatever lands, therefore, may have been purchased by any British subject, since the treaty of peace, which the laws of the state wherein they were purchased did not permit him to acquire and hold, are entirely out of the protection of the ar­ticle under consideration; the purchase will not avail him; the forfeiture, which was incurred by it, is still in full force. 'As to those lands which the laws of a state allowed him to pur­chase and hold, he owes his title to them, not to the treaty.

Let us recur to the words of the article, "British subjects, who now hold lands, shall continue to hold them according to the nature and tenure of their respective estates and titles therein." But it has been seen, that to hold lands is to own them in a legal and competent capacity, and that an alien has no such capacity. The lands, therefore, which, by reason of the alienage of a British subject, he could not, prior to the treaty, legally pur­chase and hold—he cannot, under the treaty, continue to hold. As if it was designed to render this conclusion palpable, the provision goes on to say, "According to the nature and tenure of their respective estates and titles therein." This is equivalent to saying, they shall continue to hold as they before held. If they had no valid estate or title before, they will of course con­tinue to have none—the expressions neither give any new, nor enlarge any old estate.

The succeeding clauses relate only to descents or alienations of the land originally legally holden. Here the disability of ali­enage is taken away from the heirs and assigns of the primitive proprietors. While this will conduce to private justice, by en­abling the families and friends of the individuals to enjoy their property by descent or devise, which it is presumable, was the main object of the provision, there is no consideration of na­tional policy that weighs against it. If we admit the whole force of the argument, which opposes the expediency of per­mitting aliens to hold lands (and concerning which I shall barely remark here, that it is contrary to the practice of several of the states, and to a practice from which some of them have hi­therto derived material advantages) the extent to which the prin­ciple is affected by the present treaty is too limited to be felt, and in the rapid mutations of property, it will every day dimi­nish. Every alienation of a parcel of the privileged land to a citizen of the United States, will, as to that land, by inter­rupting the chain, put an end to the future operation of the privilege; and the lapse of no great number of years may be [Page 28]expected to make an entire revolution in the property, so as to divest the whole of the privilege.

To manifest the unreasonableness of the loud and virulent clamour, which was excited against this article, it has been observed by the friends of the instrument, that our treaty with France not only grants a much larger privilege to the citizens of France, but goes the full length of removing universally and perpetually from them the disability of alienism, as to the own­ership of lands. This position has been flatly denied by some of the writers on the other side. Decius in particular, after taking pains to show that it is erroneous—that the terms "goods moveable and immoveable," in the article of our treaty with France, mean only chattels real and personal in the sense of our law, and exclude a right to the freehold and inheritance of lands, triumphantly plumes himself on the detection of a fallacy of the writer of certain "candid remarks on the treaty," who gives the interpretation above stated to that article.

The error of Decius's interpretation, proceeds from a mis­understanding of the term goods, in the English translation of the article, to which he annexes the meaning assigned to that term in our law, instead of resorting, as he ought to have done, to the French laws for the true meaning of the corres­pondent term biens, which is that used in the French original. Goods, in our law, no doubt, mean chattel interests: but goods or "biens" in the French law, mean all kinds of pro­perty, real as well as personal. It is equivalent to, and derived from, the term bona, in the Roman law, answering most near­ly to "estates" in our law, and embracing inheritances in land, corporeal and incorporeal hereditaments, as well as pro­perty in moveable things.

When it is necessary to distinguish one species from ano­ther, it is done by an adjective— "biens meublés ét immeublés," answering to bona or res mobilia, or immobilia, things moveable and immoveable, estates real and personal.—The authorities at foot ^* will show the analogy of these different terms in the three different languages; but for fixing the precise sense of those used in the treaty, I have selected and shall quote two authori­ties from French books, which are clear and conclusive on the point.—One will be found in the work of a French lawyer, entitled, Collection DE DECISIONS NOUVELLES, ET DE NO­TIONS RELATIVES A LA JURISPRUDENCE ACTUELLE, [Page 29]under the Article BIENS ^†, and is in these words, viz. "The word bien has a general signification, and comprehends all sorts of possessions, as moveables, immoveables, purchases, acquisitions by marriage, inheritances, &c. It is distinguished into these par­ticulars, moveables, immoveables, purchases, and inheritances, subdividing inheritances into p [...]ternal and maternal, old and new. Moveable biens are those which may be moved and transported from one place to another, as wares, merchandizes, and cur­rent money, plate, beasts, household utensils, &c. Immoveable biens are those which cannot be moved from one place to ano­ther, as inheritances, houses, &c. Biens are distinguished again into corporeal and incorporeal" Another ^‡ is drawn from the celebrated institutes of the French law, by Mr. Argou, and is in these words, "Biens—This is in general whatever composes our riches. There are two sorts of biens, moveable and im­moveable. Moveable, all that may be transported from one place to another. Immoveable, lands or what is presumed to have the nature of land. They are distinguished into two kinds, real and fictitious. Real are not only the substance of the earth, which is called fonds; but all that adheres to its surface, whe­ther from nature, as trees, or from the hand of man, as houses and other buildings. The others are called fictitious, because they are only real by fiction, as offices which are vendible, and subject to fiscal reversion, rent-charges," &c. The signification of bona in the Roman law, corresponds, as was observed above, with that of biens in the French. "Bonorum appellatio univer­sitatem quandem, et non singulas res demonstrat;" which may be rendered, "The appellation of BONA designates the totali­ty [Page 30]of property or estate, and not particular things."—And hence it is, that the cessio bonorum of a debtor is the surrender of his whole fortune.

Both these terms, "bona" and "biens," are indiscriminately translated goods, estates, effects, property. ^*—In our treaty with France they are translated "goods;" but it is evidently a great mistake to understand the expression in the limited sense of our law. Being a mere word of translation, it must be understood according to the meaning of the French text; for it is declared in the conclusion of the treaty, that it was originally composed and concluded in the French tongue. Moreover, the term goods, when used in our language, as the equivalent of the term bon [...], or biens, is always understood in the large sense of the original term; in other words, as comprehending real and personal estate, inheritances as well as chattel interests.

Having now established the true meaning of the terms "goods moveable and immoveable," let us proceed with this guide to a review of the article.

Its first and principal feature is, "that the subjects and inha­bitants of the United States, or any of them, shall not be re­puted AUBAINS in France. This is the same as if it had been said, "they shall not be reputed ALIENS." For the definition of AUBAINS, as given in the work before first cited, is this— "AUBAINS are persons not born under the dominion of the king," the exact equivalent of the definition of ALIEN in the English law. If our citizens are not to be reputed aliens in France, it follows, that they must be exempted from alien dis­abilities, and must have the same rights with natives, as to ac­quiring, conveying, and succeeding to real and other estate. Accordingly the article, having pronounced that our citizens shall not be reputed aliens in France, proceeds to draw certain consequences. The first is, that they shall not be subject to the droit d'aubaine. The droit d'aubaine was, under the monarchy, one [...]f the regalia; it was the right of the prince to succeed to all estates or property situate in the kingdom, belonging to fo­reigners, who died without legitimate children, born in the kingdom.

It is to be observed, that the laws of France permitted fo­reigners to acquire and hold even real estates, subject to the right of the sovereign, in case of demise without issue born under his allegiance. But this right of the sovereign, as to [Page 31]American citizens, is abrogated by the treaty; so that their legal representatives, wherever born, may succeed to all the property, real or personal, which they may have acquired in France.

And, in conformity to this, it is further declared, that they may, by testament, donation, or otherwise, dispose of their goods, moveable and immoveable (that is, as we have seen, their estates, real and personal) in favor of such persons as to them shall appear good; so that their heirs, subjects of the United States, whether residing in France or elsewhere, may succeed to them, ab intestato, without being obliged to obtain letters of naturalization.

These are the stipulations on the part of France; and they amount to a removal from the citizens of the United States, of alien disabilities in that country, as to property. I say as to property, because, as to civil and ecclesiastical employments, it seems to have been a principle of the French law, that the incapacity of foreigners could only be removed by special dis­pensations, directed to the particular object.

What are the correlative stipulations on the part of the United States? They are in these terms, "the subjects of the most Christian king shall enjoy, on their part, in all the domi­nions of the said states, an entire and perfect reciprocity, relative to the stipulations contained in this article. But it is at the same time agreed, that its contents shall not affect the laws made, or that may be made hereafter in France, against emigrations, which shall remain in all their force and vigour; and the United States on their part, or any of them, shall be at liberty to enact such laws relative to that matter, as to them shall appear proper."

Since, then, the article removes from our citizens the disabili­ties of aliens as to property in France, and stipulates for her citizens, an entire and perfect reciprocity in the United States, it follows, that Frenchmen are equally exempt in the United States from the like disabilities. They may, therefore, hold, suc­ceed to, and dispose of, real estates.

It appears that the sense both of the French and of the Ame­rican government has corresponded with this construction.

In the year 1786, the Marquis Bellegarde and the Chevalier Meziere, sons of the two sisters of General Oglethorpe, repre­sented to the Count de Vergennes, the French minister for foreign affairs, that they met with impediments to their claims from the laws of Georgia, prohibiting aliens to hold lands. Mr. de Vergennes communicated their complaint to Mr. Jefferson, our then minister in France, observing, that the alien disabili­ties [Page 32]of the complainants having, in common with those of all Frenchmen, been removed by the treaty between the two coun­tries, they ought to experience no impediments on that account, in the succession to the estate of their uncle, and that the inter­fering laws of Georgia ought to be repealed so as to agree with the treaty.

Mr. Jefferson, in reply, states the case of the complainants, proving that they were precluded from the succession for other reasons than that of alienism; and then adds, that as the treaty with France having placed the subjects of France in the United States on a footing with natives, as to conveyances and descents of property, there is no necessity for the assemblies to pass laws on the subject, the treaty being a law, as he conceives, superior to those of particular assemblies, and repealing them when they stand in the way of its operation.

Where now, DECIUS, is thy mighty triumph? Where the trophies of thy fancied victory? Learn that in political, as well as other science,

The fixing the true sense of the article in the treaty with Great Britain, is alone a refutation of most of the objections which have been made to it, by showing, that they apply not to what really exists, but to a quite different thing. It may be use­ful, however, to pass them briefly in review with some cursory remarks.

The article, it is said, infringes the rights of the states, and impairs the obligation of private contracts, permits aliens to hold real estates against the fundamental policy of our laws, and at the hazard of introducing a dangerous foreign influence; is unequal, because no American has been hardy enough, since the peace, to purchase lands in England, while millions of acres have been purchased by British subjects in our country, with knowledge of the risk—is not warranted by the example of any other treaty we have made; for if even that of France should contain a similar provision (which is denied) still the difference of circumstances would make it an inapposite precedent; since this was a treaty made, flagrante bello, in a situation which justified sacrifices.

These objections have been formally and explicitly urged. One writer, afraid of risking a direct assertion, but insidiously endeavoring to insinuate misconception, contents himself with putting a question. What (says he) will be the effect of this article as to the revival of the claims of British subjects, trai­tors or exiles?

[Page 33] As to the infraction of the rights of the states, this, it is presumed, must relate to the depriving them of forfeitures of alien property. But as the article gives no right to a British subject to hold any lands which the laws of a state did not previously authorize him to hold—it prevents no forfeiture to which he was subject by them, and, consequently, deprives no state of the benefit of any such forfeiture. With regard to es­cheats for want of qualified heirs, it depended on every pro­prietor to avoid them by alienations to citizens.

As to impairing the obligation of private contracts, it is difficult to understand what is meant. Since land, purchased by an alien, passes from the former proprietor, and becomes forfeited to the state, can it be afterwards the subject of a va­lid private contract? If the effect of the article was to con­firm a defective title derived from the alien, how could this impair the obligation of any other private contract concerning it? But whatever may be intended, it is enough to say, that the article does not confirm the title to any land which was not before good. So that the ground of the objection fails.

As to permitting aliens to hold land, contrary to the policy of our [...]ws, it has been shown, that, on a true construction, it only applies to the very limited case of the alien heirs and assigns of persons who before rightfully held lands, and is confined to the identical lands so previously holden; that its greatest effect must be insignificant; and that this effect will continually decrease.

As to the millions of acres, said to have been purchased by British subjects since the peace, it has been shown, that if by the laws of the states in which the purchases were made, they were illegally acquired, they still remain in the situation in which they were before the treaty.

As to there being no precedent of a similar stipulation with any other country, it has been proved, that, with France, we have one much broader. The idea, that this was a sacrifice to the necessity of our situation, flagrante bello, is new. Are we then to understand, that we in this instance gave to France, as the price of her assistance, a privilege in our country, which leads to the introduction of a foreign influence, dangerous to our independence and prosperity? For to this result tends the argument concerning the policy of the exclusion of aliens. Or is it, that no privilege, granted to France, can be dan­gerous?

Those who are not orthodox enough to adopt this last po­sition, may, nevertheless, tranquillize themselves about the con­sequences. This is not the channel through which a dangerous [Page 34]foreign influence can assail us. Notwithstanding all that has been said, it may, perhaps, bear a serious argument, whether the permission to foreigners to hold lands in our country, might not, by the operation of private interest, give us more influ­ence upon foreign countries, than they will ever acquire upon us, from the holding of those lands. Be this as it may, could we not appeal to some good patriots, as they stile themselves, by way of eminence, for the truth of the observation, that foreign governments have more direct and powerful means of influence than can ever result from the right in question?

Moreover, there was a peculiar reason for the provision which has been made in our last treaty, not applicable to any treaty with another country. The former relative situation of the United States and Great Britain, led to the possession of lands by the citizens of each in the respective territories. It was natural and just to secure by treaty their free transmission to the heirs and assigns of the parties.

As to the revival of the claims of traitors or exiles; if pro­perty, confiscated and taken away, is property holden by those who have been deprived of it, then there may be ground for alarm on this score. How painful is it to behold such gross at­tempts to deceive a whole people on so momentous a question! How afflicting, that imposture and fraud should be so often able to assume with success the garb of patriotism? And that this sublime virtue should be so frequently discredited by the usurpation and abuse of its name!

No. I.

THE constitution of the United States empowers the pre­sident, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senate concur.

In pursuance of a power thus vested, the senate of the United States did consent to and advise the president of the United States, to ratify the treaty of amity, commerce, and naviga­tion, between his Britannic majesty and the United States of America, concluded at London, the 19th of November, A. D. 1794; on condition, that there be added to said treaty an arti­cle, whereby it shall be agreed to suspend the operation of so much of the 12th article, as respects the trade which his said majesty thereby consents may be carried on between the United States and his islands in the West Indies, in the manner, and on the terms and conditions, therein prescribed.

A copy of this treaty was sent by Mr. Mason, one of the senators from Virginia, to the editor of the Aurora, in Philadel­phia, that it might be published.

On Tuesday the 7th of July, the editors of the Chronicle advertised, in the Mercury, that a copy of the treaty before referred to, was brought by express from Philadelphia, and was for sale at their office, and at Larkin's book store, in Cornhill.

On the 8th of July, a notification, issued by order of the select­men of Boston, notifying the inhabitants to meet on the 10th, agreeably to the request of a number of inhabitants, to take into their most serious consideration, such measures as might be deemed expedient, relative to the treaty pending between the United States and Great Britain.

On the 9th of July, the editors of the Chronicle published in their paper, the eight first articles of the treaty.

[Page 62] The foregoing was the only publication of the treaty, prior to the meeting of the inhabitants on the 10th, except a publica­tion of its supposed contents, by some one who had read it, and which, on comparison with Mr. Mason's copy, appears to be incorrect.

On the 10th, the inhabitants met in Faneuil Hall, where, 1500 of the citizens, without reading the treaty there, voted their disapprobation, and not one appeared in favor of it.

A committee of fifteen was appointed, "to report the rea­sons, in writing, which led to the disapprobation of the treaty."

On the Monday following, being the 13th, the committee reported the objections of the town, before the reading of which, the treaty was read.—The objections were then accepted by the town, without one dissenting voice; and a vote passed, direct­ing their immediate transmission to the president of the United States, and expressing "their earnest hope and confident reli­ance, that the reasons assigned would have their influence to withhold his signature from the ratification of this alarming in­strument."

The senate met on the 8th June, from which time to the 24th, the merits of the proposed treaty were discussed, with a [...] the advantages that could be derived to this discussion, from examining documents that show the real state of our commere [...] —the relation of this country to others—the grounds of ou [...] complaints against the British, with their answers—the ground [...] of complaint the British had against this country, with the an­swers of America. On the 24th, the senate advised the presi­dent to ratify the treaty, in manner and on the conditions spe­cified in the first part of this paper.

A concurrence of two-thirds of the number present was ne­cessary to constitute a vote of the senate on this subject; and it is understood, that this majority included all the senators from New England (except Mr. Langdon, of Portsmouth, and Mr. Robinson, of Vermont) one senator from New York, all from New Jersey, Pennsylvania, Delaware, and Maryland, one from Kentucky, one from South Carolina, and one from Georgia.— Virginia and North Carolina were the only states in the union, whose senators were unanimous against its ratification.

Unless the present conduct of these senators, in advising the president to ratify the treaty, has deprived them of the confi­dence of their fellow citizens, it may be truly said, that, as individual members of the community, none stand higher i [...] the public estimation, as men of pure morals, found under­standing, industrious and steady attention to those duties, with which they have been entrusted. Their conduct, as public men, [Page 63]has been tried and known in times the most critical and dan­gerous; and has received the just tribute of applause, from a grateful country, for having preserved it from the distresses of anarchy and war.

Duty of ourselves demands that we should respect the legal and constitutional doings of those we have appointed to ad­minister [...]ur public affairs; at least so far as not to declare to the world, "That their acts are highly injurious to the com­mercial interests of the United States, derogatory to the na­tional honor and independence, and may be dangerous to the peace and happiness of their citizens,"—without the most care­ful investigation of the subjects, and without the most substan­tial reasons in support of charges which so deeply wound the honor of the government, and the character of those who have constitutionally done the act, thus boldly accused.

Men who love their country, will endeavour to support its government, at least will refrain from grossly criminating its conduct, until they have been convinced that no good reasons can be offered, for that which to them may at first appear doubtful. Such men ought not instantly to enlist under the hanners of its avowed opponents, nor hastily surrender their judgments to those who have uniformly calumniated all those acts, which time and experience have sanctioned, as wise, and productive of greater prosperity than is enjoyed in any other country. Men who know the value of character, from a just regard of their own—who have sensibility duly to appreciate the worth of public same—will be cautious how they attempt to inflict a wound on the reputation of others, which, if aimed at themselves, would produce the most painful sensations.

The town of Boston has given its reasons for assertions which have so deeply wounded the honor of the government; and which assertions, if true, must extremely weaken the confidence of the people in the superiority of their own con­stitution.

Permit, therefore, Mr. Russell, a fellow citizen, through the medium of your paper, to examine the solidity of their reasons, in proof that this declaration, that "the treaty, if ratified, will be highly injurious to the commercial interests of the United States, derogatory to their national honor and in­dependence, and may be dangerous to the peace and happiness of their citizens."

The first is, "This compact (meaning the treaty) professes to have no reference to the merits of the complaints and pre­tensions of the contracting parties; but in reality the complaints and pretensions of Great Britain are fully provided for, while a [Page 64]part only of those of the United States have been brought in­to consideration."

The words of the treaty are, that "the parties being desirous, by a treaty of amity, commerce, and navigation, to terminate their differences, in such a manner, as (without reference to the merits of their respective complaints and pretensions) may be the best calculated to produce mutual satisfaction and good understanding." The words of the treaty are copied here, that, by comparing them with the first reason of the town, the public may judge of their true import, and not be induced to bel [...]ve, that the two nations met together, with the design of terminating their differences, and, at the same time, disre­garded the real subjects of controversy.

The great charge in this reason is, that the complaints and pretensions of Great Britain are fully provided for, while a part only of those of the United States have been brought in­to consideration.

It is to be presumed, that the committee meant here, that the minister on the part of America, never brought into con­sideration all the complaints and pretensions of his country. Because, if brought into consideration, and proved to be un­founded, or, for any reason, waved, it could not be expected, that such consideration, or the reasons which refuted the com­plaints, should appear in the treaty; it would be useless and unprecedented.

That the American minister did not bring them into consi­deration, is an assumption of a fact by the committee, for which they have not given any evidence.

If the correspondence and arguments used by the minister who negociated the treaty, were before the town, or the com­mittee—or if they had such information of their doings, as could be relied on—it would probably have been stated. Can­dour requires, that before a charge of gross neglect is believed against any man, some evidence should be adduced to support the charge.

That every complaint and pretension of the United States was duly made and enforced by the American minister, is to be presumed from his known fidelity, understanding, and patriot­ism. It may also be inferred from the following considera­tions:

The president of the United States undoubtedly gave him instructions on this head. The report made of the negocia­tion, would show whether any thing was neglected on the part of the United States. This report was probably before the senate.

[Page 65] It is not presumable, that the president would accept the re­port of his minister as satisfactory, or consider the negocia­tion as completed, unless every matter of importance was brought into consideration; or that the senate would recom­mend to the president, to ratify a treaty that was to terminate all differences, where it appeared to them that the complaints of our own country were not brought into consideration. Further, it is not probable, that the minority of the senate, who had before them the whole negociation, would have ne­glected to state this, if it had existed, as a reason for rejecting the treaty; whereas, in the communication made by Mr. Ma­son, no such charge appears, nor in the motions of Mr. Taze­well and Mr. Burr. It may, therefore, fairly be inferred, until the town or its committee please to give some evidence to the contrary, that every complaint and pretension of the United States, was brought into consideration.

The second reason is, "Because, in the stipulation which surrenders our posts on the western frontiers, no provision is made to indemnify the United States, for the commercial and other losses they have sustained, and the heavy expenses to which they have been subjected, in consequence of being kept out of possession for twelve years, in direct violation of the treaty of peace."

In this reason, the town must intend that no treaty should be acceded to, unless the British nation would first agree to indemnify the United States for all losses, that arose from our not being in possession of the posts the last twelve years.

This would be on the part of Great Britain to acknowledge that the inexecution of the treaty of 1783, was entirely her fault—This is probably a matter, she would dispute; and we are in candour obliged to acknowledge, that the 4th article of that treaty, which relates to payment of debts, was opposed by some of the states very soon after, if not before the de­finitive treaty was signed; and that it continued unexecuted in some of the southern states, until the federal government was established. If she can justly impute the first breach to the United States, our claim of indemnity, for her violation, must be doubtful. But supposing it otherwise, and that it be clear to us, that she retained the posts wrongfully, and with­out any just provocation on our part—Is it probable that she would so humiliate herself, as to confess she was the only party who had acted wrong, and avow herself the author or cause of all the calamities which have, or which we suppose have been derived from the inexecution of the treaty, and now submit to pay all the damages that had arisen therefrom?

[Page 66] In the various wars that have taken place for the wrongful detention of territories; few, if any, are the instances, that the vanquished nation has paid for the injuries and losses that have arisen from such detention.

The most that is commonly attained, is a restoration of such territory. Independent nations, owning no superior, qualified to judge of their conduct, will seldom acknowledge they have done wrong, especially when possessed of power to support their own cause. It is wise both in a minister, and a nation, to refrain from insisting on points, which would only produce crimination, and recrimination, without advancing the great objects of their negociation. Let the candid consider, if it is probable, that any reasoning they could suggest, would have induced Great Britain, to accede to such a stipulation as this objection supposes.

If not, would it be wise in us to refuse the posts, and still suffer the evils we feel from being deprived of them—or at­tempt to gain them by force? If successful in this latter mode, is it probable, that, at the end of a war, we could induce Britain to pay us the losses suffered by the twelve years deten­tion, added to the duration of hostilities, and the further ex­penses of a war, undertaken to regain them? There are few men, who will say such an event can be calculated on—If, thou, it is not probable that Great Britain could be induced by ar­guments to accede to this stipulation, nor that we could have attained it by war, it must certainly be considered wise in the minister to accept the posts, and in the senate to advise the ratification of the treaty, notwithstanding she did not stipulate to pay the losses consequent on her detention of them.—It ought also to be remarked, that although much has been said about me [...]ing a demand of the posts, nothing has been in­timated in public, that a demand should be made for damages, for not relinquishing them before; much less, that we should refuse to receive them, unless we could be paid for such da­mages, or that we would attempt to gain such damages by war; especially when it had never been hinted, that the United States would hazard a war even to gain the posts.

No. II.

THE third reason of the town of Boston against ratify­ing the treaty, is, because no indemnification is to be made to the citizens of the United States for property taken from them at the close of the war, the restitution of which is provided for by the same treaty.

The words of the treaty of 1783, referred to by the town, are probably these, "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. &c.

It is understood, that the United States contend, that this description applies to negroes, remaining within the British lines after the peace, but who, having been captured, or in­vited by proclamation, had fled to the British during the war. The British government contend for another construction, and say, that negroes captured in war, or who, invited by procla­mation, had taken refuge with them during the war, could be considered as American property, no more than ships taken, or horses strayed to them during the war. That, on the capture of negroes by the British, or the acceding by the negroes to the terms of their proclamation, they ceased to be the property of the Americans.

If this reasoning of the British be not satisfactory to the people of the United States, candour will oblige them to ad­mit, that the British government may think it just, and con­sequently, a point extremely hard, if not impossible, to be ob­tained from them, since the concession would imply a sacrifice of the public faith, which had been pledged to the negroes. It is not known, that the British carried away other property.

The amount in value, depending on this point, is greatly exaggerated, having been stated, in conversation, at many millions of dollars; while it is known, from authentic docu­ments, that the whole number of negroes, to whom the pro­visions in the treaty could possibly relate, fall short of 3000, that being the total carried away after the peace, including many free negroes, and many slaves, who, with their proper masters, had taken refuge within the British lines. Let any man make the probable deduction for free negroes, and those slaves who accompanied their masters, and consider that the remainder included those of extreme old age, and the youngest infants, the sick and the well, the worthless, and those of va­lue, and he must be convinced, however unsatisfactory the con­struction given by the British may be to his mind, that the evil [Page 68]is not of great magnitude, by no means sufficient to press an indemnity for, in hazard of the property taken from our citi­zens on the ocean, in hazard of our peace, and other articles of the treaty, which may be considered beneficial to the United States.

The fourth reason is, "Because the capture of vessels and property of the citizens of the United States, made under the authority of the government of Great Britain, is a national concern; and claims, arising from such captures, ought not to have been submitted to the decision of their admiralty courts; as the United States are thereby precluded from having any voice in the final determination of such cases, and because the indemnification proposed to be made, is to be sought by a process, tedious and expensive, in which justice may be delayed to an unreasonable time; and eventually lost to many of the sufferers, from their inability to pursue it; and because this mode of indemnification bears no proportion to the summary method adopted for the satisfaction of British claims."

The first charge here is, that claims arising from captures made on American property ought not to have been submitted to the decision of their admiralty courts.

In the year 1753, the king of Prussia complained to the king of Great Britain, that the property of his subjects had been unlawfully captured and condemned on the high seas, by sub­jects of the king of Great Britain. The reply then was, that the property had been regularly tried in the admiralty courts of Great Britain, which courts tried causes according to the universal law of nations, and the stipulations of treaty; that affairs of this kind are and can be cognizable only in the courts belonging to that power where the seizure is made.

In our own country, the British minister complained to Mr. Jefferson, then secretary of state, that certain subjects of his king were injured by an inability to obtain their just demands.

Mr. Jefferson replied, "that no nation can answer for per­fect exactitude of proceedings in all their inferior courts—it suffices to provide a supreme judicature, where error and par­tiality will be ultimately corrected. With this qualification, we have heretofore been in the habit of considering the admini­stration of justice in Great Britain, as extremely pure. The administration of justice is a branch of the sovereignty over a country, and belongs exclusively to the nation inhabiting it— When a cause has been adjudged, according to the rules and forms of the country, its justice ought to be presumed.—If any instances of unlawful impediments have existed in any of [Page 69]the inferior tribunals, they would, like other unlawful proceed­ings, have been over-ruled on an appeal to the higher courts. If not over-ruled, then a complaint to the government would have been regular, and their interference probably effectual. If your citizens would not prosecute their rights, it was impossi­ble they should recover them, or be denied recovery: and, un­til a denial of right through all the tribunals, there is no ground of complaint."

Here it appears, that, in other cases, and with other nati­ons, this has been thought just by Great Britain: and, in our own country, the doctrine has been adopted towards Great Britain, and acquiesced in on her part.

It ought likewise to be remarked, that most of the seizures complained of by the American citizens, have been made by privateers owned by private individuals; and that every British subject has a right, which neither king nor minister can de­prive him of, to have his cause tried by the courts of his country; and it is not impossible that some claims may have been made by Americans, where the property is liable, by the law of nations, to be condemned. It ought also to be remem­bered, that the British government made provision for the re­gular bringing forward to trial, causes, which, from certain circumstances of the claimants, had, by strict law, lost their right to a trial in the supreme courts of admiralty; and that our own government has sent a person to procure papers and documents from the courts of vice admiralty, to support the claims of our citizens; to enter appeals, and give security for their prosecution, free of expense, to the claimants. The trial by admiralty courts is supported, alluded to, and enforced by many treaties. "In this method, all captures at sea have been tried, during all the late wars, by the European powers, and submitted to by the neutral powers. By courts of admiralty, acting according to the laws of nations, and particular trea­ties, all captures at sea have immemorially been judged of, in every country of Europe; any other method of trial would be manifestly unjust, absurd, and impracticable." Thus the law and customs of nations have been stated by the ablest and most re­spectable civilians of the present age.

It may justly be inferred, that the evils of the unfortunate people, whose property has been captured, will be redressed, in a manner known and practised by other nations, in similar cases, and recognized as right by ourselves;—that the injuries, apprehended by the town for the sufferers, from the expense attending the suits, and their incapacity to pursue their claims, have been fully provided for by the American government.

[Page 70] To provide against evils which this method might not reach, it is expressly warranted, in the 7th article of the treaty, "that in all cases where adequate compensation cannot, for whatever reason, be now actually obtained, had, and received, by the said merchants and others, in the ordinary course of justice, full and complete compensation for the same, will be made by the British government to the said complainants."

The other part of the charge, contained in this reason, is, that the mode of indemnification bears no proportion to the summary one adopted for the satisfaction of British claims.

The same 7th article of the treaty stipulates, that the de­claration of the president, as contained in Mr. Jefferson's let­ter, of the 5th of September, 1793, to Mr. Hammond, shall be carried into execution. This letter, which is annexed to the treaty, states, that having, for particular reasons, forborne to use all the means in the power of the United States, for the restitution of certain vessels, the president thought it incumbent on the United States to make compensation therefor.

The government of the United States, voluntarily forbear­ing to make use of all the means in their power to obtain jus­tice for certain British subjects, is certainly a different case from captures by British subjects, of American property, on which the British government expressly stipulates, that she will make use of all the means in her power to obtain restitution from the captors, of property wrongfully taken; and, if these means are inadequate, from whatever reason, she will make full and complete compensation to the complainants. The American government having decided, that the demand of the British minister was right, chose between two evils, viz. That of compelling restitution from the wrong-doer when in their power, or making compensation itself.—It chose the latter.

The British government chose the former; and Mr. Jefferson declares, in the letter before referred to, "that where all the means in the power of the nation are used to obtain restitu­tion, and they fail; he did not mean to give an opinion, that restitution ought to be made by the government;" but, in this case, Mr. Jay has induced the British government to use all the means in their power, and make compensation, when these fail.

It is presumed, that a reference to the article in the treaty, Mr. Jefferson's letter, and a consideration of the law of nations, as recognized by Europe and America, will convince all candid men, that the fourth reason of the town ought to have no weight against the treaty.

[Page 71] The fifth reason is, "Because this compact admits British subjects to an equal participation with our own citizens, of the interior traffic of the United States with the Indians, through our whole territorial dominions, while the advantages ostensibly reciprocated to our citizens, are limited both in their nature and extent."

It hath been well understood, by men acquainted with the country, occupied by the Indians, within the territory of the United States, and that which falls within the British dominions, that by far the greatest proportion of furs are collected within the British dominions. If this is true, much is gained to the United States by the fur trade, while Britain has nothing in return, but the liberty of traversing a wilderness, from which no traffic can be obtained. A little reflection will convince us, that our means of paying for such furs, and our export trade, opened by this treaty, are really superior to the benefits de­rived to Britain, and will prove a source of great wealth to the Americans.

While we are possessed of an extent of sea coast, so immense, compared with that of Great Britain, it will readily be seen, that the European and Asiatic goods (the latter of which can be afforded on better terms by us, than the subjects of Great Britain) exported from the United States, into their interior countries, must greatly exceed any quantities the British colo­nists can bring into the United States on that quarter. The embarrassments attending an importation from Europe into Ca­nada, New Brunswic, and Nova Scotia, by sea, and confined as those inhabitants of the countries are in their trade to the mother country, compared with our advantages of supplying them, by our easy communication with them, and with every part of the world, will convince all candid men, that the ad­vantages, of this part of the treaty, are chiefly on our side.

But still it may be said, they have a right to come into our country, and we have not a right to enter the seaports of their colonies in our own vessels. If it appears from an examination of the advantages and disadvantages of the article of the trea­ty here referred, to that we receive more than we grant, it must be admitted that this reason ought not to prevail against a ratification of the treaty.

By the treaty we are equally admitted into each other's terri­tory on the land board, for the purposes of traffic. Before the treaty is ratified, neither enjoys this right. They enter our sea­ports as freely now, as they can by the treaty—we are not per­mitted to enter theirs. This instrument gives them no new right on the sea board. It does not diminish any we possess. Under [Page 72]the treaty, we can carry on commerce with their colonies by land. From reasons before stated, our trade there must be very advantageous, while theirs in our territory cannot be disadvan­tageous.

By this article, therefore, it appears we have gained much, for which we have given but little, if any thing; for none will pretend, that by the means of the lakes, the British colonists can under-sell the American merchant; still less will any pre­tend that we do not gain immensely more of the fur trade than we grant.

The sixth reason is, "Because the alien duty upon our mer­chandize, imported into the United States by British subjects, in their own bottoms, is, if not wholly suspended, at least con­tracted not to be increased."

The 15th article of the treaty contains a stipulation of both parties, that places their ships and merchandizes reciprocally on the footing of the most favored nations, and merely reserves a right to the British government, to impose on American ves­sels, entering into British ports in Europe, a tonnage duty equal to what British vessels pay in American ports, and such duty as may be adequate to countervail the difference of duty, now payable on the importation of European and Asiatic goods, when imported into the United States, in British or in Ameri­can vessels.

This must be the article to which the sixth reason alludes— and it certainly cannot be "derogatory to our national honor and independence" to be willing to meet the British nation on terms of equality; when it is considered, that we have similar articles in our treaties with France, the United Netherlands, Sweden, and Prussia; that it is common in most of the mo­dern treaties, and especially was of late inserted in the treaty between France and Great Britain; at least, it behoves those who make the objections, to show in what consists our power to compel a nation to trade with us, on terms by which we shall impose heavier duties on her trade, than we do on others, while she imposes no heavier duties on us, than she does on others. In general terms, it has been said, that the treaty was not re­ciprocal —here is an objection, that it is reciprocal.

No. II.
[CONTINUED FROM PAGE 17.] To the President of the United States of America.

IT is respectfully conceived, that there are few points of objection to the treaty, which require a more dispassionate and full examination, than that which turns upon the omitted compensation for the negroes taken away in 1783. It is not pertinent to urge, as hath been done, in favor of an erroneous construction of the treaty of peace, that there is, strictly speak­ing, no property in men. It is very unhappy, indeed, but it is also true, that the census of 1791 proves the existence of such property, as well in the eastern and middle, as in the southern states; and that the laws of both the contracting nations, still continue to maintain this property in men, in many parts of their respective dominions. Were a general manumission in­stantly to take place, the ablest friends of the treaty will can­didly acknowledge, that political order, the best result of hu­man wisdom and virtue, would, for a long time, be banished from our land.

Thus much has been said upon this point, because suggestions of a local aspect, and calculated to beget heat and to excite prejudices (which, though truly amiable, are unfavorable to fair discussion) have been occasionally made by writers on the treaty.

It is understood, that the British government have formerly, or recently urged the following objections to our allegations, that they first infringed the treaty of peace by carrying away the negroes from New-York.

1st. They have observed, as it is said, that it was an evident misconstruction of the treaty, and might even be deemed offen­sive to them, to say that they had stipulated to commit such a breach of faith, as their delivering up to slavery, men, who had been induced among them by promises of protection and freedom.

[Page 76] 2dly. That the negroes were property in America; that a part of them were taken in war by the British troops and were consequently "booty" to them, and no longer the property of the American inhabitants; that the words of the stipulation are, "Negroes and other property of the American inhabitants."

3dly. That another part of the negroes had come within their lines, and were to be considered "as strays."

4thly. That the article concerning the negroes in the treaty of peace, might refer and apply to those negroes which be­longed to the American inhabitants within the British lines.

In considering these answers, which, it is sincerely meant, sir, to state fairly, a great inconsistency occurs between the first and third reason. In the first reason it is alleged, that the negroes were induced (i. e. led) within the British lines; that is, that they went thither for an object aforethought; for an object promised to them, for an object previously desired by them, for an object, which was so well understood between the parties, that it could not be taken away, consistently with the maxi [...]s of one of them, concerning morals, faith, and policy. But in the third reason, it is alleged, that some of the negroes were as "strays" in the British camps and lines, though induced ( led or attracted) thither by the strongest allurements and in­fluences, though free human agents, at least, in that particular; possessing intellectual minds, knowing the places from which and through which they went, and whither, on reflection, they intended to go and did go, and at which places of destination, they accordingly stopt, and demanded the objects, for which they purposely went thither, and that, too, upon the faith of pro­mises of the British commanders, which they had heard be­fore they left the places from which they are alleged to have "strayed."

But further, if any part of the negroes were "strays" they were not "booty" taken in war by an enemy. Consequently the property of the American inhabitants was not changed by capture. No capture had taken place, and they ought not to have been carried away from their owners. All such negroes must have come within the words used, which are, " any ne­groes or other property of the American inhabitants." Moreover as the restoration of strays, on paying charges, is dictated no less by common honesty and custom, than by the treaty, it was but a small concession to that spirit of justice, friendship, and liberality, which was mutually professed at the settlement of peace.

The 4th reason will appear to be quite unfound. The article concerning the negroes was manifestly intended to restrain the [Page 77]British forces from taking away certain objects. This could not have been proposed by the British commissioner, but, indeed, required some delicacy to be brought forward by the American commissioners, as it might convey an imputation or suspicion of plunder against the British troops. It is material, sir, that the mind should be satisfied, that this article was demanded on the part of the United States, because it must be clear that the American commissioners could not have meant by it, to bring forward a stipulation to preserve the property of the ob­noxious American inhabitants, who were found within the British lines. It is equally clear, that the British commissioner could not but consider it as an insult to him and his nation, if the Ameri­can commissioners had required a formal promise, that their gene­rals and admirals should not despoil the unfortunate people within their lines (in the moment of leaving them) of their negroes and other property. There is much solicitude for the loyalists, manifested by the British government in the old treaty, but not for the negroes. A kind disposition to them probably was not at all wanting; but in the variety and importance of other objects, they may have been overlooked by the British commissioner at Paris. The first attraction of attention to the situation of these negroes has probably been in New-York, where the promises of the generals and admirals, and of the officers commanding the black corps, brought the case personally home to some of them, and the negroes themselves would prove strong, though simple, remonstrants against the measure. Their case was seri­ous and hard, and it was humane and prudent to let them go, under the idea of a compensation in money.

If it appears satisfactorily reasonable, that the article in question, of the treaty of peace, could not be particularly in­tended to prevent the British from carrying away the negroes belonging to the people within their lines, then it will follow, that the stipulation could have no meaning at all, unless it ap­plied to those who had left their master's houses without the lines, and repaired to the British camps, or were picked up in the course of their marches: That is, the stipulation could have only applied to those claimed by our government in all its de­partments and in every stage of our affairs. It is held to be conclusive against any construction of a treaty, that such con­struction involves "an absurdity;" and surely it is perfectly irrational to make a solemn stipulation, which has no object to which it can apply or refer.

The words, "any negroes", are very explicit, and do not carry the idea of property at all. It was the duty of the British commissioner to have proposed a clear and definite exception [Page 78]of any portion of them to which he thought they had acquir­ed a title. Not doing so, we have a right to the broad mean­ing of the word "any" The United States might consider the negroes in two divisions, one part as taken in war, and another part (the greatest) as going voluntarily into the British lines. The property in the latter was not altered or affected by capture. They were, by the laws, "runaways." The master's legal right was not impaired. The words, " any negroes," would include both descriptions, and the subsequent words, "other property," might follow, as a part, at least, of the negroes con­tinued the property of American owners. Moreover; some of the negroes were taken upon the high seas, and upon the bays of Chesapeake and Charleston; and, since the most strict ideas drawn from the laws of property and war are recurred to, it may be fair to say, that the property in them could not be changed, until after a regular trial and condemnation in a court of admiralty in each case. This was done by the American privateer-owners, when they took negroes in their prizes, and was wanting, no doubt, in many cases in New-York. Those negroes remained, therefore, the property of the American in­habitants.

When an expression, in so solemn and important an instru­ment as a treaty, is constructed and inserted in the utmost la­titude (as " any negroes") it is dangerous to truth, to the har­mony of the contracting parties and to their peace, to narrow it down by inferences from subsequent words. A slight relative inaccuracy in a following expression may destroy the meaning, utility, and effect of language, the most clear and unequivocal. In the instance before us, sir, this really appears to be the case. The words "other property" are made, by Great Britain, to narrow unduly the preceding words. Taking in all that has happened and all that was talked over, the passage might have been fairly construed thus: all captured and runaway negroes and property of the American inhabitants.

The conduct of this government, at the moment of the fact, was attended with unanimity, was decided, and clear. Two opinions were not entertained upon the subject. A very able friend of the pending treaty (Mr. Hamilton, of New York) moved a resolution on the 23d May 1783, in his place in con­gress, "that a considerable number of negroes, belonging to the citizens of these states, have been carried off contrary to the true intent and meaning of the said (preliminary) articles." This motion was seconded by Mr. Izard (of South Carolina) and carried without a division. Consequent measures were, at [Page 79]the same time, adopted by congress to obtain satisfaction from the British government.

Your own opinions and convictions, sir, on this point, at that time, are generally understood to have been decided, that the carrying away the negroes, as it was done, was an infrac­tion of the treaty. Your own memory, sir, your correspondence with congress and with the British commanders, and your in­structions to Mr. Benson, Lieutenant-colonel Smith, and Mr. Parker, the American commissioners, place within your power the sure means of ascertaining the ideas you entertained upon the subject.

From the three unsuccessful motions in the senate, made by Mr. Burr, Mr. Tanewell, and Mr. Gunn, which severally had for their object further amicable negociation for the value of the negroes, and for one or the other of which three mo­tions every member of the senate (except, it is believed, two who were sick) voted, it may be considered as the unanimous opinion of the senate, that this claim was not placed by the treaty, upon a just and satisfactory footing. But, sir, the circumstances preced­ing the treaty of peace, throw considerable light upon the tr [...] meaning of the article relative to the negroes. It appears from the extracts and minutes in Mr. Jefferson's "Papers relative to Great Britain," ^* which accompanied your message to congress, of the 5th of December, 1793, that the American commission­ers at Paris, in 1782, had held up to the British commissioner, general claims for negroes and other property carried away in the course of the war from the several seaports, which had been occupied, as posts, by the British forces. It appears, that the retrospective claim was not u [...]imurely admitted into the tr [...] ­ty; but this discussion with Mr. Oswald will go far so convince an impartial judgment, that his ideas in the stipulation against the further carrying away of negroes and other property, wer [...] that no removal of the black people, who had not been [...]man [...] ­pated by the American inhabitants, was to be permitted by the British commanders, in the intended evacuation of New-York, wherein it was well known to both parties, that great num­bers were collected. Had this been refused by the British com­missioner, without an offer of their value, it is easy to pe [...] ­ceive, that the American commissioners would not have agreed to remove the lawful impediments to the recovering of the British debts. The United States would profit by a rigid ad­herence to strictly legal ideas in the treaty of peace, because all debts legally extinguished, had so completely ceased to be [Page 80] debts, that the fifth article could not apply to them. These were many.

But, sir, the propriety of the British commanders holding the negroes taken on land as "booty," admits of some obser­vation. Civilized nations do not now deem it proper, that their forces should take as booty, the property of private persons, not actually sound in arms. It is not at all uncommon to pay individuals for horses, forage, fuel and provisions. The shock­ing effects of the principle of "booty," have been commuted for the more humane measure of contribution. The war was of a peculiar character and nature; and for that and other reasons, it was not to be expected, that, in the moment of re­conciliation, Great Britain was to lose sight of these ideas, nor that the would be governed by summum jus, in her stipulations with the United States. Her agreement not to carry away any more negroes, was a measure consistent with "the liberal, manly, and candid manner" in which Mr. Oswald is declared, by Mr. Adams, Doctor Franklin, and Mr. Jay, to "have con­ducted the negociations for peace." It appears reasonable to sup­pose, that a commissioner, so characterized, would be desirous to remove from the final act of amicable separation, to which both parties had agreed, every thing which might wound the American feelings, or keep alive the painful sensibilities, which had resulted from the immense destruction of an invasive war. He well knew, that the American commissioners had represent­ed the parts of this country which owed money to Great Bri­tain, as in some degree incapacitated from paying their debts, by the loss of the negroes, which had already been taken away: and though he might be averse to admit the large schedule of losses of which the negroes, previously removed, formed a great part, he might naturally compromise the claim for the past and for the pending, by agreeing in the most latitudinary terms and ideas, that the troops of his nation should inoffensively and harmlessly depart without carrying away " any negroes or other property of the American inhabitants." Upon critical re­flection, it will be perceived that this expression is not entirely wrong, though inaccurate, seeing that there was one descrip­tion of the general mass of negroes to be left, who are now admitted to be property by both parties: namely, those belong­ing to the inhabitants within the lines.

Writers upon the interpretation of treaties may be properly con­sulted upon this subject. They justly admit us to reason from the general views of the contracting parties. These have been al­ready noticed in the preceding detail, and it is hoped, sir, that the length and particularity of the statement will be excused on [Page 81]account of the great importance of the facts, as evidences of the highly probable or real views of the parties.

It is another rule of interpretation, that when late excep­tions are made, by a promising party, to the most extensive meaning of the words used, he may be reminded, that he ought, at the time, to have modified the promise, by altering the expression. " Any negroes," including all without excep­tion, the party promising cannot now narrow the meaning of those words, by suggestions from his own mind or by calling in a subsequent expression to limit the right of the United States.

It is also a rule, that neither party has a right to interpret. a treaty as he pleases. So that differing in their ideas, as the two governments do, the United States have a right to some equal mode of settling the claim. Two feigned cases, one to be tried in the highest court of each country, and to determine the matter in favor of that party which might prove successful in both, are suggested with deference and some doubt. If the courts differed in their decrees, we should be, at least, as well as we are. Commissioners, with all the lights derived from the two hearings, might then terminate the matter. Now Great Britain prescribes the sense of the article contrary to our ideas, and, of course, contrary to rule. (See Vattel, book 2. ch. 7.)

It is to be remembered, that the rules of interpretation, laid down in the law of nations, are considered as binding upon all reasonable governments.

It has already been remarked, that every interpretation, which leads to absurdity, is to be rejected. On this rule, it may be further observed, that it would be really absurd to suppose, that the British commissioner meant to avoid injury to the raisers of our produce, or that the American commissioners meant to save the planters and farmers from being incapacitated from paying their debts, by restraining the carrying away of the few domestic slaves belonging to the people, residing in New-York.

Proposing to continue the examination of this very import­ant point in a future paper, I have the honor to subscribe my­self, with unfeigned and perfect respect,

No. III.

IT is proposed, sir, respectfully to offer to you, in this paper, some further reflections upon the article, in the treaty of peace with Great Britain, relative to the negroes.

It appears to be fair, in the construction of the treaty, to consider what would have been the effect of reasoning, similar to that opposed to the United States, if resorted to in constru­ing other parts of the same instrument. The American artillery was, by the same article, to be left in all the evacuated fortifica­tions. Let us suppose, as was indeed really the case, that the cannon, originally belonging to all the fortifications in America, had been cast in Europe. It might have been urged, that these were never American in one sense, and in another sense, that they had ceased to be American, having become British by cap­ture. Then the article about American artillery would have be­come absurd, for it would have been a formal stipulation, with­out any object, to which it could apply. This case is very strong, because the artillery appurtenant (in the strict legal and orthographical sense of that word) to the fortifications, was originally the property of the old royal government, had been assumed, with the powers of government, by the people, had been thus acquired, by those who were one party to the treaty, by force, and had been taken in battle after the declaration of the independency of the United States, from the armies of that sovereign body politic by the armies of the other sovereign body politic, in the course of an existing and known war; the said artillery being instruments of war belonging to the adverse power, and not private property appertenant, by its nature, to agriculture and menial household service.

In like manner, the same article and sentence of the treaty of peace obligate Great Britain to restore and deliver all archives, records, deeds, and papers, belonging to any of the states or to their citizens, unto the proper states and persons to whom "they belong;" and this is accompanied with a declaration, that it shall be so done, although the said objects, so stipulated to be delivered, may have been, and were, acquired during the course of the war. Here we perceive, that the objects of the stipula­tion are considered as belonging to those from whom they were previously acquired in the course of the war. If the names and nature of the articles were different, it still will appear, that no precise distinctions against the proper or owning rights or claims of the Americans were meant to be set up. Had the arguments, or distinction now used against the United States, been at all [Page 83]contemplated by Mr. Oswald, he would not, in the same sen­tence, have expressly stated other objects, acquired by his na­tion in war, "to belong" to the American states and private persons.

The reasonings, in the books upon the law of nations, in regard to booty, have been generally applied to clearly personal property of alien enemies, taken by the army of one country in its marches, battles, sieges, and assaults, from the citizens of the other country. There is an absolute and undeniable pecu­liarity in the object in question, and in the manner and circum­stances by which the British troops acquired it, constituting a real difference between it and either the ordinary objects of "booty," on the one hand, or the manner of making "booty" on the other, as contemplated and allowed by the military arti­cles in the law of nations. The difference in quality between this and every description of personal property whatever, is manifest and great. And although this fact places the American interest, in the present question, in a most painful light, yet this disagreeable circumstance cannot impair the stipulations of a treaty between two powers, both actually maintaining and ac­knowledging, at the time of the contract and ever since, the force of those laws, which relate to the object.—Laws coun­tenanced by the one, as a parent, in the infancy of the other—laws, which, ere the manhood of the United States was ac­knowledged by the parent country, they had marked with a de­termined hand and a sincere heart, for gradual abolition and extinction.

Such and so great is the difference between this species of property and all others, that we must apply to it, with propor­tionate circumspection and candor, all the ordinary rules and reasonings about the subject of "booty," of war.

But if there should be found a great difference between this and the objects of military booty, creating reasonable doubts, whether it can be completely subjected to the rules concerning booty, the difference, in regard to the manner of acquiring ordinary military booty and that of acquiring this object, is much more considerable and important. It was not by force of arms, nor by stratagem, nor by surprize, nor by the ordinary and allowed operations of enemies, but it was by sending to places to which arms or military stratagem or enterprize were not ex­tended, and there openly loosening the bands and laws of that civil society, which had been established by the British and American—by the party attracting it, and by the party de­prived of it. It is also to be remembered, that those bands and [Page 84]laws of society then were, and still are existing unimpaired in the dominions of the party so acquiring it.

There are methods of obtaining the possession of the pro­perty of an alien enemy, which would render the property so acquired, not "booty of war." For example; a military officer of one nation remaining for a time within a town of an hostile nation, under the sanction of a passport and flag, carries off the whole military chest of the enemy of his nation: or, a detachment of the troops of one nation, obtain the military chest of their enemy, from its escorting party, solely and con­fessedly by means prohibited by the laws of war. Will property acquired in these ways be considered, as "booty" of war? Or will it be considered as the acquisition of irregular individuals, by no means to be retained by the acquirers, but to be restored to the owner, particularly so far as it shall be possessed at the moment of reconciliation and peace? The acquisition of [...]meri­can property, by offers of emancipation, is believe first to have taken place under the governor of Virginia before the declaration of independence, who probably under a dangerously incorrect idea of the power of maintaining martial law, went into the distinct and very different operation of an attempt to effectuate, by his proclamation, the annihilation of a legal property, of great aggregate value. When a practice has been commenced by one in very considerable station, it is too often followed by others, without due enquiry into its legality and propriety.

The governor of Virginia was not a person, on several score [...], who might be expected cautiously to settle new and nice mat­ters, upon grounds perfectly and absolutely correct, in the outset of a warm and distracting civil contest, which it then was. At the present time, no prerogative or power, founded in common or statute law, occurs to recollection, by which the chief executive magistrate of Great Britain, or of a Bri­tish colony (without the rest of the legislature) could abolish any right of property existing within his jurisdiction, and that without indictment, information or conviction of crime: much less could he destroy the existing legal relation between any two of those classes, who form, together with others, the body of members of the civil society. Persons legally bound to others for a term of years, or for a longer time, could not solely by his executive power, be released therefrom. It is a measure which may be dispassionately affirmed to destroy the bands of the society—a measure which the legislature only (if that [...] effect—a measure, as it should appear to reason, no [...] pract [...]ure in peace, no [...] a [...]owa [...]e in war, and ab­stained [Page 85]from by most of the British governors of that time, the pain of which, and part of the injuries of which, the stipulation of the treaty of peace was well calculated to re­move. There are very few, indeed, it is believed, sir, of the wise and good of either country, but what now sincerely wish, that the measure of thus calling forth the unhappy blacks, had never been resorted to.

A brief and simple remark, sir, aptly follows the preceding exa­mination of the strict legal ground on which the object in question stood, as property or not property: That, as the Bri­tish commissioner first used words of promise, including all the negroes, and as he afterwards follows with the words "other property," he must have considered all the negroes as property, notwithstanding the changes of situation, which they had un­dergone. It does not appear, by the notes of the American commissioners, that he ever opposed to their complaints or re­presentations about the negroes carried away, in the several preceding years, that they had been, or, indeed, that those remaining were, legal booty of war, and not objects for com­pensation. The reason of a stipulation, that is, the motive which led to the making of it, and the end then proposed, is considered, and justly, as one of the most certain means of establishing the true sense; and great attention, says Vattel, ought to be paid to it, whenever it is required to explain an obscure, equivocal, and undetermined point, either of a law, or of a treaty, or to make application of them to a particular case. We are not left, in this case, to vague conjectures. The injuries which one party had sustained, by the attracting and carrying away of numbers of negroes by the other party, the bitterness of spirit it had occasioned, and the desire to prevent such injuries, which could no longer wound an enemy, on account of the return of peace, and which would have gone far to banish the necessary spirit of reconciliation, rendered it a matter of found sense and reasonable business, to exclude rigid ideas about compara­tively inconsiderable objects of property, useless to the British government, and to deliver up all the negroes, to which no private British claim was made. The difficulty of the faith pledged to the negroes, absent and unrepresented, was very probably overlooked, amidst the many and great objects which were to be adjusted. And here it may be observed, that, if Great Britain had promised an impossibility, which promise might have taken place, an equitable compensation, or the re­linquishment of the consideration promised therefor by the United States, ought to have settled the matter. It will appear, from the papers of the time, to every person, who has faith in [Page 86]the truth of Mr. Adams, Dr. Franklin, Mr. Jay, or Mr. Lau­rens, that this consideration was, the removal of the legal im­pediments to the recovery of the British debts. Leave us these descriptions of our property, and take you those, was the na­tural language: the quid pro quo. The American commissioners agreed to every article to which their conceptions of their pow­ers extended. And here it is very material, indeed, to observe, that, if the course of the business and the communications be­tween the American and British commissioners had not effectually and accurately fixed the design of the stipulation, it is wisely per­mitted by the law of nations, in order to promote the peace of mankind, to conjecture the meaning of the parties. Now no sug­gestion or conjecture, as to the object on which the stipulation could operate, is offered, except that the offended American commissioners may have thereby meant to require Great Bri­tain to engage, that she would not despoil the unfortunate peo­ple within their lines, at the moment when she was leaving them to undergo serious difficulties, on account of their being found in that situation. This construction, perfectly odious as it regards Great Britain, the rules of interpretation of the law of nations, forbid. To the objection drawn from the odium, in which the necessity to ask of them such a stipulation would have involved the British, is to be added the objection, strong in­deed in my judgment, that the American commissioners would not demand a stipulation, exclusively in favor of those with whom they were very highly offended, and omit to secure a great mass of property, much of it belonging to those political friends with whom they had gone through the war, and whose case was particularly recommended to them by congress.

It will be just remarked here, that the stipulation does not say, the negroes and other property, but any negroes, or other pro­perty. In a general view, the words, the negroes and other pro­perty, would appear to be more nearly and accurately relative, than the words, any negroes or other property. The word "other," placed as it is, has rather the appearance of a casual incor­rectness, than as intended to limit the sense of the broadest possible words, which precede it, viz. "any negroes," leaving us room to believe, that Mr. Oswald did not make doubts or difficulties concerning the ideas of property or ownership, notwithstanding all the circumstances which the negroes might have undergone. It must be admitted, too, that the British idea of the interpretation does not free the word "other" from incorrectness. For "any," taken alone, will include slaves, and free and indented negroes, and yet "other," followed by "pro­perty," does, in their sense, include only one description, being a [Page 87]very small proportion of the whole number of the negroes. This may appear like wire-drawing the subject; but such appear­ances are inevitable, in cases involving verbal criticism.

Another, and great, difficulty would result from not extending the stipulation beyond the slaves of persons within the British lines. Peace being concluded, their negroes could not be re­moved, whether British or American property; so that, as to them, the stipulation was, in a second view, unnecessary. There would, therefore, be no object, on which the stipulation could operate. The rules for interpreting the law of nations, it is be­lieved, do not permit any subsequent words to be so construed, as to render a preceding stipulation or entire provision null and void.

It appears not improper to remark, that one party cannot reasonably plead, that a thing is odious, which he has contri­buted to create in the country or conduct of the other party, and which is continued to be maintained by law in his own do­minions. To enslave men is, indeed, in every view an offensive and disagreeable business; but in the sense of an odious stipulation under the law of nations, any power which maintains by law the purchase of men, never before slaves, and transports them from their connections, cannot plead, that a stipulation could not be intended in a certain sense, because it might make them return men, set free, back into slavery. It is not here meant to insinuate the slightest reproach to Great Britain on this subject. It is confidently believed, that she will steadily pursue a safe and suitable plan of abolishing the slave trade, and slavery itself, throughout her dominions. In regard to the odiousness of the breach of faith, it has been already observed, that it is probable the particular situations of all the negroes were not adverted to. No faithless intention towards them is believed to have existed in the British government or commissi­oner. The United States did not long insist upon a specific performance of the stipulation. There is no reason, therefore, to doubt, that they would have cheerfully acquiesced in an equita­ble compensation, instantly upon its being desired; and nothing but compensation is now possible. When a stipulation is made by an agent, employed as Mr. Oswald was, on a sudden, a very able merchant, but not a lawyer, nor versed in diplo­matic business, distant from the scene to which the negociation relates, and, consequently, not impressed with every minute circumstance, that had occurred in the operations of the two powers, in a distant country, it is not unnatural to suppose, that he might have contracted for an unobserved point or two, which could not with propriety be complied with, on account [Page 88]of engagements to which he did not advert, or even on account of the impossibility of performance. If the matter stipulated were ever so unfavorable (and in that sense odious) or if it were impossible, the right of the other party in a clear case, to have the unfavorable or (as the law of nations terms it) the odious stipulation executed, or the impossible one compensated, would be in full force. The United States, waving the execu­tion of the odious inadvertent stipulation from a becoming re­spect to the feelings and honor of the other party, evidences an accommodating disposition, to settle the matter by equitable compensation.

Several important observations, on this point, of some length, yet remaining, I conclude for the present, with assurances of the sincere and perfect respect, with which

No. IV.

IT has been observed by an able writer (under the signature of Camillus) who favors a ratification of the treaty, without any further amendments, that negroes, by the laws of the states, in which slavery is allowed, are personal property. He, therefore, argues, that, like horses and cattle, and other move­ables, they were liable to become "booty." But, sir, this opi­nion of Camillus, though on a point cardinally important to the argument, if against him, appears to be incorrect. In Virginia, negroes did not go to the executors of the deceased, but passed, by the laws, with lands and other real estate, by descent, to the heir at law. They were also subject to the same laws of dower as real estate. They were likewise capable of being entailed, ac­cording to the laws concerning real estate. This situation of the laws, was in that very quarter, wherein the British governor, alluded to above, commenced that executive infringement of them, which has formed the unsound foundation of the opinion, that the blacks could be so attracted or induced from home, as to become "booty of war." It is very important to this argument, that above half the slaves, in the late American provinces, be­longed to the people of Virginia, where the foregoing state of law prevailed.

[Page 89] It is not only clear, that a conciliating mind, like Mr. Os­wald's, must have considered it as highly eligible for Great Bri­tain, so to conduct the act of separation from this country, as to leave no cause of dissatisfaction on account of so irritating a matter as spoil; but it is certain, that in his transactions with the United States, he must have considered them as part of the British empire, resisting its general government, and not as an alien enemy. This must have been his notion of the matter; for the parliament in 1782, held it necessary formally to autho­rize the executive power, to acknowledge the future existence of this country, as a distinct political sovereignty: and his mission was founded on that act of the parliament. Moreover, congress considered this unrelinquished pretension, as so im­portant and proper an idea for them to provide against, that about the same time they resolved, that such an acknowledg­ment, ought to precede a negociation. From these facts on both sides, it is clear, that the two parties, even while opposed in arms, were not precisely in the situation of two alien hostile powers, different from, and unconnected with, each other, de jure, de lege, and de facto. Before the declaration of indepen­dence, the laws of war had but a certain extent of operation, on account of the municipal laws: and it is important to ob­serve, that Great Britain, to the last hour of the war, strictly adhered to this idea in her deportment towards the United States and to foreign nations, who aided them. Wherefore, as she had some considerable advantages in the contest, from that principle, she cannot regularly set it aside, in order to apply the laws of "booty" of war, to this property of the other party, which was not acquired by military means. It has been observ­ed, that she did not deliver up ships in consequence of the treaty, and no doubt this very principle, constituted a part of her reasons; she, considering the vessels of the United States as condemnable for breaches of the statutes passed by her parlia­ment, to shut the American ports and prohibit intercourse. Private ships and cargoes were constantly condemned on the ground of those municipal laws, or the laws of the empire, as she held them, and not upon the laws of war and of nations.

Here it appears necessary, to notice by the way, an inad­vertent, but material incorrectness in a writer on the treaty, wherein ships are mentioned as the only species of property, which does not become booty to an enemy, by the mere capture or acquiring of possession. It cannot be doubted, that all pro­perty whatever composing the cargoes of ships, all money and baggage of passengers, all passenger slaves, being the servants of passengers or of the ship's officers, and all slaves who are mari­ners [Page 90]or a part of the crew of the ship, must be libelled and condemned, in a court of admiralty, and cannot be held by the laws of booty. There is one description of property, which has never yet been seized or retained by any civilized power, whe­ther taken by land or sea; and that is, servants or apprentices, bound for terms of years. Yet Lord Dunmore's proclamation is believed to have extended to bound white persons. It would be particularly painful and inconvenient to Great Britain, and espe­cially on the breaking out of a war, if the time of service of the numerous apprentices on board her private ships, which terms of time are the fair and actual property of their masters, should be libelled in the courts of admiralty, of a foreign country, and decreed to be the lawful property of the captors. This may place in a clearer light, the mighty evils which may be induced by de­stroying the legal relations, subsisting between persons in the same civil society, by a military proclamation, resorted to by the ex­ecutive power in a domestic quarrel, or by a foreign enemy in an ordinary war. To take apprentices and bound servants on land, and to make the right of their time of service "booty" of war, would extend the evil, though it accords with the principle of the British proclamation. To transmit such procla­mations into countries remote from the reach of arms, offering freedom from their indentures, to all such servants and appren­tices, as should leave their masters' houses, thereby dissolving the bands of society, and the existing municipal laws of pro­perty, would lead, in a few years, to modes of warfare, which would immensely increase its dreadful calamities.

There existed formerly in the kingdom of Great Britain it­self, a description of slaves, well known to lawyers by the name of Villeins. These slaves were subject to the laws of real estates, and not to the rules of distribution concerning personal pro­perty. They were included among the hereditaments of that day. This is conceived to be an important circumstance to dis­countenance the general soundness of the idea, that a British commissioner could reasonably deem slaves to be personal pro­perty.

The conduct of sovereigns holding slave countries, may be considered as important on this subject. In the numerous and frequent wars between the European nations, having West India colonies, the measure of emancipating the blacks had never been adopted, as a proper and justisiable mode of war­fare. It is not irrelative to this argument to remark, that Mr. Oswald was a grea [...] West India merchant, and he may have remembered, that the blacks, in the conquered and restored islands, always followed the lands, and were also restored.

[Page 91] Further: A circustance of great importance indeed to Great Britain and her slave colonies, in relation to this very descrip­tion of property, was pending during the time of the American negociation at Paris. A number of valuable West India islands had been taken by the French from the British in and between the years. 1778 and 1782. These were, St. Kitts, Grenada, the Grenadines, St. Vincents, Tobago, Dominica, Nevis and Mont­serat. To these may be added, New Providence and the Baha­mas, taken by Spain. Many of the slaves on those islands, by the arguments offered against the United States, were "booty." Their case was that of capture before the capitulations or with­out a capitulation, in ordinary war between two distinct sove­reigns, not commenced by an unlawful attempt to abolish a legal interest by an act of a secondary executive magistrate, and continued by military commanders and others, infringing the legislative jurisdiction, if their jurisdiction extended to such an act for the consideration moving thereto. It is possible, that the apprehension of so embarrassing a difficulty, and so deep an injury to the British West India islands, which were to be restored, may have contributed to influence the British com­missioner to be silent about impediments to the American claim to "ary" of the negroes. Certain it is, that Great Britain de­rived extensive advantages from the circumstance of the negroes on the restored islands, not being considered as booty; and equally certain it is, and highly meriting the candid considera­tion of Great Britain, as to the past and future, that the deeply indebted planters of those islands, could not have paid their debts to their British creditors, had considerable numbers of their negroes been kept from them upon the plea, that they were booty to the armies of France.

It is of very great importance to this American claim, and to the argument in favor of the United States, that the laws ex­isting in regard to the whole body of the negro slaves belong­ing to Great Britain, at the time of the preliminary treaty of peace, considered them in the light of real estate. They de­scended with the lands to the heir, and were subject to the laws of dower, as lands. They were not put on the same footing as personal property. The laws of Jamaica, Antigua, and Barba­does, are here referred to. Those islands were the greatest and most respectable British West India colonies, having, by accre­dited accounts, in 1782, near 300, 000 slaves. It is to be ob­served, that of all the West India islands, those three alone, remained to Great Britain on the 20th November, 1782; all the rest and the Florida slave colonies, were taken by the French and Spaniards. The captured islands were returned in the ordi­nary [Page 92]general terms; and in numerous instances, the question of slaves being booty, and the right of carrying the slaves away, might have been raised by the French and Spaniards, upon the principles now urged by Great Britain, against the United States.

It is likewise of some consequence on this subject, that the French colonial laws, which were founded on the customs of the city of Paris, contemplated this new description of property, in certain respects, with some of the ideas attached to immove­able property. The plantations and negroes thereon, of persons dying intestate, vested in the heirs, and could not be sold during their minority. But the goods and chattels (as we call them) could be sold. It is also understood, that they were distinguished by the laws concerning dower, settlements, and the return of estates of persons, dying without issue, to the source, from which they came to the deceased.

Some ideas concerning the right of poslliminium appear to have an important relation to this case. Upon the foundation of that right, the Roman law (the parent stock of the civil law and law of nations) treated slaves, taken in war, in a manner op­posite to that in which things, now called personal property, were treated. They were not subject to the rules of booty, which worked a change of property by the mere acquiring of possession, as is the case with respect to those things at pre­sent termed goods and chattels; but slaves were returned, like real estates, contrary to those rules, to their former own­ers, on a pacification. This idea in the ancient law of nations (with the laws of villeinage) has no doubt had some influence in fixing the practice of leaving the proprietors of the captured West India islands in possession of their slaves, in all cases wherein their lands were not confiscated. Although the islands of. Grenada and the Grenadines were conquered, without a capitulation, by France, in 1778, no pretence was set up by the French on returning those islands at the peace of 1783, according to the treaty, that the slaves were retainable and might be carried away by them as "booty" of war, because not included in the words, which returned the territory. The posi­tion, that the property in a captured slave remains to an owner, so as to give a sufficient foundation to claim him in case he shall be in the first owner's country at the close of the war, re­ceives the greatest countenance from the ancient law of nations, and from the recent proceedings thereunder between Great Britain and her ordinary enemies. Wherefore, it seems that the proclamation of Lord Dunmore is as destitute of support from [Page 93] [...]he law of nations, and the practice thereon, as from the mu­nicipal statutes of his former government.

There still exist, unhappily, throughout the world, too many instances of perpetual and hereditary slavery. No quarter of the globe is entirely free from it. Whatever may be the virtuous dis­positions of many individuals and of several nations, it is evi­dent, that this painful practice cannot be ended in a day; nor would too sudden an abolition promote the comfort of those unhappy men. While it is permitted to continue, it will add infinitely to the misery of slaves, if they are to be considered hereafter, like the cattle on a farm, as capable of becoming booty in war; and it must subject to distraction and utter ruin, all those vulnerable and defenceless islands and colonies, in which these unhappy people form a large majority of the popu­lation.

On a calm review of the grounds of this American claim upon Great Britain, it will appear, that the acquisition of the blacks by the British forces was commenced and largely exe­cuted by an unprecedented act of a civil governor, contrary to the laws of the land by which he was bound; that it was conti­nued by unprecedented acts of the British military commanders, contrary to the law and usage of notions, by which they were bound—that any description of property thus irregularly ac­quired against the municipal law and the law of nations, could neither have been rendered the property of the acquirers, nor capable of being disposed of by them, nor capable of being retained by them; but that it ought to have been restored by them, even if it were, strictly speaking, personal property; and that consequently, had it been indisputably of that descrip­tion, it could not have been carried away, because of the manner in which it was obtained. It will also appear, that a majority of the description of property in question was held, in the United States, as real and inheritable estate, consequently not subject to the laws of booty; that this was particularly the case throughout the whole of the late jurisdiction of the earl of Dunmore; that the ancient law of England made the villein or English slave likewise inheritable estate, and passed him like the lands; that the laws of all the remaining. British West India islands in 1782, contemplated the negroes as real estate; that the French colonial laws considered them, in several very im­portant particulars, like immoveable property; that the ancient Romans held them to be, like lands, within the laws of postlimi­nium, in opposition to the rules concerning "booty" in war; that the prescriptive law of nations, as established by the practice of Great Britain, France, Spain, &c. restored them after war, as [Page 94]and with real estates, not only in capitulating islands, conquered from each other, but even, as in the case of Grenada and the Grenadines, in islands conquered unconditionally, or without capi­tulation; that therefore, by those general pre-established rules, both written and prescriptive, which bound the French not to carry away the negroes from the restored British islands, especially from Grenada and the Grenadines, the British were bound not to carry away from the United States any negroes, which were acquired from the Americans, even if nothing had been said of negroes of other property in the treaty of peace.

It is moreover hoped, sir, that it has been made to appear to have been the real intention and meaning of both parties to the treaty of peace, that no negroes should be carried away. This is evidenced, it is conceived, by the representations, before and at the moment, of the American commissioners, and by the omission of counter representations, and the consequently implied acquiescence of the British commissioner; likewise by the words of the treaty itself in regard to the negroes, fairly construed and interpreted by the rules drawn from reason and the law of nations, and supported by similar provisions, concern­ing the American artillery, archives, papers, &c. and lastly, this idea of the meaning of the parties appears to be rendered necessary and inevitable by the impossibility of finding any other meaning, which either party could think it useful or proper to make the subject matter of a stipulation.

How far this measure of the British commanders, if really contrary to the law of nations and to the treaty of peace, is the first fact of the nature of an infraction on either side, and how far it ought to be compensated, if it was an infraction of the law of nations or of the treaty, though it should prove not to have been the first breach of the treaty, remains to be consi­dered.

☞ THE publication of JURICOLA's Examination was dis­ [...]ontinued, when the ratification of the treaty was announced.

No. I.

IT was not difficult to foresee that the treaty with Great Bri­tain would excite much public discussion—It is only to be lamented, that the knowledge of it has been withheld so lon [...] that the investigation can now answer no other valuable pur­pose, than to bring the president acquainted with the sentime [...] of his fellow citizens. It was also easy to foresee, that the lead­ers of a certain party would strenuously advocate every article. No one, except themselves, augured any good from the miss [...] of Governor Jay. The joy they manifested upon the first new of a treaty, while its stipulations were a profound secret, [...] the arts which were practised, to make the public believe, that America had obtained complete redress, and that without [...] unreasonable concession on her part, evidenced a determin [...] to spare no pains to obtain its ratification. Those, however, [...] originally opposed the embassy, early predicted, that it w [...] terminate in a fruitless negociation, or in a treaty highly d [...] ­vantageous to this country. This sentiment was strengthen [...] what little transpired of the correspondence between L [...] Grenville and Mr. Jay. America saw with concern, a ci [...] who held one of the most dignified offices in her gift, addre [...] his majesty in the stile of a suppliant, and placing her sole r [...] ­ [...]ce on the magnanimity, justice, and benevolence of a mo­narch, whose conduct towards her had ever been marked [...] breach of faith, rapine, and cruelty. The treaty is at [...] arrived: the same influence which procured the embassy, [...] been industriously exerted to obtain its ratification. These e [...] have succeeded too well; twenty senators have agreed to all but one article. I shall make no reflection on these gentlemen, who for this purpose were a bare majority. But the manner in which the business was conducted, leaves too much room to fear, that the most important interests of our country have been sacrificed to gratify party zeal. It is, certainly, somewhat extraordinary, that long before the treaty was known, the vote of each of these gentlemen was reckoned upon with the utmost certainty.—It is not my intention to acquit those who oppose the treaty from their share of this baneful spirit.

The censure of many is accompanied with too much acri­mony. There is, however, another class, who will probably decide upon its merits: I mean the moderate men, and real patriots, who, scorning to be be led by others, will take th [...] [Page 119]trouble of judging for themselves. To persons of this descrip­tion, these remarks will be addressed. Previous to discussing the treaty itself, we must not pass unnoticed the mysterious secrecy which has inveloped a transaction of the last moment to the happiness and prosperity of America.—Is not this secrecy, alone, a proof that the senate conceived it disgraceful and pre­judicial to the United States? The public clamour which they saw would be excited, might have deferred them from the har­dy step of giving it their assent; whereas, they well knew, that if it was not divulged until ratified, many, who might have been violent in their opposition, would, as good citizens, submit to it as soon as it became the supreme law of the land. There might be a propriety in the secrecy observed by the presi­dent; but the senate ought to have afforded the public the same opportunity of judging of it, which they have of canvassing every bill in its passage towards a law. Instead of this, they take care that no part of it shall transpire, except the time limited for the surrendering the western posts, and that some kind of provision was made for indemnifying our merchants. Neither Governor Jay, nor the senate, were at any pains to conceal these points of the treaty, while they carefully with­held the sacrifices which were to be the price of those benefits. The senate, indeed, go further, and, as if afraid or ashamed of what they had done, enjoin their members, even after their act of ratification, not to make any part of it public; and Mr. Mason, who deserves the thanks of his country, is censured for disregarding an injunction, which was nugatory in its na­ture, and reflected no great honor on the legislature of a free people.

Another preliminary remark may be made here, as it will assist in forming a just estimate of this convention. It is this, the first impressions made by the perusal of it, were universally un­favorable; all men, and all ranks, united in condemning it— A gloom, co-extensive with its circulation, took place.—Those who were silent as to its defects, could not forbear to express a wish, that it had never been made, and readily agreed, that we should be much better without it. Had a petition immedi­ately been prepared to be presented to the president, against its ratification, nine merchants in ten would have signed it: and not a mechanic would have refused. When the people with one voice condemn a measure, of which they are competent judges, it furnishes a violent presumption against the expediency of it.

This general clamour, and discontent alarmed the envoy, and those, who had predetermined to support him. Recourse was had to their usual industry and arts. Some took their stand at the [Page 120]coffee houses, others ran about the streets; but notwithstanding their diligence, the most vigorous exertions and prudent con­duct on the part of its opponents, were necessary to prevent Mr. Jay's effigy and the fruits of his negociation from being consigned to the flames in one part of the city, ^* while the Bri­tish merchants were feasting him in another.

We come now to the treaty. The preamble itself, is not free from objection. The differences between the two countries are to be terminated "without reference to the merits of their complaints." This is surely an unprecedented mode of setting public or private controversies (especially in the time of peace) the merits of which should never be lost sight of, and ought [...] form the basis of a settlement. It is easy to see why Great Bri­tain wished to keep them out of sight.—Whoever reads the cor­respondence between Mr. Jefferson and Mr. Hammond, [...] admit, that the former has, in a satisfactory, candid, and ele­gant manner, answered every excuse made by the British, for their non-execution of the treaty of peace. The futility of one of her claims was so gross, that it needs only to be mentioned to receive our disapprobation: among other matters, Great Bri­tain [...]imed compensation for the estates of the loyalists, wh [...] had been confiscated during the war, and sold afterwards, Mr. Jefferson, in a course of reasoning which forces conviction, [...] is eminently the case with all the controversial performances [...] that great statesman, shows that those sales amounted to [...] in­fraction on our part. By the treaty, congress were only bo [...]d to recommend to the different states a restitution of confi [...] property. This recommendation was not binding upon the [...] they might comply with it or not, as they pleased. Indeed, congress, as he observes, could only recommend; and so was it understood by the British commissioners, as this matter under­went a very full discussion. Such, also, was the understanding of the British ministry and parliament—Thus it appears, that this claim was without foundation; and yet it was placed upon an equal footing, by this extraordinary preamble, with our demands for negroes wantonly stolen—ships most wickedly plun­dered—and a great extent of territory wrongfully detained.

No. II.

No. III.

No. IV.

No. V.

COTTON is low in the East Indies, but not of a good quality. It will not answer for importing, while we can have that of the West Indies and our own, the staple being too short for water spinning. White goods, with some gold and silver muslins, may be imported from Bombay and Calcutta, and some printed muslins from Madras; but the consumption of this country would not require three cargoes in a year, un­less we printed them. The French use many; but they import them to print, and vend them in Europe and the West Indies. Almost all white goods may be had on the Hoogley, just above Calcutta, at a place called Besunpoor, a Danish port, on lower terms than at Calcutta, also at Chandanagore, a French port, [Page 137]at the mouth of the Ganges. From the Isle of France we im­port coffee and indigo; they raise cotton, which, for the rea­sons above mentioned, is seldom imported, and because it answers better in China. Coffee answers well, as the price is lower and the quality better, than that from the West Indies. We export to that place, salted provisions, and some naval stores; and our vessels are frequently employed in carrying slaves and cattle, from Madagascar and the Main, for the use of that colony.

From this cursory view of our commerce with the East In­dies, it appears, that were we excluded altogether from the British settlements, we could obtain the same articles upon as easy or better terms, at other ports. This must be the reason, why Great Britain has so long permitted the trade in question; or perhaps a better one is, some immediate benefit she derives from it; for it will not be contended, that a nation who has done us no one act of kindness, during twelve years of peace, has been influenced in this part of her conduct, by affection for us, or any other worthy motive. Notwithstanding, then, that this trade has heretofore been carried on, by the mere permis­sion of the British government, it was no more precarious, or likely to be interrupted or stopped, than the trade we carried on with her European ports. As well might it be said, that Great Britain had hitherto merely permitted us to export her manufactures, and to run in debt every year to her merchants, and as this right may be restrained or prohibited whenever she pleases, it is a great acquisition to have secured it, in such way as to be liable to no interruption. If, then, it be true, that we enjoyed the East India trade in as great a latitude before, as at present, with the addition of the coasting trade of that country, which principally rendered it worth pursuing, why relinquish the latter, without acquiring any extension of the former? for as to its permanency, it has already been shown, that it was as much so, as the interest of Great Britain could render it. Nay, why not only give up the carrying trade; but stipulate expressly, that we will carry to no part of the world, except to the United States, the East India goods we export from the British settle­ments. I know it has been said, that we are not restrained by this article, from exporting from the United States, the goods we bring from those factories in the hast Indies. It is much to be regretted, that in an instrument of this kind, any room should be left for construction or for doubt, as to the true mea [...]g and intention of the parties. This is too frequently the case with this treaty, which, considering the power with which it is made, should have [...] [...]ab [...]y precise, and free from every doubtful and equiv [...]al expression. We know [Page 138]too well, that if construction is resorted to, Great Britain, be­ing the more powerful nation, will be able to put her own upon it; and we have too much reason to fear, from what has alrea­dy happened, that even those who now contend for a contrary construction, will be complaisant enough, to accede to the one adopted by the English ministry. For we have men among us, and they are called patriots, who have justified that nation for her repeated violation of faith to this country, and particularly for her non-observance of the treaty of peace, although Mr. Jefferson, not by reasoning alone, but by facts, has proved that she was not to be justified in a single instance.

It is from this conduct of some of our citizens in office, that Great Britain has been encouraged to persevere in her faithless system towards us, and to demand from us stipulations which an unfortunate war of ten years ought never to have extorted from us. It was a circumstance of additional misfortune to the United States, that the late envoy, for reasons which will never perhaps be developed, was among the foremost in justifying the conduct of Great Britain. From his efforts, therefore, it was impossible for Americans to expect favorable terms. I acquit him, however, and that most sincerely, of any bribery or cor­ruption, in this negociation, so strongly charged upon him by many. I rather believe, that he has been cajoled into the mea­sure—and that from a belief that any treaty whatever, with Great Britain, would be pleasing to a certain party among us. Rather, therefore, than disappoint the expectations of those people, he has affixed his seal to an instrument, which must meet the marked disapprobation of every man in America, ex­cept such only as form the British faction, from whom alone, the United States have to apprehend any kind of danger to their constitution and liberties. This dissatisfaction manifested itself in a most emphatical manner, on the late anniversary of our independence. Even on that auspicious day, when it is usual to bury personal animosity, and to check the effusions and gall of party spirit, how unanimously have different societies and companies, without any previous concert, not only in this city, but in other parts of the state and union, expressed their ab­horrence of the measure! Toasts, significant of their displea­sure, have already appeared from every part; and among the variety which that day gave birth to, is one to be found, which discovers even a partial approbation of the treaty? Not even the merchants, who had invited Governor Jay to a public din­ner, before the c [...]nt [...]nts of the treaty had transpired, had the complaisance, after his excellency's retiring, to lisp a syllable in its favor, either by a t [...]ast or in any other way.

[Page 139] Alarmed at an opposition so sormidable, and conscious, that the measure cannot be defended, those who feed a peculiar interest in forcing it upon us, begin to resort to their old cry of anti-federalism. A calm observer, in the Daily Advertiser of the 11th, remarks, that "a few weak-minded persons have been imperceptibly led astray, and almost sacrificed their prin­ciples on the altar of faction and disappointment, under the garb of republicanism; they have wisely chosen the late treaty for their rallying point, and over the back of this hobby horse, aimed a deadly blow at the constitution."—Instead of answering the numerous objections which are daily made to the treaty, this writer aims an undistinguished consure against all who op­pose it. All those who cannot see what those champions have not yet discovered themselves, that the treaty is an eligible one for this country, are, forsooth, weak-minded, or anti-federalists. —It is not easy to discover any connection between the fate of this treaty and the constitution. The true friends of the consti­tution may be opposed to the treaty, as, on the other hand, its enemies may advocate it: whether this be really the case, is left to the people, if they be not too weak-minded, to deter­mine. Be not deceived, fellow citizens; those who oppose the treaty, are as firm friends to the constitution as any among you; they know its excellencies, and are not afraid to speak of its de­fects, as time and operation discover them; for what human work is perfect? They wish not only that it may be maintained, but that it may be defended from the encroachments of a set of men, who, while accusing you of a desire of overthrowing the government, are destroying the first principles of our asso­ciation, and by constructions, usurpation, and otherwise, are either assuming to themselves or granting to others, powers and authorities not warranted by the constitution. Is there a man among us who has ever advised you to oppose any measure of government? Do we dispute the right of the senate and presi­dent to make treaties? No; but we insist upon the right (and it was the exercise of this right which secured our freedom and independence) of giving our sentiments upon any act which it is proposed to make the rule of our conduct and the supreme law of the land; we claim the privilege of petitioning and remonstrating against a measure, which ignominiously sacrifices to our first and greatest enemy, our just demands, and must, in time, prostrate at her feet, our very sovereignty and indepen­dence. We think we are not to blame for exposing to view the secret machinations of one branch of the legislature to form a disgraceful connection with any nation. In sine, we claim the right of thinking for ourselve, uninfluenced by office or other [Page 140]unworthy considerations, and we thank God, that the unbiassed voice of America, as far as it has been heard, from the several states where our disgrace has been published, is on our side. —We rejoice at this circumstance, because such united and unconcerted marks of displeasure, we yet hope, may induce the president to suspend his sanction, and thereby give himself a new title to the endearing appellation of the father of his country.

But it is time to return to the 13th article—we left it in doubt, whether Americans could carry to Europe, or elswhere (except to their own country) the articles they export from the British East Indies; for, if they cannot, it is conceded, that such a restriction, together with a formal dereliction of the coasting trade, were considerations too valuable and dispropor­tioned for the permission given us in the former part of the article. I say, we cannot, and that, confused as the phraseo­logy is, it will admit of no other reasonable construction. "It is expressly agreed (these are the words of the treaty) that the vessels of the United States shall not carry any of the articles exported by them from the said British territories (or, in other words, any British East India articles) to any port or place, ex­cept to some port or place in America, where the same shall be unladen." If, then, the articles have been exported by us, from the British territories in the East Indies, under which clause is it, that we claim a right to carry them to Europe, or else­where? If such privilege was intended, why oblige us to unlade them in the United States? or why not, in express terms, se­cure the permission? Hence it follows, that this article, in­stead of extending our commerce, may be regarded among the most obnoxious of the treaty; and I am well informed, that our merchants, who are immediately concerned in the East India trade, view it in that light: British factories will soon be established in our principal sea-ports; and, in a few years, the whole of this trade must fall into their hands. Well might Mr. Pitt boast, on the floor of the house of commons, that he was not ashamed of his treaty with this country; his still in finance has been long admitted; his abilities, as a nego­ciator, ought never hereafter to be called in question.