I. The origin and progress of the negociation for the Treaty, are not calculated to excite confidence.

1. THE administration of our government have, seemingly at least, manifested a policy fa­vorable to Great Britain, and adverse to France.

2. But the house of representatives of congress, impressed with the general ill conduct of Great Bri­tain towards America, were adopting measures, of a mild though retaliating nature, to obtain redress and indemnification. The injuries complained of were, principally, 1st, The detention of the western posts—2dly, The delay in compensating for the negroes car­ried off at the close of the war—and 3dly, The spoli­ations committed on our commerce. The remedies proposed were, principally, 1st, The commercial re­gulations of Mr. Madison—2dly, The non-intercourse proposition of Mr. Clarke—3dly, The sequestration motion of Mr. Dayton—4thly, An embargo—and 5thly, Military preparation.

3. Every plan of the legislature was, however, sus­pended, or rather annihilated, by the interposition of the executive authority; and Mr. Jay, the chief jus­tice of the United States, was taken from his judicial [Page 84] seat, to negociate with Great Britain, under the in­fluence of the prevailing sentiment of the people, for the redress of our wrongs. Query—Are not his com­mission and the execution of it, at variance? Is any one of our wrongs actually redressed? Is not an atone­ment to Great Britain, for the injuries which she pre­tends to have suffered, a preliminary stipulation?

4. The political dogma of Mr. Jay are well known; his predilection, in relation to France and Great Bri­tain, has not been disguised; and even on the topic of American complaints, his reports, while in the office of secretary for foreign affairs, and his adjudications while in the office of chief justice, were not calculated to point him out as the single citizen of America, fitted for the service in which he was employed. Query—Do not personal feelings too often dictate and govern the public conduct of ministers? But whatever may have been his personal disqualifications, they are absorbed in the more important consideration of the apparent violence committed by Mr. Jay's ap­pointment, on the essential principles of the constitu­tion. That topic, however, has already been discuss­ed, and we may pass to the manner of negociating the treaty in England, which was at once obscure and illusory. We heard of Mr. Jay's diplomatic honors; of the royal and ministerial courtesy which was shewn to him, and of the convivial boards to which he was invited: but, no more! Mr. Jay, enveloped by a dan­gerous confidence, in the intuitive faculties of his own mind, or in the inexhaustible fund of his diplomatic information, neither possessed nor wished for external aid; while the British negociator, besides his own ac­quirements, entered on the points of negociation, fraught with all the auxiliary sagacity of his brother ministers, and with all the practical knowledge of the most enlightened merchants of a commercial nation. The result corresponds with that inauspicious state of things. Mr. Jay was driven from the ground of an injured, to the ground of an aggressing, party; he [Page 85] made atonement for imaginary wrongs, before he was allowed justice for real ones; he converted the resent­ments of the American citizens (under the impressions of which he was avowedly sent to England) into amity and concord; and seems to have been so anxious to rivet a commercial chain about the neck of America, that he even forgot, or disregarded, a principal item of her own produce (cotton) in order to make a sweep­ing sacrifice to the insatiable appetite of his maritime antagonist. But the idea of the treaty, given by Mr. Pitt in answer to Mr. Fox, who, before he had seen, applauded it as an act of liberality and justice towards America, was the first authoritative alarm to our inte­rests and our feelings. "When the treaty is laid be­fore the parliament (said the minister) you will best judge, whether any improper concession has been made to America!"

5. The treaty being sent hither for ratification, the president and the senate pursue the mysterious plan in which it was negociated. It has been intimated, that till the meeting of the senate, the instrument was not communicated even to the most confidential officers of the government: and the first resolution taken by the senate was to stop the lips and ears of its members against every possibility of giving or receiving inform­ation. Every man, like Mr. Jay, was presumed to be inspired. In the course of the discussion, however, some occurrences flashed from beneath the veil of se­crecy; and it is conjectured that the whole treaty was at one time in jeopardy. But the rhetoric of a mi­nister (not remarkable for the volubility of his tongue) who was brought post haste from the country; the danger of exposing to odium and disgrace the distin­guished American characters, who would be affected by a total rejection of the treaty; and the feeble, but operative, vote of a member transported from the lan­guor and imbecility of a sick room, to decide in the senate a great national question, whose merits he had [Page 86] not heard discussed; triumphed over principle, argu­ment and decorum!

6. But still the treaty remains unratified; for, un­less the British government shall assent to suspend the obnoxious twelfth article (in favor of which, however, many patriotic members declared their readiness to vote) the whole is destroyed by the terms of the rati­fication: and if the British government shall agree to add an article allowing the suspension, the whole must return for the re-consideration of the senate. But the forms of mystery are still preserved by our govern­ment; and attempts to deceive the people have been made abroad, upon a rain presumption, that the treaty could remain a secret, till it became obligatory as a law.

For instance; in Fenno's paper of the 25th of June, it is unequivocally declared, the "the treaty of amity, commerce and navigation was ratified yesterday by the senate of the United States;" and, even while he cor­rects that mistake in the paper of the following day, he commits an error of a more extraordinary kind (particularly when we consider that he is the confi­dential person, who printed the treaty for the use of the senate) by asserting, that in the twelfth article, "the United States are prohibited from exporting to Europe from the said states, sugar, coffee, cotton and cocoa, the produce of any of the West-India islands." The fact must have been known to Mr. Fenno, that the prohibition operates universally; whether the pro­hibited articles are the produce of the West-India islands, of the East Indies, of the United States, or of any other part of the world. The next essay to render the envelopements of the treaty still more opaque, appeared in the American Daily Advertiser of the 27th of June. The writer (who is said to be a member of the senate) likewise regards the ratifica­tion, in his introduction, as a perfect one; and after giving a gloss to the general texture of the treaty, he ascribes the obnoxious principle of the twelfth article, [Page 87] to an error which, it appears, has been inadvertently in­troduced. An error inadvertently introduced into an instrument, which was under the consideration of the chief justice of the United States, and the British minister, for a term of eight months! and intro­duced too, into a part of that very article, which is made the sole foundation of the whole commercial su­perstructure!! Whenever the twelfth article ceases, the treaty declares, every other article, except the ten first articles, shall also cease! But the author of that sketch proceeds one step further—he says, "that every cause of offence or collision towards the French, seems to have heen studiously avoided, in the progress of the negociation;" for "no article of the treaty clashes in the smallest degree, with the obligations and engage­ments contracted with that gallant nation!" Let the treaty, speak for itself—it is more to be hoped than expected, that the voice of France should not likewise be heard in opposition to so bold an assertion.

II. Nothing is settled by the Treaty.

1. The western posts are to be given up.

2. The northern boundary of the United States is to be amicably settled.

3. The river meant by St. Croix river in the treaty, is to be settled.

4. The payment for spoliations is to be adjusted and made.

5. The ultimate regulation of the West-India trade is to depend on a negociation to be made in the course of two years after the termination of the existing war.

6. The question of neutral bottoms making neutral goods is to be considered at the same time.

7. The articles that may be deemed contraband are to be settled at the same time.

8. The equalization of duties laid by the contract­ing parties on one another, is to be hereafter treated of.

9. All the commercial articles depend on the exist­ence [Page 88] of the twelfth article, which may continue twelve years, if it is so agreed within two years after the ex­piration of the war; but if it is not so agreed, it expires, and with it all the dependent parts of the treaty. Query—Does not the senate's suspension of the twelfth article, bring us to the same ground?

10. The whole business of Mr. Jay's negociation is left open by the twenty-eighth article, for altera­tion, amendment and addition, by new articles, which, when agreed upon and ratified, shall become a part of this treaty.

Query—Does not the history of treaties prove, that whenever commissioners have been appointed by the parties, to take all the subjects of their dispute ad referendum, for the sake of getting rid of an immediate pressure, and patching up a peace, the matter terminates in creating, not in settling differences?

III. The Treaty contains a colourable, but no real Reciprocity.

1. The second article provides for the surrender of the western posts in June, 1796; but it stipulates, that in the mean time the citizens of the United States shall not settle within the precincts and jurisdiction of those posts; that the British settlers there shall hold and enjoy all their property of every kind, real and personal; and that when the posts are surrendered, such settlers shall have an election either to remain British subjects, or to become American citizens. Query—Were not the western posts, and all their pre­cincts and jurisdiction, the absolute property of the United States by the treaty of peace? Query—What equivalent is given for this cession of the terri­tory of the United States to a foreign power? Query—How far do the precincts and jurisdiction of the posts extend? Query—Does not the treaty give an implied assent to major Campbell's claim, by adopting its language, as far as the falls of the Miami, and to [Page 89] the northern claim upon the territories of New York and Vermont?

2. The third article stipulates that the two contract­ing parties may frequent the ports of either party on the eastern banks of the Mississippi. Query—What ports has Great Britain on the eastern banks of the Mississippi?

3. The third article likewise opens an amicable intercourse on the lakes; but excludes us from their sea-ports, and the limits of the Hudson's bay company; and excludes them from navigating our Atlantic rivers, higher than the highest port of entry in each. Query—What are the limits of the Hudson's bay company? Query—What equivalent do the United States obtain for the general freedom of navigation, portage and passage? For it must be remembered, that the British rivers penetrate the heart of the country, but of those we can take no advantage; while Great Britain is in fact admitted to all the advantages of which our At­lantic rivers are susceptible.

4. The sixth and seventh articles provide for satis­fying every demand which Great Britain has been able, at any time, to make against the United States (the payment of the British debts due before the war, and the indemnification for vessels captured within our territorial jurisdiction) but the provision made for the American claims upon Great Britain, is not equally explicit or efficient in its terms, nor is it co­extensive with the object.—Query—Why is the de­mand for the negroes, carried off by the British troops, suppressed, waved, or abandoned? The pre­amble to the treaty recites an intention to terminate the differences between the nations: was not the affair of the negroes a difference between the nations? and how has it been terminated?

5. The ninth article stipulates that the subjects of Great Britain and the citizens of the United States, respectively, who now hold lands within the territories [Page 90] of either nation, shall hold the lands in the same man­ner as natives do. Query—What is the relative pro­portion of lands so held? Query—The effect to revive the claims of British subjects, who, either as traitors or aliens, have forfeited their property within the respective states? Query—The operation of such a compact on the internal policy of the union, com­bined with the solemn recognition of a colony of British subjects, professing and owing allegiance to the British crown, though settled within the acknow­ledged territory of the United States, by virtue of the second article?

6. The tenth article declares that neither party shall sequester or confiscate the debts or property in the funds, &c. belonging to the citizens of the other, in case of a war, or of national differences. Great Britain has fleets and armies; America has none. Query—Does not this, supported by other provisions, which forbid our changing the commercial situation of Great Britain, or imposing higher duties on her than on other nations, deprive the United States of her best means of retaliation and coercion? Query—Is it not taking from America her only weapon of defence; but from Great Britain the least of two weapons which she possesses? What is the relative proportion held by the citizens of the contracting na­tions respectively in the funds, &c. of each other?

7. The twelfth article opens to our vessels, not ex­ceeding seventy tons, an intercourse with the British West-India islands, during the Present war, and for two years after: but it prohibits our exporting from the United States, melasses, sugar, cocoa, coffee, or cotton, to any part of the world, whether those articles are brought from British, French, or Spanish islands, or even raised (as cotton is) within our own territory.—Query—Are vessels of seventy tons equal to main­tain the most beneficial part of our trade with the West-Indies, the transportation of lumber, &c.? Query—Do we not in time of war (and the continu­ance [Page 91] of the privilege for more than two years after the war, depends on the situation in which his majesty of Great Britain shall then find himself in relation to the islands) enjoy a greater privilege under the tempo­rary proclamations of the colonial governors than this article admits? Query—Have not the articles, which we are prohibited from exporting, formed of late a valuable part of our trade? Is not cocoa chiefly cul­tivated by the Spaniards? Is not cotton a staple of America? Is our own consumption equal to our im­portation, or growth of the prohibited articles? Will not the want of a vent for any surplus quantity, affect the other branches of our commerce, diminish the de­mand for ship building, and injure our agriculture? If we are now thrown out of this branch of the carry­ing trade, shall we be ever able to recover it? and, in short, will not the loss be of lasting detriment to all our maritime exertions?

8. The thirteenth article admits us to trade in the British settlements in the East Indies: but it excludes us from any share in the coasting trade of that coun­try; it forbids our penetrating the interior of the country, or holding an intercourse with the natives, unless under a license from the local British govern­ment; and it compels us to land all the articles that are there shipped, in the United State. Is not China the independent territory of the emperor? Is not Canton an open port, accessible to all nations? Do we not obtain there, and at independent places in the East Indies with which we have, at present, an un­interrupted communication, tea, porcelain, nankeens, silk, &c. upon the principles of a free trade? Does not a very advantageous part of the trade in that quar­ter of the globe, consist in the exchange of the pro­ducts and manufactures of the East Indies for those of China, and vice versa? Do not our importations of East India goods far exceed our consumption? Is not the trade which we carry on with those goods in Europe, highly beneficial? Are not sugar and coffee [Page 92] a part of our importations, from India, and does not the 12th article prohibit our re-exporting them? Does our trade to Europe, founded on the previous intercourse with India, depend on the British license; and can it be maintained under the disadvantage of a double voy­age? Are we not every voyage making favourable impressions on the natives of China? Do we not participate at present in the carrying trade of that country? Does not our interest in it increase rapidly?

9. The several articles that regulate the rights and privileges of the contracting parties within their res­pective territories, in case either of them is engaged in a war, may cease in two years after the present war is terminated, and cannot be protracted beyond twelve years. Query—Are not all these advantages, in effect, exclusively favourable to Great Britain, a prin­cipal maritime power of Europe; often engaged in wars; and interested to obtain for her ships, her colo­nies, and herself, the ports and supplies of this exten­sive continent?

Is it probable that during the longest possible exist­ence of this treaty (twelve years) America will be engaged in maritime wars, will want English ports as a refuge for men of war, or as a retreat for prizes? Or that it will, during that period, be of importance to her objects, to prevent her enemies from arming in English ports, or selling their prizes there?

10. The twenty-second article provides for ships of war being hospitably treated in the ports of the res­pective contracting parties; and that officers shall be treated with the respect that is due to the commis­sions which they bear? Query—Could not the principle of reciprocity, as well as humanity, suggest to Mr. Jay, that some provision should be made to protect our ci­tizen sailors from the fangs of British press gangs in England; and from the horrors of their prison ships in the West Indies? Were the commissions of his Britannic majesty of more regard than the liberties of American freemen? Or, was it unknown that thou­sands [Page 93] of our sailors have been occasionally enslaved by the impress tyranny of the British government? Or that thousands have lost their lives in noxious prisons, while their vessels were carried into British ports for "LEGAL ADJUDICATION?"

11. The fourteenth article provides for a perfect li­berty of commerce and navigation, and for the ac­commodation of traders; but subject always to the laws and statutes of the two countries respectively: Query—Are not the laws and statutes of England in­finitely more rigid on the subjects of this article, than the laws and statutes of America?

IV. The Treaty is an Instrument of Party.

1. The discussions, during the session of congress, in which Mr. Jay's mission was projected, evinced the existence of two parties, upon the question whether it was more our interest to be allied with the republic of France, than with the monarchy of Great Britain. Query—Does not the general complexion of the trea­ty decide the question in favor of the alliance with Great Britain? Query—Whether that complexion does not manifestly arise from the provisions, for ad­mitting a British colony within our territory in the neighbourhood of the western posts; for admitting the whole British nation without an equivalent into a participation of our territory on the eastern bank of the Mississippi; for naturalizing all the holders of lands; for opening a general intercourse with their traders on the lakes in the interior of our country, ren­dering (as it is idly said) the local advantages of each party common to both; for regulating the external trade of the two nations with each other; for admit­ting citizens to be punished as pirates, who take com­missions, &c. from a belligerent power adverse to ei­ther contracting party; for fettering the operations of our treaty with France; for surrendering criminals, &c. &c. &c.

[Page 94]2. The measures proposed by one party to retaliate the injuries offered by Great Britain to our territorial, commercial and political rights, were opposed by the other, precisely as the treaty opposes them. For in­stance:—

• (1.) Mr. Madison projects a regulation of our com­merce with Great Britain, by which the hostile spirit of that nation might be controuled on the footing of its interest. The treaty legitimises the opposition which was given to the measure in congress, by de­claring in article fifteen, "that no other or higher du­ties shall be paid by the ships or merchandize of the one party in the ports of the other, than such as are paid by the like vessels or merchandize of all other nations; nor shall any other or higher duty be impos­ed in one country on the importation of any articles of the growth, produce, or manufactures of the other, than are or shall be payable on the importation of the like articles of the growth, &c. of any foreign country.
• (2.) Mr. Clarke proposes to manifest and enforce the public resentment by prohibiting all intercourse be­tween the two nations. The treaty destroys the very right to attempt that species of national denunciation, by declaring in the same article, that "no prohibition shall be imposed on the exportation or importation of any articles to or from the territories of the two par­ties respectively, which shall not equally extend to all other nations."
• (3.) But Mr. Dayton moves, and the house of re­presentatives support his motion, for the sequestration of British debts, &c. to ensure a fund for paying the spoliations committed on our trade. The treaty (without regarding the respect due to the commission which is borne by our members of congress) not only despoils the government of this important instrument to coerce a powerful, yet interested adversary into acts of justice, but enters likewise into a commentary, which, considering the conduct of one of the branch­es of our legislature, Lord Grenville, consistently with [Page 95] decorum, could not have expressed, or at least Mr. Jay, for the sake of our national dignity, ought not to have adopted. The tenth article declares, that "nei­ther the debts due from individuals of the one nation to individuals of the other, nor [...]es nor monies which they may have in the public funds, or in the public or private banks, shall ever, in any event of war or national difference, be sequestered or confiscated, it being unjust and impolitic, that debts and engagements contracted and made by individuals having confidence in each other and in their respective governments, should ever be destroyed or impaired by national au­thority on account of national differences and discon­tents." The terms are very similar to those that gave Mr. Dayton offence in a speech pronounced by Mr. Ames; and certainly it will be deemed no mitigation, that the charge of committing " an unjust and impolitic act," has been wantonly engrafted upon the most so­lemn of all instruments,—a public treaty! Query:—Would Lord Grenville have consented to brand his Royal Master with the title of Great Sea Robber, if Mr. Jay's urbanity could have permitted him to bor­row the epithet from another member of congress, in order to insert it, in the article that relates to the British spoliations on our trade? But perhaps, Mr. Jay forgot, that the commentary operated as a reflec­tion on the government of the United States, and on­ly meant it as a reproach to Great Britain, for seques­tering during the late war, and retaining at this mo­ment, the property belonging to Maryland, lying in the bank of England. It might, likewise, be intend­ed as a satire upon the parliamentary sequestration of French property in the famous "Intercourse Act:" or, perhaps, Mr. Jay anticipated the revolution in Holland, and designed his commentary as a warning against the seizing of Dutch property, public and private; which, however, has since taken place, in spite of his solemn admonition.

[Page 96]3. The trials that had occurred relative to the equipment of French privateers in our ports; and the enlistment of our citizens in the service of the repub­lic, had produced some embarrassment in the course of party pursuits. These are obviated by the treaty. The British nation by which the empress of Russia has always been supplied with naval officers, and whose fleets and armies are always crowded with volunteers from other nations, consents that her subjects shall not serve against us; and stipulates that our citizens shall not serve against her. This contract is made with a power actually engaged in a war; and seldom more than seven years clear of one; by a power at peace, not liable, from her local position, and political con­stitution, to be involved in war, and in strict alliance with the nation against whom the stipulation will im­mediately operate. Captain Barney and the other Americans, who have joined the arms of France, are thus involved in the most serious dilemma. If they expatriate themselves, they may possibly escape the vengeance of the American government; but will that save them from the vengeance of Great Britain, whose concessions on the doctrine of expatriation are not quite so liberal? By the bye, it may here be sea­sonably repeated, that while Mr. Jay was so willing to prevent American citizens from entering into the service of France, he might surely have taken some pains to secure them from being pressed into the ser­vice of England. He would have found, on enquiry, that the instances of the latter kind are infinitely more numerous than of the former. But it is enough that the measure will be introductory of a law, favourable to the view of a party which reprobates every idea of assisting the French, and cultivates every means of conciliating the British.

4. It has, likewise, been thought by some politici­ans, that the energies of our executive department re­quire every aid that can be given to them, in order more effectually to resist and controul the popular [Page 97] branches of the government. Hence we find the treaty-making power employed in that service; and congress cannot exercise a legislative discretion on the prohibited points (though it did not participate in making the cession of its authority) without a decla­ration of war against Great Britain. George the third enjoys by the treaty a more complete negative to bind us as states, than he ever claimed over us as colonies.

V. The Treaty is a violation of the general principles of neutrality, and is in collision with the positive previous engagements which subsist between America and France.

1. It is a general principle of the law of nations, that during the existence of a war, neutral powers shall not, by favor or by treaty, so alter the situation of one of the belligerent parties, as to enable him more advantageously to prosecute hostilities against his adversary. If, likewise, a neutral power shall refuse or evade treating with one of the parties, but eagerly enter into a treaty with the other, it is a par­tiality, that amounts to a breach of neutrality. These positions may be supported by the authority of the most esteemed writers on the subject; but it will be sufficient in the present case, to cite the conduct of Great Britain herself. Thus, it has been adjudged by Lord Mansfield, "that if a neutral ship trades to a French colony, with all the privileges of a French ship, and is thus adopted and naturalized, it must be looked upon as a French ship, liable to be taken." See Judge Blackstone's reports, I vol. p. 315, 314. According to the principle on which this judgment was given, the act of issuing the memorable orders of the 6th of November, 1793, and the consequent seizure of all our vessels, are attempted to be justified. Great Britain alleges (when it is injurious to France) that trading with the French islands, on a sooting not allowed before the war, is a breach of neutrality, and [Page 98] cause of confiscation: and, therefore, Great Britain must also admit, at least America will not deny, that trading with the British islands, on a footing not allowed before the war; or, in different words, altering and enlarging the commercial relations of the two countries, is equally a breach of our neutrality towards France. When the, sword is found to cut both ways, the party who uses it has no right to complain.

2. That we have on the one hand, evaded the over­tures of a treaty with France, and on the other hand, solicited a treaty from Great Britain, are facts public and notorious. Let us enquire then what Great Bri­tain has gained on the occasion, to enable her more advantageously to prosecute her hostilities against France.

(1.) Great Britain has gained time. As nothing is settled by the treaty, she has it in her power to turn all the chances of the war in her favor; and, in the interim, being relieved from the odium and embarrass­ment of adding America to her enemies, the current of her operations against France is undivided, and will of course flow with greater vigor and certainty. We have been for so many years satisfied with the pro­mises of the treaty of peace, that Great Britain has cause to expect at least an equal period of credit, for the promises of the treaty of amity. If, indeed, it is true, that the reasons assigned by lord Grenville to Mr. Jay, for declining an immediate surrender of the posts, were, first, that the British traders might have time to arrange their out-standing business; a privilege that is expressly granted by the treaty, and could not, therefore, furnish a real excuse for delay; and secondly, that the British government might be able to ascertain what would be the probable effect of the surrender, on the Indians; a reservation that demonstrates an intention to be governed by events; we can very well account for the late extensive shipment of artillery and ammuni­tion to Canada; and may easily calculate the import­ance [Page 99] of gaining time, in order to promote the Ameri­can, as well as European, objects of Great Britain.

(2.) Great Britain gains supplies for her West India colonies; and that for a period almost limited to the continuance of the war, under circumstances which incapacitate her from furnishing the colonial supplies herself; and, indeed, compel her to invite the aid of all nations, in furnishing provisions for her own domes­tic support. The supplies may be carried to the islands either in American bottoms not exceeding seventy tons, or in British bottoms of any tonnage.

(3.) Great Britain gains an advantage over France, by prohibiting the exportation of sugar, &c. in consequence of which the colonies of France must, in a great measure, remain unsupplied with provisions, &c. as they can only in general pay for them in those articles, whose use is confined to the American consumption. It will be remembered, that the produce of the French islands has of late constituted a great part of our European remittances. If, therefore, that trade is cut off, and at the same time, besides employing our own small craft of seventy tons, Great Britain is al­lowed, to any extent of tonnage, to be our West India factor, it is obvious that our consumption of sugar, coffee, &c. &c. will be abundantly supplied, without maintaining an intercourse with the French, or even with the East Indies, to procure any of those articles. Perhaps this method, though less bold, will be more effectual to prevent our furnishing the French islands with provision, than declaring them to be in a state of blockade, and seizing the vessels that attempt to visit them.

(4.) It is another important gain to Great Britain (which might, likewise, have been adverted to under the feature of reciprocity) that, to any extent of ton­nage, her vessels may carry on the West India trade for us, either to supply our domestic consumption, or European engagements, subject to no other or higher duties than our own vessels, while our own vessels are [Page 100] restricted to a pitiful size, and circumscribed to a par­ticular voyage. But whatever may be thought of the benefit in acquiring for America even this scanty participation in the West India trade, no one (after the rejection of the twelfth article) will deny that the whole measure changes the relative situation of the two countries, avowedly in favor of Great Britain, and operatively injurious to France; and every such change is derogatory to our boasted neutral character.

(5.) The admission of Great Britain to all the commercial advantages of the most favored nation, and the restraints imposed upon our legislative independence, as stated in the party feature of the treaty, are proofs of predilection and partiality in the American government, which cannot fail to improve the resources of Great Britain, and to impair the interests, as well as the attachments, of France.

(6.) The assent to the seizure of all provision-ships, and that, in effect, upon any pretext, at a period when Great Britain is distressed for provisions, as well as France; and when the system of subduing by famine has been adopted by the former against the latter nation, is clearly changing our position, as an inde­pendent republic, in a manner detrimental to our ori­ginal ally. That our merchants will be paid a rea­sonable profit for their cargoes, &c. may render the measure more palatable to us; even under the loss of the return cargo, the derangement of the voyage, and the destruction of the spirit of commercial enter­prize; but that consideration cannot render it less offensive to France. It may properly be here re­marked, that Sweden and Denmark have obtained, by a spirited resistance, an actual indemnification for the seizures which have heretofore taken place, and an exemption from all such outrages in future; while America has only put those which are past, in a train of negociation, and has given a legitimate effect to those which are to come The order, which the English gazettes say, has recently been issued for seizing [Page 101] American provision-ships, on their passage to France, ought not, therefore, to be complained of, as it is merely an exercise, by anticipation, of the right granted by the treaty.

(7.) Great Britain has gained the right of preventing our Citizens from being volunteers in the armies or ships of France! This is not simply the grant of a new right to Great Britain, but is, at the same time, a posi­tive deprivation of a benefit, hitherto enjoyed by France. Neither the laws of nations, nor our muni­cipal constitution and laws, prohibited our citizens from going to another country, and there, either for the sake of honour, reward, or instruction, serving in a foreign navy, or army:—Colonel Oswald and many others have done it:—Captain Barney and many others are doing it. But a proclamation must issue to recall all such volunteers, and punishment must follow diso­bedience, if the twenty-first article of the treaty is to be effectuated, as the supreme law of the land.

(8.) Great Britain has gained a right to treat and punish as pirates, any of our citizens who shall accept, even while they are in France, any commission to arm a privateer, or letter of marque. It is true, that a similar provisi­on is contained in other treaties; but we are now on­ly considering the alterations which are made by the treaty under discussion, in favor of Great Britain, and injurious to France. How far there exists a power to define piracy, by treaty, will be remarked in deli­neating another feature of Mr. Jay's diplomatic off­spring.

(9.) Great Britain has doubly gained, by obtaining in our ports, an asylum for her ships of war, privateers, prizes, &c. and stipulating for an exclusion of those of her ene­mies, other (it is admitted) than France. The twenty-fourth and twenty fifth articles of the projected trea­ty, are nearly copied from the subsisting treaty with France. It would be curious, however, to reflect on the very different motives, which must justify (if the [Page 102] idea of a justification could in the late instance be at all admissible) these analagous grants. The concessi­on to France was made when we were at war, and she was not; it was made upon a certainty of recipro­cal advantage; and it was made as a price for obtain­ing the aid of that gallant nation in the establishment of our independence. The conecssion is made to Great Britain when she is at war, and we are not;—without any rational prospect of deriving any reciprocal ad­vantage from it; and under such circumstances of in­jury and insult, as might have admonished us to reserve it as the price for obtaining aid from other nations in re­sisting her hostilities, instead of paying it for smiles with­out affection, and promises without sincerity. When we were making treaties with Holland, Prussia, &c. did we not expressly exclude them from such import­ant, and as we have already seriously experienced; such dangerous privileges?

But it will be asked, perhaps, what mighty benefit has Great Britain gained in this case at the expense of France, since the prior similer privileges of France are exclusive? Answer:—That as the privilege of Great Britain will operate against every other nation, it will immediately affect the French republic's alli­ance, offensive and defensive, with the United Pro­vinces, which preceded the ratification, at least, of the treaty: and it may eventually have the same perni­cious influence in relation to Prussia, Spain and Por­tugal, whose disposition to change sides, in the pre­sent war, has been unequivocally expressed. Thus, though Holland and Prussia made treaties with us long before Great Britain would admit the idoa of a negociation, and though Spain and Portugal are the only customers, who furnish us with a ready money balance, for the very purpose of paying our annual accumulation of debt to Britain, the harbours of A­merica are open to their vessels as prizes, but shut to them as friends: They may be brought hither and sold by their enemies; but if they have captured [Page 103] their enemy, all, but common necessaries, shall be denied to them! The habits, bias, and opinions of a people, ought not to be altogether disregarded is making a treaty. What honest, feeling American, could patiently see an Englishman, our sunshine ally, bringing into our ports as prizes, the ships of Hol­land, our ally in the times that tried men's souls;—a repub­lic, indissolubly united with France,—that earliest, lat­est, best of friends? What honest, feeling American, even submitting to a scene so painful, would willingly assist in expelling from our ports the ships of Holland, which had merely retaliated, by the capture of their foe?

3. But it is time to advert to the cases collision be­tween the two treaties; and these are of such in nature as to produce a violation of the spirit, though not a po­sitive violation of the words of the previous engage­ments, that subsist between France and America—They are causes of offence, and clash in the highest degree.

(1.) By the ninth article of the treaty of alliance with France, we guarantee the possessions of that nation in Ameri­ca. It is true, that our situation is such as to incapaci­tate, and of course to excuse us from a direct fulfilment of this guarantee; but it is equally true, that we violate our faith, whenever we do any thing that will, either directly or indirectly, endanger those possessions.—Query—Whether facilitating the means of supplying the British forces in the West Indies will not be the effect of the arrangements relative to the trade with the British islands? Query—Whether restraining our intercourse with the French islands, as a consequence of the treaty already predicated, will not expose them to want, and of course to the necessity of yielding to their enemies? Does not every such advantage giv­en to Great Britain, clash with our engagements to France?

(2.) By our treaty with France, and indeed with several other nations, it is expressly stipulated, that free [Page 104]vessels shall make free goods. At the time of entering into the stipulation, and even at this moment, the maritime strength of France (always superior to that of Denmark and Sweden, which has, under similar circumstances, been successful) could command the respect of the world for her engagements. It is true America neither was, nor is, in a situation to produce the same complaisance; and on the ground of that weakness, France has hitherto candidly dispensed with a strict performance of the treaty. But though Ame­rica cannot enforce, she ought not to abandon her en­gagements: she may submit to imperious necessi­ty, but she cannot voluntarily bring into question the right of protecting, as a neutral power, the property of France; while France is not only ready and able to afford her property the stipulated protection, but in conformity to the stipulation, actually allows the pro­perty of Great Britain to pass free, under the sanction of the American flag. When, therefore, the treaty with Great Britain agrees, that within two years after the termination of the existing war, it shall be discussed "whether in any, and what cases, neutral vessels shall protect enemies' property"— does it not clash with our previous promise to France, that free ships shall make free goods? And when the treaty with Great Britain, in formal and explicit terms, further agrees, "that in all cases where vessels shall be captured or detained, on suspicion of having on board enemies' property, &c. the part which belongs to the enemy shall be made prize "—Is not this an evident collision with our previous agreement with France, and with the security which British pro­perty enjoys in consequence of it? While France ad­heres to her treaty, by permitting British goods to be protected by American bottoms, is it honest, honor­able, or consistent, on our part, to enter voluntarily in­to a compact with the enemies of France, for permitting them to take French goods out of our vessels? We may not be able to prevent, but ought we to agree to the proceeding? Let the question be repeated—Does [Page 105] not such an express agreement clash with our express, as well as implied, obligations to France?

(3.) By enumerating, as contraband articles, in the treaty with Great Britain, certain articles which are declared free in the treaty with France, we may, con­sistently with the latter, supply Great Britain; but, con­sistently with the former, we cannot supply France.

Thus our treaty with France (and indeed, every treaty which we have) expressly declares, that, "in general all provisione which serve for the nourishment of mankind and the sustenance of life; furthermore, all kinds of cotton, hemp, flax, tar, pitch, ropes, cables, sail cloths, anchors and any parts of anchors, also ships, masts, planks, boards and beams of what trees soever; and all other things proper either for building, or repairing ships, and all other goods what­ever, which have not been worked into the form of any instrument for war, by land or by sea, shall not be reputed contraband."

The treaty with Great Britain expressly declares, "that timber for ship building, tar or rosin, copper in sheets, sails, hemp and cordage, and generally whatever may serve directly to the equipment of ves­sels, unwrought iron, and fir planks only excepted, shall be objects of confiscation, whenever they are attempt­ed to be carried to an enemy."

Whether this stipulation can be considered as founded on a principle of reciprocity, since the ar­ticles declared to be contraband are among our princi­pal exports, but among the principal imports of Great Britain, might have been adverted to, in tracing a former feature of the treaty; but let it be now can­didly answered, whether it is not in collision with our previous engagements with France? The right to make such a stipulation, is not, at present, controvert­ed; but only the assertion, that exercising the right does not clash in any degree with the terms and spirit of the French treaty. France exempts those important materials of our commerce from confiscation, in favor [Page 106] of all the world: Great Britain condemns them to confiscation whenever they shall be carried to her ene­mies; and the compact is made, while France is one of her enemies!!

VI. The Treaty with Great Britain is calculated to injure the United States, in the friendship and favor of other foreign nations.

1. That the friendship and favor of France will be affected by the formation of so heterogeneous an alli­ance with her most implacable enemy, cannot be doubted, if we reason upon any scale applicable to the policy of nations, or the passions of man. From that republic, therefore, if not an explicit renuncia­tion of all connection with the United States, we may at least expect an alteration of conduct: and finding the success which has flowed from the hostile treat­ment that Great Britain has shown towards us, she may be, at length, tempted to endeavor at extorting from fear, what she has not been able to obtain from affection. She will, probably, declare Great Britain in a state of blockade, for the purpose of seizing our vessels in Europe; and she may institute courts for "legal adjudication," in order to confiscate our vessels in the West Indies. Great Britain will then chuckle at the scene. No one can doubt that our embarrassments will gratify, not only the avowed objects, but the latent resentments, of that nation. Even if she could obliterate the memory of our revolution, she cannot, with pleasure, behold the successful experiment of a republican system of government; nor the rapid ad­vances of a commercial competitor. The moment she has produced a quarrel between America and France, she may exclaim, "Delenda est Carthago!" America is again a colony! How different were the interests and dispositions of our tried friend! That our government should preserve its purity and inde­pendence—that our commerce and agriculture should [Page 107] attain their zenith—were views once congenial with the policy and affections of the French nation: Heart, head, and hand, she would have joined in promoting them, against the arts and enmities of all the rest of the world! What a change, then, have we made!

2. During the war, we, likewise, formed a season­able and serviceable treaty with the United Nether­lands; and, shortly after the war, treaties were esta­blished with Sweden, Prussia, &c. But in order to avoid even the appearance of clashing or collision with the French treaty, the powers, thus early in courting our alliance, were not allowed those privileges of asylum for themselves, and of excluding their enemies from our ports, which are conceded in the projected treaty to Great Britain. Have those nations no cause for jealousy and reproach? What principle of policy or justice can vindicate the partiality and predilection, that has been thus shown?

3. But the projected treaty (after an affected recog­nition or pre-existing public treaties) declares, that while Great Britain and America continue in amity, no future treaty shall be made, inconsistent with the articles, that grant the high and dangerous privileges, that have been mentioned. Every nation of the earth (except France) is thus sacrificed to the pride and interest of Great Britain. And with what motive, or upon what consideration, is the sacrifice made? It has been stated in a former, and will be more fully shewn in a future, feature of Mr. Jay's treaty, that the United States do not enjoy any equivalent for this, nor for any other, concession which is made to Great Britain: But the mischief does not end with the folly of a lop-sided bargain. By granting these exclusive privileges to Great Britain, by declaring that no commercial favor shall be conferred on other [Page 108] nations, without her participating in them, we have thrown away the surest means of purchasing, on any emergency, the good will and good offices of any other power: We cannot even improve the terms of our old treaty with France. For all the advan­tages of trade that Spain, Portugal, Holland, &c. might, and probably would, upon a liberal footing of reciprocity, have given us,—what have we now left, to offer as the basis of negociation and compact?

4. The alteration which the treaty makes in the relative situation of several nations with America, and the conduct, that is likely to be pursued by those nations, in order to counteract its effect, merit serious reflection. Will Spain see, without some solicitude, the partition which we have made with Great Britain, of our territory on the eastern bank of the Mississipi? How would our projected treaty work, if France should recover Pondicherry, &c. in the East Indies; should subdue and retain the West India islands; should stipulate with Spain for the cession of Louisiana; and should conquer Nova Scotia? The curious cordon, with which we have allowed Great Britain to circum­vent us (and of which more will be said hereafter) being thus broken, how are we to calculate the con­sequences?

5. Considering the Indians as a foreign nation, is not the treaty calculated to exalt the character of Great Bri­tain, and to depreciate the character of America, through­out the savage world? What right has Great Britain to negociate for Indians, within the limits of our jurisdicti­on? Suppose the existing western posts surrendered, may not Great Britain establish other posts in a contiguous or more advantageous station? Is she not left at liberty to pursue the fur trade in our territory as well as her own? Will not her enterprize in traffic, superior capital and experience, enable her to monopolize that trade? And will she not in future have the same motives, and the same means, to foment Indian hostilities, that have hitherto been indulged and employed, at the expense of so much American blood and treasure?

VII. The Treaty with Great Britain is impolitic and pernicious, in respect to the domestic interests and happi­ness of the United States.

1. If it is true, and incontrovertibly it is true, that the interest and happiness of America, consist (as our patriotic president, in his letter to Lord Buchan, de­clares) ‘in being little heard of in the great world of politics; in having nothing to do in the politi­cal intrigues, or the squabbles of European nati­ons; but, on the contrary, in exchanging commo­dities, and living in peace and amity with all the inhabitants of the earth; and in doing justice to, and in receiving it from, every power we are con­nected with;’ it is likewise manifest, that all the wisdom and energy of those who administer our go­vernment, should be constantly and sedulously employ­ed to preserve, or to attain, for the United States, that enviable rank among nations. To refrain from forming hasty and unequal alliances; to let commerce flow in its own natural channels; to afford every man, whether alien or citizen, a remedy for every wrong; and to resist, on the first appearance, every violation of our national rights and independence, are the means best adapted to the end which we contemplate. It may be objected, that we are already involved in some alliances, that have had a tendency rather to de­stroy our public tranquility, than to promote our pub­lic interest. But a difference of circumstances will require and justify a difference of conduct. For in­stance—it was necessary and politic, in the state of our affairs at the commencement of the revolution, to pay a premium for the friendship and alliance of France: we could not have insured success without the co-operation of that nation: and as the price that we paid for it was not greater than the benefit that we derived from it, we cannot now, with justice, cavil at our bargain. But [...] the inducement to form an al­liance [Page 110] with Great Britain of a nature equally moment­ous? Is the advantage flowing from the sacrifices that are made, equally compensatory? Why should we, at this auspicious season of our affairs, venture to un­dermine the fundamental maxim of our domestic hap­piness, by wilfully obtruding on the great world of poli­tics; or wantonly involving ourselves in the political in­trigues and the squabbles of European nations? Suppose (as it is often alleged and sometimes proved) that our treaty with France is productive of inconveni­encies; will it happen in the political, any more than in the physical or moral world, that by multiplying the sources of evil, we shall get rid of the evil itself? If, according to the quondam opinion of the friends of a British alliance, our commerce has been restrained in its operations; or if our government has been me­naced in its peace and stability, by a practical de­velopement of the terms of our treaty with France, shall we better our situation, because we make another treaty upon the same terms with Great Britain; and furnish two nations, instead of one, with an opportu­nity to perplex and distress us in pursuing our natural and laudable policy— the policy of exchanging commodi­ties, and living in peace and amity with all the inhabitants of the earth; doing justice to, and receiving it from, eve­ry power we are connected with!

2. But even if the question was at large, and we were now under a necessity of deciding, for the first time, whether we would be allied to the monarchy of Great Britain, or to the republic of France, how would a rational estimate of the interests and happiness of the United States (the true and only touchstone for solving, in the mind of an American, such an enqui­ry) lead us to decide? To those members of the senate, who could regard the twelfth article of the treaty as a mark of parental care and wisdom, by which Great Bri­tain was fondly desirous of restraining the excesses of our commercial ardor; excesses that might eventually and pre­maturely debilitate and destroy us! To those members of [Page 111] the senate, who could, with filial gratitude, declare, that an alliance with Great Britain was natural; that an al­liance with France was artificial; since, although we were partially indebted to France for our independence, we were entirely indebted to Great Britain for our being! To all who can cherish such ideas, or utter such lan­guage, these strictures will be ungracious and unpro­fitable: but they claim a candid attention from the patriot, who remembers, that when the parent sought to destroy, the friend interposed to save; and from the statesman, who possesses too much wisdom to be influenced by prejudice, and too much fortitude to be controuled by fear.

Are the interests and happiness of the United States involved in the permanent establishment of a republi­can government? Yes:—Then she ought rather to cultivate the friendship of a republic, actuated by a fellow feeling; than the alliance of a monarchy im­pressed with jealousy and apprehension. Are the inter­est and happiness of the United States connected with her territorial and political independence? Yes:—Then she ought rather to fortify herself by an alliance with a nation, whose territorial jurisdiction, and phy­sical characteristics, preclude the possibility of collisi­on; than attach herself to a nation whose language, manners and habits, facilitate the execution of every attempt to encroach; and whose territorial possessions are in an irritating and dangerous contact with our own. Are the interest and happiness of America to be promoted by an active employment of the vast store of materials of the first necessity, which nature has be­stowed on her; by the extension of her commerce; and by the freedom of her navigation? Yes:—Then she ought rather to court the countenance and protec­tion of a nation, whose occasions of envy are compa­ratively few;—whose temptations are to foster, not to counteract, our schemes of commercial opulence and enterprise:—and whose imperial glory and exist­ance do not depend upon a claim of universal mari­time [Page 112] superiority;—rather than consent to balk be­neath the baneful shade of an alliance with a nation, whose very existence is, probably, the tremendous stake in opposition to our prosperity: and whose em­braces, like the embraces of the tyrant's image, may be rendered the most effectual instruments of torture and destruction. Are the interest and happiness of the United States dependant on the cordiality of their u­nion, and the permanency of their government? And again—Do that cordiality and that permanency, de­pend upon the confidence and mutual good under­standing, which subsist between the people who form­ed the government, and the officers whom the people have appointed to administer it? Yes:—Then it would be the part of duty, as well as policy, in those officers to follow the unanimous sentiment of the people, by pre­ferring a liberal and faithful alliance with France, to a constrained and hypocritical alliance with Great Britain.

3. The first striking effect of the treaty, to endanger the interests, and disturb the happiness of the United States, may be detected by a geographical sketch of the cordon, or line of circumvallation, with which it enables Great Britain to fetter and enclose us. The proximity of Canada and the western posts, has here­tofore been a cause of great uneasiness; but that is a trifling source of vexation, compared with what we shall have in future to encounter. Suppose ten thou­sand radii were drawn diverging from the centre of the United States; not one of them could escape the conventional circle of British territory, jurisdiction and occupancy. Has an American occasion to travel to the east or the north? The barriers of Nova Scotia and Canada present themselves. Is it his wish to pe­netrate the great western wilderness? A new set of British posts will intercept his progress, even if he shall be allowed peaceably to pass the British colony within the precincts and jurisdiction of Detroit. Does busi­ness require him to cross, or float down, the Mississippi? [Page 113] He may evade the vigilance of the Spaniard, but he will find the eastern bank of the river monopolized by British traders, and probably protected by British gun boats. He is in hopes, however, to avoid all difficulty by a passage on the ocean? Alas! our Atlantic har­bours are crowded with prizes to British privateers, and our sea coast is lined with British cruisers! Yet, let us for a moment imagine, that this ill fated traveller has surmounted his domestic obstacles, whither can he fly, to be emancipated from the foreign jurisdiction of Great Britain? In the West Indies, his cock boat is measured and steered, according to the scale and course prescribed by the treaty. In the East Indies he can hardly exchange a commodity, or make a single acquaintance, without the British license. In Europe, if, during a British war, he carries goods belonging to an enemy of Great Britain, they will be seized as prize; if he takes ship-timber, tar, rozin, &c. they are liable to be confiscated as con­traband; and if his cargo consists of provisions, the British may take it, by treaty, at their own market price!

One idea more about the boundary of the United States. Before the revolution, Great Britain had projected that general arrangement and division of her colonial possessions in America, which she has since, upon a smaller scale, carried into execution with re­spect to Canada. The territory then intended to be allotted to the government of the Canadas, was ex­tended by a line running along the northern bounda­ries of the eastern colonies, along the western boun­dary of Pennsylvania, and along the courses of the Ohio, into the Mississippi. Since we are left at a loss for a positive definition of the precincts and juris­diction of the western posts, as ceded by the treaty to the settlers under British titles, may we not conjecture, that Great Britain contemplates the territorial extent of her original project? Does not major Campbell's un­expected [Page 114] pretension, and the constant claim of the Indians, at the instigation of the British, to establish the Ohio as a boundary between them and the United States, give some countenance to such a conjecture?

4. But should an American, not stimulated by the desire of travelling into foreign countries, be content to prosecute the objects of his honest industry within the British territorial circle, bounding and constituting his own home, will his condition be much better than the condition of his itinerant fellow citizen? What with the establishment of British colonies and British warehouses; the naturalization of British land-hold­ers; and, in short, the unqualified admission of En­glishmen, owing allegiance to the British crown, throughout our lakes, rivers and territory, while we are excluded from their sea-ports, company lands, &c. &c. an American will hardly be able to find elbow­room for himself and his family. Their pecuniary capital being larger; their means being easier; their experience being greater; they most inevitably, under such circumstances, become our merchants, manufac­turers, farmers, &c. &c. They will import for us, in their vessels, all the products and fabrics of Europe, Asia and Africa: They will export for us, in their vessels, every article that our soil can furnish; our mer­chants will dwindle into clerks: our husbandmen will degenerate into the condition of the feudal villienage; and thus, in a short course of years, America will pro­bably exhibit the astonishing spectacle of a country possessed, cultivated, and enjoyed by aliens! The ancient inhabit­ants of Great Britain, in a similar manner, invited those Saxons to their island as friends and allies, who soon afterwards became their conquerors and masters.

5. In such a state of things, the interest and happiness of the United States must languish and expire! At first the American mind will be corroded, by contrast­ing the elevation of the guest with the depression of the host. A struggle will probably ensue; but the influence of wealth, and the patronage of extensive [Page 115] commercial and manufactural institutions, &c. will even divide the Americans themselves; and by dividing, capacitate the British settlers to rule them. Is this an idle phantom—a visionary suggestion? No!. For. is not a great part of our trade, at this moment, mono­polized by British subjects, under the mask of Ameri­can citizenship? Has not the influence of British credits, and British politics, already formed a consi­derable party in our government, and among our mer­chants? Disguise it as you will—let pride deny, and shame suppress the sentiment—still, it is too evident to every candid and discerning observer; that the only subsisting difference in the opinions and conduct of the citizens of America, arises from this fatal cause. Why, at the moment of reprobating self-created socie­ties for civil purposes, do we gladly see the formation of self-created societies for military purposes;—the city cohorts and Praetorian bands? Why are our merchants, who so anxiously called forth the voice of their fellow citizens in applauding the proclamation of neutrality, so circumspect and so torpid in giving their testimony about the treaty? How comes it, that amidst the acclamations of the fourth of July, the treaty is toasted in the little circle of English munufacturers, on the banks of the Passayik; and at the convivial ta­bles of the English emigrants on the plains of the Ge­nesee? How comes it that every man who prefers France to Great Britain—republicanism to monarchy,—is denominated Antifederalist Jacobin, Disorganizer, Misorea [...]t, &c. while men of another humour arrogantly and exclusively assume the titles of Federalists, Friends to order, &c. &c.? But let every honest American reflect seriously and seasonably, upon the means of promoting the interest and happiness of the United States, and he will disdain, as well as dread, to augment, by the adventitious force of treaties, that paramount interest, which Great Britain has already insidiously acquired in our commerce, navigation, manufactures, territory, and government.

[Page 116]6. Besides the injury eventually to be apprehended from these causes, the treaty is calculated to impair the interest and happiness of the United States, by pro­ducing an immediate and violent concussion in the federal atmosphere. For,

It ransacks the archives of our revolutionary trans­actions; and rejudges the solemn judgments of our courts of justice.

It condemns individuals to the payment of debts, from which they had previously been discharged by law.

It makes the government of the union responsible for the contracts of private citizens, and the defalca­tions of bankrupts.

It disregards the freedom of our commerce and navigation; and it restrains the use of our staple com­modities.

It does not exact a just indemnification for the de­tention of the western posts.

It does not require the payment, stipulated by the preceding treaty, for the value of the negroes carried off at the close of the war.

It does not provide for the freedom and safety of our seamen, in their intercourse with the British do­minions.

Let any one of these propositions be separately analysed, and sufficient cause will be found to excite and justify popular dissatisfaction; but view them combined, and the mind is shocked with an apprehen­sion, that the ratification of the treaty, may be the death­warrant of the union!

VIII. The British treaty and the constitution of the United States are at war with each other.

1. Self-preservation is the first law of society, as well as of individuals: It is the radical principle of all political compacts. Nations (says Vattel) are bound to guard their own preservation, and to pursue [Page 117] their own perfection. We have incessant opportunities, indeed, of observing the operation of this universal rule; in animals of instinct, as well as in animals of reason; in the world of things, as well as in the world of beings.

2. Self-preservation, however, is a relative idea: it relates to the nature of the animal; to the consti­tution of the society. A man may lose his human character, without destroying his vital existence; and a government may be changed in its essence, without being subverted in its forms.

3. So, likewise, without open assault or positive violence, the sources of animal life may be poisoned, by the imperceptible contaminations of a luxurious habit: so, without the aid of terror or force, the legitimate foundations of government may be under­mined, by the insidious encroachment of the rulers, and by the sedative acquiescence of the people. Go­vernments, indeed, have too generally proved to be a kind of political chrysalis, passing, by progressive trans­mutations, from the grub of pure democracy, to the butterfly of absolute monarchy.

4. But it will not yet be denied in America, that as the people have the sole right to constitute their government, the rule of self-preservation requires, that the government should be maintained, in practice as well as in theory, such as they have constituted it. To render it, by any construction of the written articles of our social compact, other than a republican govern­ment, would be as fatal a subversion, as daring usurpa­tion, or military conquest, could atchieve. For, what real difference does it make to a nation, whether its constitution is seized upon by an enterprizing indi­vidual, as in the Swedish revolution of 1770; or overthrown by a triumphant warrior, as in the recent extinction of the Polish monarchy; or voted out of doors, as in the disorganizing edicts of the long par­liament of England? Thus, likewise, for one depart­ment of the government to assume the authority of [Page 118] another; or, by constructive amplifications of its own jurisdiction, so to monopolize the attributes of go­vernment, as to render the other departments useless and inefficient, must ever be deemed an effectual sub­version of any constitution. The mode of distribut­ing and organizing the powers of government, as well as the consideration of the nature and extent of the powers to be delegated, essentially belongs to the people; and in the body politic, as well as in the body natural, whenever any particular member absorbs more than its allotted portion of the aliment, that is de­stined to vivify and invigorate the whole, debility and disease will infallibly easue. After the emperors had usurped the functions, privileges and powers of the senate, and of the popular magistrates of Rome, they preserved the formalities of the Commonwealth, but they trampled on the liberties of the people. Though the parliaments of France had long been deprived of every deliberative faculty, as the representatives of the people, they were summoned to the last, as the ministerial officers of the monarch, for the purpose of registering his edicts.

5. The government of the United States, being then theoretically a republican government, and with great propriety denominated a government of departments, let us proceed to examine how far the principles of self-preservation, and the duty of pursuing the perfection of our political system, are involved in the ratification of the projected treaty with Great Britain.

The second section of the second article of the constitution says, that "The president shall have power, by and with the advice and consent of the senate, to make treaties, provided two thirds of the senators present concur."

To the exercise of this power no immediate qua­lification, or restriction, is attached: but must we therefore suppose that the jurisdiction of the president and senate, like the jurisdiction ascribed to the Bri­tish parliament, is omnipotent? To place the author­rity [Page 119] of our president and senate on the same footing with the prerogative of the king of Great Britain, will not be commensurate with the objects to which the treaty extends. It must be remembered, that the treaty of peace, by which the rights of sovereignty and soil were ceded by the king of Great Britain to the United States, was negociated and ratified under the positive sanction of an act of parliament: And it is expressly stated in Vattel, that the king of Great Britain cannot, by treaty, confer the rights of citizen­ship on an alien, B. I. c. 19. s. 214. Now, Mr. Jay's treaty does both these things (as will be hereafter de­monstrated) without the intervention of the legislative authority of the union.

6. The consequence of admitting this unqualified claim to omnipotence, in transacting the business of the nation, would be so hostile to the principle and preservation of our government, that it is an indispen­sable duty ( obsla principiis) to contravert and resist it. Whenever the president and two-thirds of the se­nate shall be desirous to counteract the conduct of the house of representatives; whenever they may wish to enforce a particular point of legislation; or whenever they shall be disposed to circumscribe the power of a succeeding congress; a treaty with a foreign nation, nay, a talk with a savage tribe, affords the ready and effectual instrument for accomplishing their views; since the treaty or the talk will constitute the supreme law of the land. That such things may happen, let the history of Mr. Jay's mission and negociation testify.

7. If the extraordinary treaty-making power is pa­ramount to the ordinary legislative power—supersedes its exercise—and embraces all its objects; let us en­deavour to trace whither the proposition will carry us.

The fifth article of the constitution vests a power in two-thirds of both houses of congress, to propose amendments to the constitution.

Let us suppose that a defect in our judiciary, or in any other department, operated injuriously to a fo­reign [Page 120] nation,—could the senate, and president, unit­ing with that foreign nation, and excluding the house of representatives propose an amendment upon the subject? If they could by these means originate, might they not by other means effectuate, alterations in the funda­mental points of our government; and make, in fact, a new constitution for us?

By the eighth section of the first article, congress is empowered to borrow money on the credit of the Unit­ed States.

Suppose it was deemed expedient to subsidize Por­tugal, instead of building frigates, to keep the Alger­ines within the streights of the Mediterranean:—Could two-thirds of the senate and the president, ei­ther borrow, or guarantee a loan for that porpose by treaty?

The same section empowers congress to establish uni­form laws on the subject of bankruptcies.

Suppose Great Britain had remarked, that, as her subjects were constantly the creditors of the citizens of the United States, she was deeply interested in our system of bankrupt laws:—Had the president and two-thirds of the senate, a right to incorporate such a system with the projected treaty?

The same section empowers congress to coin money, to regulate the value thereof, and of foreign coin, and fix the standards of weights and measures.

Suppose the Birmingham manufacturers offered, on a cheap plan, to supply us with coin? Suppose Great Britain were pleased to insist upon our receiving her guineas at their English value, and upon our promis­ing not to sweat, deface, or clip them, according to the current practice of the union? Suppose France were desirous that we should adopt the fanciful project of that republic, respecting weights and measures?—Could all, or any, of these propositions be acceded to and established by treaty?

The ninth section of the same article declares "that the migration or importation of such persons as the [Page 121] states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year eighteen hundred and eight."

Suppose Mr. Wilberforce had negociated on the part of Great Britain, instead of Lord Grenville, and had made the prohibition of the importation of slaves in­to the United States, in the year eighteen hundred and eight, a sine qua non:—Could the president and two-thirds of the senate admit and legitimize the sti­pulation by treaty?

By the constitution congress has the power to con­stitute tribunals inferior to the supreme court.

Suppose Great Britain desired, for the future, as well as for the past, to establish a tribunal of her own judges in America, for deciding controversies between British subjects and American citizens:—Could this be accomplished through the medium of a treaty?

By the constitution congress is endowed with the power of declaring war.

Suppose Lord Grenville had insisted, and Mr. Jay had approved, that the treaty should be an offensive and defensive alliance; and that we should forthwith join Great Britain in her hostilities against France:—Could the president and senate thus negociate us into a war?

By the constitution it is declared, "that no person holding any office, &c. under the United States, shall, without the consent of congress, accept of any present, emolument, office or title of any kind whatsoever, from any king, prince, or foreign state."

Suppose our envoy had been offered a present or a title by the British monarch—would the consent of the treaty be tantamount to the consent of congress, for the purpose of approving and justifying his accep­tance?

By the constitution it is provided that all bills for raising revenues, shall originate in the house of repre­sentatives; and that no money shall be drawn from [Page 122] the treasury, but in consequence of appropriations made by law.

Suppose Great Britain had stipulated, that as soon as the commissioners have fixed the sum due to her sub­jects for old debts, the president should draw a warrant for the amount, and that the same should be paid out of all public monies in the treasury of the United States, prior to the payment of any antecedent appro­priation by law:—Would this be the proper subject for a treaty, or for an impeachment?

8. But fatigued and disgusted with displaying, thus hypothetically, the monstrous consequences, which will inevitably flow from the jurisdiction, claimed on be­half of the president and senate, to bind the United States by any treaty, and in all cases whatsoever; let us parti­cularly examine the numerous and extravagant infractions of the constitution, which the projected treaty actually commits. Recent as is the establishment of the federal constitution, it is, indeed, to be lamented, that the possibility of violating it, is not a matter of floating and fluctuating popular opinion; but a matter suscep­tible of fixed and positive proof. For, who does not recollect, that a bill touching the fundamental princi­ple of the government (its representative quality) af­ter having passed both houses of congress, was declared by the president to be unconstitutional; and, therefore, unde­serving of his official approbation and signature? Who can forget that a law touching the essential properties of the judicial department of our government, after being ratified by every organ of legislative authority (the president, senate, and house of representatives) was declared by chief justice Jay, and his associate judges, to be unconstitutional; and, therefore, incapable of being ex­ecuted and enforced? With such authoritative prece­dento (and there are many others that might be ad­duced from the transactions of individual states) of the possibility of deviating from the rule and meaning of our constitution, are we to be damned for political he­resy, merely because we doubt, or deny the infallibility [Page 123] of Mr. Jay's negociating talents? And must every man be accursed (to use for a moment the intolerant language of the late secretary of the treasury, in his character of the New York Camillus) who thinks that the American envoy and the British minister were at least as likely to mistake, or misconstrue, the constitutional boun­daries of the American government, as the president, se­nate, and house of representatives of the United States? It is certainly, upon the whole, more candid, and more convincing, to put "the defence" of the treaty upon the true trading ground, taken by the New York chamber of commerce;—to wit,— "that we have made as good a market at such pedlars had a right to expect on the royal exchange; and that we cannot afford to fight, though we must submit to be plundered."

9. Let us proceed, however, in examining the points on which the British treaty is at war with the American constitution.

(1.) By the constitution of the United States, the JUDI­CIAL POWER is vested in one supreme court, and in such inferior courts as the congress may from time to time establish; and its jurisdiction embraces, among other things, "controversies between a state, or citizens thereof, and foreign states, citizens, or subjects."

By the treaty a tribunal, other than the supreme court, or any inferior court established by congress, is erected, with a jurisdiction to ascertain the amount of any losses or damages sustained " by divers British mer­chants and others, his majesty's subjects, on account of debts, &c. that still remain owing to them by citizens or inhabitants of the United States:" And it is agreed, that in all such cases where full compensation for such losses and damages cannot, for whatever reason, be actually had and received by the said creditors, in the ordinary course of justice, the United States will make full and complete compensation, for the same, to the creditors," &c.

Remarks. I. It is the right of every independent nation to establish and maintain a judicial authority, [Page 124] co-extensive with its territorial possessions. The prin­ciple is indisputable, and it is incidentally recognized by Lord Mansfield and other great lawyers, in the celebrated controversy between the king of Prussia and Great Britain, relative to the Silesia loan. 2. The constitutional tribunals of the United States were adequate to the administration of complete justice, in the very cases for which the treaty provides a special tribunal. 3. If it is possible in any case, with any nation, and at any time, to stipulate, by treaty, for the erection of a tribunal, in order to ascertain and liquidate debts due from citizens to foreigners, may it not be done in every case, with every nation, and at every time? 4. Is not the court of commissioners, in effect, an high court of errors and appeals for the United States, with power to revise and reverse every judg­ment, that has been given since the year 1783, either in a federal or a state court, in every cause between a British subject and an American citizen? 5. Wherever the recovery of the principal debt has been protracted by the forms of law—wherever there has been as abatement of interest, by the compromise of the parties, or the verdict of a jury—wherever the debtor has become insolvent; this high court of commissioners may sustain an appeal, and can award damages for the detention or loss of the debt. It is true, the treaty adds, that "this provision is to extend to such losses only as have been occasioned by lawful impediments," but the extent of the discretion of the commissioners, in adjudg­ing what constitutes a lawful impediment, is without limitation or controul; and the nature of the evidence, by which their minds are to be informed, is without rule or definition; since (in the language of the treaty) it may be "either according to the legal forms now respectively existing in the two countries, or in such other manner as the said commissioners shall see cause to require or allow." Thus, not only erecting a court un­known to our constitution, but admitting a species of proof, not recognized by the legal forms of our country. [Page 125] 6. Let us appeal to Mr. Jay himself, upon the con­stitutionality of such proceedings. By an act of con­gress, the judges of the circuit courts were required to take, and report to the secretary at war, certain proofs in the case of invalids and pensioners. The judges refused (as we have already noticed) to exe­cute the act, declaring it to be unconstitutional, as well on account of the nature of the duty imposed upon them, as on account of the revisionary power, which was vested in the secretary at war. By the treaty, the president and senate will appoint commissioners, in conjunction with the king of Great Britain, to hold a court of appeals from every court in the union; and to determine judicial questions, upon private controversies, between British subjects and American citizens. Now, let us ask, whether it is more unconstitutional for the legislature to impose new and extraordinary du­ties upon a court, existing according to the constitution, than for the executive to create a new and extraordina­ry tribunal, incompatible with the constitution; inasmuch as it can only act upon the alienation of the jurisdic­tion, previously and exclusively vested in our domestic courts;—the jurisdiction of hearing and deciding ju­dicial questions, upon private controversies, between Bri­tish subjects and American citizens? 7. But this is not the only infraction of the constitution, involved in the arrangement alluded to— the obligation of private contracts is transferred from individuals to the public. The framers of the constitution, in declaring that "all debts contracted and engagements entered into, before its adoption, shall be as valid against the United States under tne constitution, as under the confede­ration," could hardly anticipate, that they charged the treasury of the union with the payment of all the outstanding debts of the individual citizens of America! And when congress was vested with a power "to lay and collect taxes, to pay the debts and provide for the common defence and general welfare [Page 126] of the United States;" it certainly was never con­templated, that the government of America became the insurer of every British merchant, against litigi­ous delays, and fraudulent or accidental bankrupt­cies! It cannot be suggested that Great Britain acts in a similar manner upon our complaints of the spo­liations on our trade. For, the injury that we have sustained, originated in an act of government;—the in­jured individuals are, in the first instance, bound to apply to the British courts of justice;—and the public are only responsible in the last resort, for the individual aggressors,

(2.) By the constitution of the United States, congress is empowered to establish an uniform rule of naturaliza­tion; and that power has accordingly been exercised in an act that provides, among other things, that "no person heretofore proscribed by any state, shall be ad­mitted a citizen, except by an act of the legislature of the state in which such person was proscribed."

By the treaty, all the British settlers and traders, within the precincts or jurisdiction of the western posts, are allowed an election either to remain British subjects, or to become citizens of the United States: And it is agreed, "that British subjects who now hold lands in the territories of the United States, may hold, 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, shall, so for as may respect the said lands, and the legal remedies incident thereto, be regarded as aliens."

Remarks. Is not the treaty at war with the constitu­tion in this great and delicate point of naturalization? A British colony is, ipso facto, by the magic of Mr. Jay's pen, converted into an American settlement! Eve­ry British subject, who now holds lands (and when we recollect the recent speculations for the sale of lands, how can we calculate the extent of the adoption?) is, without ordeal or restraint, endowed with all the rights of a native American! If it is possible by treaty to give the rights of property to aliens, may not the ci­vil [Page 127] rights of the community be disposed of by the same potent instruament? If it is possible by treaty to confer citizenship on the British garrison at Detroit, and its contiguous settlers, why may we not, by treaty, also confer an instantaneous citizenship on every slight of emigrants, that shall hasten to our shores from Ger­many or Ireland? It may not be amiss here to inti­mate a doubt of the power of the federal government to regulate the tenure of real estates: it is no where ex­pressly given, and therefore, cannot be constitutional­ly implied; and it seems to be among the necessary and natural objects of state legislation. But let us presume (what is highly probable) that there are a­mongst the settlers within the precincts or jurisdiction of the western posts, certain proscribed persons;—can the treaty, in spite of the law, restore them to the rights of citizenship, without the authoritative assent of the state that proscribed them? Again:—Is every man whose estate was liable to confiscation as a traitor, or as an alien, in consequence of the revolution, en­titled now to bold lands as a native? The Fairfax claim in Virginia; the claim of the Penns in Pennsyl­vania; and the claims of Galloway, Allen, &c. &c. may hence derive a dangerous principle of resuscitati­on. Look to it well.

(3.) By the constitution, congress is empowered to re­gulate commerce with foreign nations.

By the treaty, the commerce of the United States, not only directly with Great Britain, but incidentally with every foreign nation, is regulated.

Remarks. There is not a source of legislative juris­diction, upon the subject of commerce, which is not absorbed by this executive compact. The power of re­gulating commerce with foreign nations, is expresly and specifically given to congress: Can a power so giv­en to one department, be divested by implication, in order to amplify and invigorate another power, given in general terms to another department? But more of that hereafter.

[Page 128](4.) By the constitution, congress is empowered to re­gulate commerce with the Indian tribes.

By the treaty, it is agreed that "it shall at all times be free to British subjects, &c. and also to the Indians dwelling an either side of the boundary line of the United States, freely to pass and repass by land or inland na­vigation, into the respective territories and countries of the two parties on the continent of America, &c. and freely to carry on trade and commerce with each other." The treaty, likewise, provides, that " no duty of entry shall ever be levied by either party on peltries brought by land, or inland navigation into the said territories respectively; nor shall the Indians passing or repassing with their own proper goods and effects, of whatever na­ture, pay for the same any impost or duty whatever."

Remarks. It is easy to perceive that the stipula­tions, in favour of the Indians, were introduced at the instance of Great Britain; and her motives are not even attempted to be disguised. Her traders will boast of the favor and security, which she has compelled Ame­rica to grant to the Indians; and so engage their confi­dence and attachment; while the privilege of free pas­sage and the exemption from duties, will inevitably throw the whole fur trade into the hands of the British. The surrender of the western posts, under such circumstances, can produce no loss to Great Britain, and will certainly be of no advantage to America: It will not add a shilling to the profits of our Indian traffic; nor insure us a moment's suspension of Indian hostilities! But to prosecute our constitutional enquiry—what right is these by treaty to regulate our commerce with the Indian tribes? Whenever a treaty of peace and amity has here­tofore been concluded with the Indians, it has been the constitutional practice of the president, to call on congress to regulate the commerce with them. Such calls were to­tally unnecessary, if the same thing might as well and as lawfully be done by treaty; and if it could not be done by treaty in the case of the Indians, neither could it be done by treaty in the case of a foreign nation: For, [Page 129] both are expressed in the same terms, and included in the same member of the section. "Congress shall have power (says the constitution) to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." What right is there by treaty to declare, that no duty of entry shall ever be levied by either party on peltries, &c. (and a similar promise is made in cases that more immediately affect Great Britain) since congress has the sole power to lay and col­lect taxes, duties, &c. to pay the debts, and provide for the common defence, and general welfare of the Uni­ted States? If we may, negatively say, by treaty, that certain duties shall not be laid, may we not, affirm­atively, say, by treaty, that certain other duties shall be laid? And then what becomes of that part of our constitution, which declares, "that all [...] for raising revenue shall originate in the house of representatives?" But let as imagine for a moment, that it is in the power of the president and senate to regulate our commerce with the Indian tribes; ought [...] the regulation to be made with the Indians themselves? Why suffer Great Britain to negociate and stipulate for Indians actually resid­ing within the territory of the United States? Is such a concession consistent with the dignity and inde­pendence of our government—with the peace and in­terest of the nation? Let Mr. Randolph's letter to Mr. Hammond, on the conduct of General Simcoe and Major Campbell be referred to, as an answer to this question. It is not, at present, within reach to be quoted; but its contents were too important to have already escaped the memory of any reflecting American.

(5.) By the constitution congress is empowered to de­fine and punish piracies and felonies committed on the high seas, and offences against the law of nations.

By the treaty the definition and punishment of cer­tain offences, not known by any law of the union, is declared and permitted; to wit—Ist, For accepting commissions or instructions from any foreign prince or [Page 130] state, to act against Great Britain. 2d, For accept­ing any foreign commission or letter of marque for arming any privateer; &c. Great Britain may punish an American citizen as a pirate. 3d, For not treat­ing British officers with that respect which is due to the commissions they bear, and for offering any insult to such officers, the offenders shall be punished, as disturbers of the peace and amity between America and Great Britain. 5th, For making a prize upon the subjects of Great Britain, the people of every other belligerent nation (except France) shall be punished by a denial of shelter or refuge, in our ports.

Remarks. To define crimes, and apportion punish­ments, is the peculiar province of the legislative autho­rity of every free government: but it is obvious from the foregoing recapitulation, that the executive autho­rity has likewise encroached upon that province, by the instrumentality of its treaty-making power. Can a citizen be surrendered by treaty to all the pains and penalties of piracy? Then by treaty, he might be sub­jected to all the pains and penalties of treason. It is true, that the constitution reserves to itself the exclu­sive right of declaring what shall constitute treason; but it is equally true, that it bestows on congress the exclusive right to define and punish piracy: and the in­vasion of the right to define in one case, is as unconsti­tutitonal as the invasion of an actual definition in the o­ther. But what legitimate authority can a treaty sug­gest, in order to justify the restraint upon that right of expatriation, which congress itself has not ventured to restrain, while legislating on subjects of a similar class? It is not intended to convey the slightest doubt of the power and propriety of controuling our citi­zens in their conduct towards foreign nations, while they are within the reach of domestic coercion: but to prohibit an American freeman from going whither he pleases, in quest of fortune and happiness—to restrict him from exercising, in a foreign country, and in a fo­reign service, his genius, talents and industry; to de­nounce [Page 131] him for seeking honor, emolument or instruc­tion, by enlisting within the territory and under the banners of another nation;—to do such things, is to condemn the principle of our own policy, by which we invite all the world to fill up the population of our country: To do such things is, in fact, to prostrate the boasted rights of man. It it hardly worth a pause to ask, what proportion of respect is due to the commission of a British officer? and what degree of punishment the refusal or neglect to pay it, may deserve?

(6.) By the constitution it is declared, that "no tax or duty shall be laid on articles exported from any state."

By the treaty "it is expressly agreed and declared that the United States will prohibit and restrain the carrying any 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."

Remarks. This is an extract, it is true, from the twelfth article of the treaty; but it equally serves to show the probability of attempts to violate the consti­tution. Besides, the advocates for the treaty are ha­sty and premature, when they desire to throw the twelfth article entirely out of consideration: fo [...], by that proposition, though they should save the treaty, they effectually destroy its author. They are hasty and pre­mature for another reason: the twelfth article is to be suspended for the declared purpose of negociating something as a substitute; and, therefore we must confider its principle, in order to ascertain, how far any modification of it could be rendered palatable. But, on constituti­onal ground, when it is declared, that no duty shall by law be laid on articles exported from any state, is it not absurd, or wicked to suppose, that by treaty the exportation of the articles themselves can be prohibited? The obvious intention of the constitution is to encou­rage our export trade;—the immediate effect of the treaty is to obstruct and annihilate it.

(7.) There are many other points in which a collision occurs between the constitution and the treaty, but to which [Page 132] the scope and nature of these strictures wil not admit a full attention. It may be cursorily remarked, how­ever, that a cession of territory, which will, probably, be the consequence of settling [...] the boundaries of the United States, and even the actual cession of the precincts of the western posts, though in favor of indi­viduals, are, subjects for serious reflection. If a part of the United States may be ceded—if a whole state may be ceded, what becomes of the guarantee of a republican form of government to every state? The propriety of presenting this consideration to the pub­lic mind, will be allowed by those who know, that, in the course of [...] senatorial debate, the RIGHT of CED­ING BY TREATY a WHOLE state, nay, ANY NUMBER of the states, short of a majority, was BOLDLY ASSERTED, and STRENUOUSLY ARGUED!!!

(8.) It may not be amiss, likewise, to add, that our government has no more right to alienate powers that are given, that it has to usurp powers that are not given. For instance, an act of congress could not (and can a treaty?) surrender the right of sequestering the property of a hostile nation—the right of giving com­mercial preferences to a friendly nation—and the right of suspending a ruinous intercourse with any nation? Great clamor; have been raised against the exercise of these rights; and, undoubtedly, they should only be used in the last resort; but they are rights recognized by the law of nations; and they are rights often essen­tial to the duties of self-preservation, and sometimes necessary to the accomplishment of reciprocal justice.

10. Having taken this review of the actual warfare between the constitution and Mr. Jay's diplomatic work, and of the destructive consequences of the claim of the executive, to bind the United States, in all cases whatsoever, by treaty; let us recur to the position with which the present feature was introduced, namely, the duty of preserving the constitution, such as it was made and intend­ed by the people, and we shall find, by a faithful com­parison of theory with practice, that the government of [Page 133] the United States may [...] [...]nsformed through the [...] of the treaty-making power, from a republic to an oligar­chy—from a free government of several departments, le­gislative, judicial and executive— to the simple aristocra­tical government of a president and senate.

11. This fatal effect, however, of converting our government from the system which the people love, to a system which they abhor,—from what it was made in theory, to what it was never intended to be made by practice—can only proceed from error or corrupti­on. It would ill become the writer of these strictures, who so freely, but it is hoped, so fairly, expresses an opinion, to impute to any man or set of men, a sini­ster and traiterous design against the constitution of our common country. The denunciations fulminated by the New York Camillus, and his small circle of co­adjutors, harmlessly expend themselves in the violence of their explosion: like the denunciations of the Tiara, they spring from an arrogant claim of infallibility; and like them too, will only excite the derision or the disgust of an enlightened nation. Is it credible, that every ci­tizen of the United States, from Georgia to New-Hampshire, who reprobates Mr. Jay's treaty, must either be an enemy to our government, or a rancorous in­cendiary? Is it to be presumed that no man can utter a sentence of disapprobation respecting the principles of the treaty, without feeling a sentiment of animosity, respecting the person of the negociator? Are we real­ly such slaves to faction;—so trammelled with party;—so insensible to virtue, truth, and patriotism;—that every thought which we conceive, every expression which we use, on this momentous occasion, must be connected with the possible (but it is ardently hoped the distant) event, of electing a successor to the present chief magistrate of the union? Yet, such are the base and fordid motives, passionately and wantonly ascribed by Camillus and the scanty troop of advocates, who follow him in supporting the treaty, to the great host of the [Page 134] American people, rising (as it were) in mass to con­demn it.

If it could be thought a convenient, a reputable, or a necessary task, how successfully might the argument of recrimination be employed! Who, it could be ask­ed, are the persons that support the treaty? What are the motives that actuate them? Is it surprising that the men who advised the treaty, or that THE MAN who composed it, should endeavour, by the force of ingenuity, art, or defamation, to rescue it from ge­neral malediction and impending ruin? Was it not to be expected, that a faction, uniformly eager to esta­blish an alliance with Great Britain, at the expense of France, would strenuously attempt to procure the ra­tification of any instrument, calculated to accomplish that object? Does not consistency require from him, who openly projected in the Federal convention, and from those, who secretly desire in the execution of public offices, the establishment of an aristocracy, under the insidious title of an energetic scheme of government, that they should approve and countenance every practical appli­cation of any medium, by which the barriers that sepa­rate our constitutional departments, may be over­thrown, and the occasions for interposing the popular sanction of the legislature, may be superseded or avoided? Is it not natural, that British merchants and British agents—is it not necessary, that British debtors and British factors,—should clamorously unite, or ta­citly acquiesce, in the applause bestowed upon a com­pact, which, however detrimental to America, is be­neficial to Great Britain—the nation of chief import­ance to the allegiance and affections of some of those characters, and to the opulence and subsistence of all? Or, if the paltry idea of an electioneering plan must be forced upon our consideration, is it not, at least, as like­ly, that the party, which aims at making a president of Mr. Jay, will, on that ground alone, exert itself in "The Defence" of the treaty, as that the party, which is de­sirous of conferring the same elevated office on Mr. [Page 135] Jefferson, will, for no other reason, attempt to blast the fruits of his competitor's negociation? Consider­ing, indeed, that Camilius himself, by confining his "Defence" to the treaty as advised to be ratified by the senate, virtually abandons the treaty as negociated and concluded by Mr. Jay:—and also, considering that a part of Camillus's defence of the present treaty arises from the ambiguity that Mr. Jay had left in the former treaty with Great Britain (upon which, however, his character as a negociator was founded) we might be led to suppose, that Mr. Jay's pretensions to the wis­dom of a statesman, and to the station of a president, were not deemed, even by his own party, to be any longer tenable; but that Camillus still condescends, on the obvious presumption of a subsisting rivalship, to impeach the ministerial character, and to depreciate the official performances, of Mr. Jefferson.

But why should we arbitrarily abuse, instead of en­deavouring rationally to convince each other? We all have the same right, from natural and from social law, to think and to speak: it is true, that we do not all possess the same powers of reason, nor the same charms of eloquence; but when men are on an equality in the possession, as well as in the right of exercising, those en­dowments, there can be no amicable way of adjusting a difference of opinion, but that which is adopted for adjusting all the other differences of a free people— an appeal to the voice of the majority! Now, let it be allowed (and so far ought to be allowed, but no far­ther) that Mr. Jay, who negociated the treaty; the twenty members of the senate, who assented to a con­ditional ratification; and Mr. Hamilton, and the New York chamber of commerce, who have appeared in support of it (an enumeration that comprises, it is believed, all that have hitherto avowed a perfect appro­bation) are in the possession of as great a portion of information, integrity and talents, as a like number of citizens, selected for their approved wisdom, virtue and patriotism, from the aggregate of those who have [Page 136] publicly condemned the treaty; and then let it be candidly answered, which scale in the balance must, of right, preponderate? After such a selection, there will still remain the great body of the community in opposition to a ratification; and, as members of that community, thousands of individuals who honorably served during the late war, in the field and the cabinet, and many of whom at this moment serve with zeal, fidelity and wisdom in the various departments of go­vernment. Is it not then the symptom of an arrogant vanity;—of a tyrannical disposition;—to stigmatize such an opposition to a projected measure, with the name of "Faction?" The violence offered to Mr. Hamilton's person in New York, and to Mr. Bing­ham's house in Philadelphia, have justly excited the indignation of every sincere republican: but even that reprehensible and odious conduct is not to be com­pared to the enormous guilt of endeavouring to force the opinion of a few individuals upon the people, as the ultimate test of political truth; and to cast an odium upon the late, conventions, in which (according to the language of the constitution) "the people were peacea­bly assembled, to petition the government for the redress (or rather the prevention) of a grievance."

But let the pardon of the reader be granted for this digression; and we will return to a delineation of the feature that lies before us.

12. Declining, then, either to create, or to fol­low, a bad example, let us ascribe the deviation from the principles of our constitution to an erroneous con­struction, rather than to a wilful perversion; and let us exert our skill in averting the evil that threatens, rather than indulge our resentment in convicting those who labour to produce it.

Our government, therefore, being a government of departments, it is (as we have already observed) incon­sistent with the duty of self-preservation; or, in other words, it must proceed from an error in construction; that one department shall assume and exercise all, or [Page 137] any, of the powers, of all, or any, of the other depart­ments. "The departments of government (to adopt the elegant figure used by an excellent judge in a late admirable charge to a Philadelphia jury) are planets that revolve, each in its appropriate orbit, round the constitution, as the fun of our political sys­tem." Thus, if the legislative, executive, or judicial departments shall encroach, one upon the orbit of the other, the destruction of the order, use, and beauty of the political system, must as inevitably ensue, as the destruction of the order, use and beauty of the planetary system would follow, from a subver­sion of the essential principles of attraction, repulsion and gravity.

13. It was necessary, however, that the power of making treaties with foreign nations, should be vested in one of the departments of the government: but the power of making treaties is not, in its nature, paramount to every other power; not does the exercise of that pow­er naturally demand an exclusive jurisdiction. A nation may carry on its external commerce without the aid of the treaty-making pówer; but it cannot manage its do­mestic concerns without the aid of the legislative power: the legislative power is, consequently, of superior im­portance and rank to the treaty-making power. A­gain:— The legislative power, exercised conformably to the constitution, must be direct, universal, and conclusive in its operation and force upon the people; but the treaty-making power is scarcely in any instance inde­pendent of legislative aid to effectuate its efforts, and to render its compacts obligatory on the nation. A memorable occurrence in the English history will serve to illustrate both of these positions: It is the fate of the commercial part of the famous treaty of Utrecht, con­cluded between France and England in the year 1712. "The peace (says Russel in his "history of modern Europe," vol. 4. P. 457) was generally disliked by the people, and all impartial men reprobated the treaty of [Page 138] commerce with France, as soon as the terms were [...]. Exception was particularly taken against the 8th and 9th articles, importing "That Great Britain and France should mutually enjoy all the privileges its tra­ding with each other, which either granted to the most fa­vored nation; that all prohibitions should be removed, and no higher duties imposed on the French commodities than on those of any other people." The ruinous tendency of those articles was perceived by the whole trading part of the kingdom. It was accordingly urged, when a bill was brought into the house of commons for con­firming them, that the trade with Portugal, the most beneficial of any, would be lost, should the duties on French and Portuguese wines be made equal, &c. &c. These and similar arguments induced the more moderate tories to join the whigs, AND THE BILL WAS REJECTED BY A MaJORITY OF NINE VOTES." In relating the same transaction, Smollet's history of England (vol. 2. p. 242, 246) contains some passages too remarkable to be omitted on the present occation. "Against the 8th and 9th articles (says the historian) the Portuguese minister presented a memorial, declaring, that should the duties on French wines be lowered to the same level with those that were laid on the wines of Portugal, his master would renew the prohibition of the woolen ma­nufactures, and other products of Great Britain. Indeed, all the trading part of the nation exclaimed against the treaty of commerce, which seems to have been concluded in a hurry, before the ministers fully understood the nature of the subject. This precipitation was owing to the fears that their endeavours after peace would miscarry, from the intrigues of the whig faction, and the obsti­nate opposition of the confederates." "Another bill (continues the same writer, in a subsequent page) being brought into the house of commons, for ren­dering the treaty of commerce effectual, such a number of petitions were delivered against it, and so many solid arguments advanced by the merchants, who were ex­amined on the subject, that even a great number of tory [Page 139] members were convinced of the bad consequence it would produce to trade, and voted against the minister on this oc­casion."

Perhaps there cannot, in the annals of all the na­tions of the earth, be found two cases more parallel than the one which is thus recorded in the English history, and the one which at present agitates the American [...]ation.—1. All impartial men reprobated both treaties as soon as the terms were known. 2. The admission of the opposite contracting party to an unqualified participation in trade, with the most favored nation, is, in both cases, a principal source of complaint. 3. The removal of all prohibitions, and the surrender of the right to impose higher duties on the commodities of the opposite contracting party, than on those of any other people, are, in both cases, condemned. 4. The good and the intelligent of all parties have united their influence, in both cases, to prevent a confirmation of articles of so ruinous a ten­dency. 5. The whole nation, in both cases, have ex­claimed against the treaty. 6. Both treaties were con­cluded in a hurry, before the ministers fully under­stood the nature of the subject. 7. Innumerable peti­tions (and who will NOW deny the propriety of ex­ercising the American right to petition?) were deli­vered against both treaties. 8. And the Portuguese minister declared in effect, of the treaty of Utrecht ( mutatis mutandis) what the minister of France will, probably, declare of the treaty of London (but what America surrenders the right of saying at any time to Great Britain) "If you ratify your alliance with the British, you must surrender your alliance with France." If such a wonderful similarily of circumstances con­cur in the negociation, terms, and reception of these me­morable instruments, let us hope that the guardian an­gel of American liberty and prosperity, has, also, doom­ed them finally to experience a merited similarity of fate!

14. But having thus shown, that even in Great Bri­tain the treaty-making prerogative is neither paramount [Page 140] nor exclusive (though the generality of judge Black­stone's expressions on the subject would, perhaps, lead to that preposterous conclusion) we might be satisfied to presume, on general principles, that so high a claim of jurisdiction could not be maintained, at least, on the part of our president and senate. Yet, let us endeavour, by the infallible test of the constitution, to put the matter, if possible, beyond doubt and con­troversy; and having established that each department of the government should be confined to its proper orbit, let us endearour to ascertain, what that orbit is, in relation to the treaty-making power.

(1.) The power of the president and senate to make treaties, is given (as we have already stated) in general and unrestricted terms.

But the powers given to congress (except in an in­stance to be hereafter noticed) are definite in their terms, and appropriated in their objects.

Let us ask, then, by what rule of construction a power primarily and specifically given to one body, can be assumed and exercised by another, to which, in a subsequent clause, a mere general authority is given?

Upon the common law principles of construction, the specific powers would clearly, in such a case, be deemed a reservation and exception out of the general grant. But even according to a rule furnished by the constitution itself, the same result will be produced. Thus, the twelfth ratified amendment declares, "that the powers not delegated to the United States by the constitution, are reserved to the states respectively, or to the people." Now, if the general power granted for the purpose of making treaties, can set at nought the jurisdiction specifically given to congress for the purpose of making laws, may it not, with equal pro­priety and effect, overleap the boundary thus inter­posed between popular rights and constituted powers? In the one case, the reservation is expressly declared—in the other, it is necessarily implied.

[Page 141](2.) But if the delegation of a general power does, ipso facto, convey a right to embrace, in the exercise of that power, every authority not incompatible with its objects, the consequence will be that congress may enter into treaties as well as the president and senate.

For, congress is vested with a jurisdiction "to make all laws, which shall be necessary and proper for car­rying into execution their own powers:" and what laws are, in that respect, necessary and proper, they must, from the nature of the thing, be the judge.

Suppose, therefore, that congress was desirous of forming an alliance, offensive and defensive, with France, but could not obtain the constitutional number of two-thirds of the senate for accomplishing the measure by treaty,—an act of congress in order to regulate com­merce with that nation, would afford as effectual a mode (according to the new doctrine) since the act, on the pretext of an equivalent for commercial advantages, might legislate us into the coveted alliance. The temptation and facility of proceeding in this way is obvious;—the passing of a law requiring but a majo­rity of the senate; whereas the ratification of a treaty requires the concurrence of two-thirds of the members of that body.

(3.) It is not, however, necessary to mingle and confuse the departments of our government, contrary to the first principles of a free republic; not to make a part of our political system equal to the whole, con­trary to the soundest axioms of demonstrative philoso­phy, in order to give a just, efficient and salutary effect to the treaty-making power of the president and senate. For although,

In the first place, the treaty-making power cannot bind the nation by a decision upon any of the subjects, which the constitution expressly devolves upon the legislative power:

Yet, in the second place, the treaty-making power may negociate conditionally, respecting the subjects that [Page 142] constitutionally belong to the decision of the legislative power:

And, in the third place, every other subject, proper for the national compact of a republic, may be nego­ciated and absolutely concluded by the treaty-making power.

(4.) That such a distinction was intended by the framers of our present excellent constitution, the rea­sons that have been glanced at, must, it is thought, sufficiently prove to every ingenuous mind: But let one argument more be adduced.

By the ninth article of the old confederation it was declared, "That the United States, in congress as­sembled, shall have the sole and exclusive right and power of determining on peace and war."

By the existing constitution of the United States, it is provided, "That congress shall have power to de­clare war, grant letters of marque and reprisal, &c.

Now, it it evident, that by omitting to deposit with congress the power of making peace, in addition to the power of declaring war, the framers of our pre­sent government, had in full view the division of its departments, and the corresponding distribution of its powers.

Congress, under the confederation, was a single body, and therefore, necessarily possessed of all the little le­gislative, executive, and judicial authority, which the states had been pleased to delegate to the union.

The government of the United States, on the contrary, is a compound system, of which the congress is only the legislative department: and, therefore, the executive and judicial functions are elsewhere to be sought for and exercised.

Hence it is, that although the power of declaring war is (as it ought to be) left with congress, the pow­er of making peace is (as it ought to be) transferred to the executive; being a natural appendage of the gene­ral power of making treaties.

This deduction serves likewise to demonstrate, that the framers of the constitution, did not intend to [Page 143] leave the powers that are specifically given to con­gress, at the mercy of the power that is generally giv­en to the president and senate. By expressing a posi­tive jurisdiction in favor of the former, it excludes a claim of jurisdiction in favor of the latter.

(5.) Nor is it in the power of making treaties only, that the constitution has abridged the executive depart­ment of its customary attributes, in order to augment the sources of legislative jurisdiction.

In Great Britain (for instance) the executive possess­es the power of making peace; of granting letters of marque and reprisal; of regulating weights and mea­sures; of coining money, regulating the value there­of, and of foreign coins; of erecting courts of judica­ture; of conferring the rights of deni [...]enship on ali­ens, &c. &c

In the United States the power for all those purposes is absolutely vested in the legislature.

15. On reviewing the various positions that have been taken in the course of these strictures, a desire is felt to exhibit the corroborative opinions of men who have been justly valued by the public: It will be useful to the reader, as well as pleasing to the writer, to indulge the disposition in a few instances, and in a brief manner.

(1.) It has been said, that the power of regulating commerce belonged to congress.

The report of Mr. Mason (a member of the federal co [...]ven [...]) on that subject, was delivered in the con­vention of Virginia as follows: ‘With respect to commerce and navigation, I will give you, to the best of my information, the history of that affair. This business was discussed [in the convention] at Philadelphia for four months; during which time the subject of commerce and navigation was often under consideration; and, I assert, that eight out of twelve, for more than three months, voted for requir­ing two-thirds of the members present in each house to pass commercial and navigation laws. True it is, that [Page 144] afterwards it was carried by a majority as it stands. If I am right, there was a great majority for two-thirds of the states in this business, till a compromise took place between the northern and southern states; the northern states agreeing to the temporary im­portation of slaves; and the fouthern states conced­ing, in return, that navigation and commercial laws should be on the sooting on which they now stand.’

(2.) It has been said, that the treaty-making power could not cede a part of the union, nor surrender a citizen to be punished as a pirate.

The opinion of Mr. Randolph (a member of the federal convention, and now secretary of state) deli­vered in the same convention, contains the following passage: ‘I conceive, that neither the life, nor the property of any citizen, nor the particular right of any state, can be affected by a treaty.’

Mr. Madison, also, justifying and recommending the adoption of the constitution to his fellow citizens, says, with respect to the treaty-making power— ‘I am persuaded that when this power comes to be tho­roughly and candidly viewed, it will be found right and proper. Does it follow, because this power is given to congress, that it is absolute and unlimited?—I do not conceive that power is given to the presi­dent and senate to dismember the empire, or to alienate any great, essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of the dele­gation.’

(3.) It has been said, the right of suspending a com­mercial intercourse with any foreign nation; and the right of sequestering an enemy's property, &c. were rights essen­tial to an independent government, and recognized by the law of nations.

Vattel contains the following, among many other passages on those subjects:—

‘Every state has a right to prohibit the entrance of foreign merchandise, and the people who are inte­rested [Page 145] have no right to complain of it, as if they had been refused an office of humanity.’ B. 1. c. 8. s.90.

‘It depends on the will of any nation to carry on commerce with another, or to let it alone.’ Ibid. s. 92.

‘The goods even of the individuals in their totality ought to be considered as the goods of the nation, in regard to other states. From an immediate con­sequence of this principle, if one nation has a right to any part of the goods of another, it has a right indifferently to the goods of the citizens of that part, till the discharge of the obligation.’ Ibid. s.81, 82.

‘It is not always necessary to have [...]ourse to arms, in order to punish a nation: the offended may take from it, by way of punishment, the privileges it enjoys in his dominions; seize, if he has an oppor­tunity, on some of the things that belong to it, and de­tain them till it has given him a just satisfaction.’ B. 2. c. 18. s. 340.

‘When a sovereign is not satisfied with the man­ner in which his subjects are treated by the laws and customs of another nation, he [...] liberty to declare, that he will treat the subjects of that na­tion in the same manner that his are [...]eated.’ Ibid. s. 341.

(4.) It has been said that the constitution ought to be preserved such as the people have made it; that, of course, the departments of government ought to be kept separate and distinct, each revolving in its pro­per orbit; and that to other judicial tribunal could be erected by a law of the legislative power, much less by a treaty of the executive power, than what the con­stitution prescribes, or expressly permits.

On this interesting subject we fortunately possess the opinions of the judges of the supreme court and of the judges of some of the district courts in the case of the act of congress (already more than once alluded to) [Page 146] which they unanimously adjudged to be unconstitutional and void.

Extract from the opinion of judges IREDELL and SITGREAVES.

Extract from the opinion of judges WILSON, BLAIR, and PETERS.

Extract from the opinion of chief justice JAY, and judges CUSHING and DUANE.

Such, upon the whole, are "THE FEATURES OF MR. JAY's TREATY." It was not intended to pro­tract this sketch of them to so great a length; and yet more circumstances are recollected, that might have been inserted, than could, upon a fair reconside­ration, be retrenched. If it shall, in any degree, serve the purposes of truth, by leading, through the me­dium of a candid investigation, to a fair, honourable, and patriotic decision, the design with which it was written will be completely accomplished, whether RA­TIFICATION or REJECTION, is the result.

But, before the subject is closed, let the citizens of the union be warned from too credulous an indul­gence of their prejudices and their fears. The discord­ant cry of party is loud; and the phantoms of war assail the imagination: yet, let us not be deluded by stratagem, nor vanquished by terror. The question is not a question between party and party, but between nation and nation:—it is not a question of war or peace between military powers; but a question of po­licy and interest between commercial rivals. The subject is too momentous to be treated as the foot­ball of contending factions;—it appeals from the passions to the judgment; from the selfishness to the patriotism of every citizen!

[Page 150]That the British treaty, or a British war, is a neces­sary alternative, will be more fully controverted, the writer's present intention of delineating "THE FEA­TURES OF THE DEFENCE," shall be carried into effect. But, in the mean time, let a few self-evident propo­sitions contribute to relieve the public mind, from the weight of that apprehension.

1. The disposition of Great Britain, manifested by the order of the 6th of November 1793, by the speech of Lord Dorchester to the Indians, and by the repeated invasions made, under General Simcoe's authority, upon our territory, is naturally hostile to the United States.

2. Even if the United States could by any means soothe and convert that disposition into amity and peace, the projected treaty is too high a price to pay for such a change.

3. The refusal to enter into the projected treaty with Great Britain, is not a just cause of war; and and if a pretence, only, is wanting, it may be found in the toasts at our festivals, as well as in the acts of our government.

4. But the ratification of the treaty will assuredly give umbrage to another nation—to an ancient ally.

5. If war is inevitable either with great Britain, or with France, it would be more politic for the state, more congenial to the sentiments of the people, to en­gage the former, than the latter, power.

6. In case of a war with Great Britain, we have assurance, that France will aid us with all the energy of her triumphant arms.

7. In case of a war with France, we ought not to count upon the affections, and we cannot rely upon the power, of Great Britain, to befriend us.

1. Actual State.

AMERICAN ships from Europe enjoy a protect­ing duty of 10 per cent. on the amount of du­ties on goods, wares, and merchandises, imported in­to the United States in foreign bottoms from Europe, and of 30 to 50 per cent. on teas imported in fo­reign bottoms from Asia or Europe, paid by foreign bottoms, more than is paid on such goods imported in our own vessels. Foreign bottoms pay also 44 cents a ton on every voyage, more than is paid by American shipping; all which had been allowed by the Federal government, to encourage American ship-builders, mariners, mechanics, merchants, and farmers.

2. Actual State.

American ships, of any size, now go freely to all the British West Indies, sell their cargoes, and bring re­turns as it suits them.

3. Actual State.

American ships may now freely load melasses, su­gar, coffee, cocoa, or cotton, to any part of the world from the United States.

4. Actual State.

American citizens can now go supercargoes to In­dia, settle and reside, and do their business there.

5. Actual State.

America now enjoys the right of regulating com­merce, so as to encourage one nation and discourage another, in proportion to benefits received, or injuries felt respectively.

6. Actual State.

American ships now freely navigate to the British dominions in India, and from thence proceed with cargoes to any part of the world.

7. Actual State.

Timber for ship-building, tar, or rosin, copper in sheets, sails, hemp, cordage, and generally whatever may serve directly to the equipment of vessels, not contraband by former treaties of the United States.

8. Actual State.

American ships carrying provisions, by America claimed as having a free right of passage to the ports of their destination.

9. Actual State.

American ports open to prizes made on Britain by France; and America possessed of the liberty to grant similar douceurs to other nations, as she sees fit in fu­ture compacts with them.

10. Actual State.

American ships allowed at present freely to enter British ports in Europe, the West Indies and Asia, but shut out from the sea ports of Nova Scotia and Canada.

11. Actual State.

American ships thus partially allowed entrance into British ports.

12. Actual State.

American ships now sail, though not under naval protection, under guarantee of all the British effects possessed here, which might be made answerable for our floating property, if unjustly seized on by Great Britain in case of a war, so much apprehended by the chamber of commerce of New York.

13. Actual State.

British debts now recoverable in the federal courts of the United States, but reposing on the solvency of the debtors only.

14. Actual State.

America sends Mr. Jay to recover redress for spoli­ations on our commerce actually sustained.

15. Actual State.

American ships much plagued by British pri­vateers.

16. Actual State.

American citizens may now expatriate and serve in foreign countries.

17. Actual State.

America possesses claims to a large amount on ac­count of negroes carried off, and the Western Posts detained, in violation of the treaty of 1783.

No. 1

THE treaty between Great Britain and America has been a matter of great public expectation, and it has been rendered more interesting by the time and manner in which the negociation originated.

Before the revolution in America, the people of the then colonies were under the government of Great [Page 195] Britain; they considered themselves as children of the same family; their trade was almost limited to the British dominions; the Americans had estates in Great Britain, and monies in [...] funds; an extensive com­merce had created innumerable debts and connections between the two countries, which could not be at once discharged and dissolved.

A long, expensive, and bloody war, to resist the unjust claims of the British parliament, attended with many instances of atrocious cruelty and perfidy on the part of the British governors and commanders, alien­ated the affections of the great body of Americans from the mother country. On the restoration of peace, however, and the acquisition of independence, the enmity of the Americans gradually subsided; and the usefulness of the commerce of England to these states, being every where experienced, soon revived the habits of friendly intercourse between America and Great Britain, which had been interrupted by the war—an intercourse which was not much affected by the controversies between the two governments on account of the inexecution of the treaty of peace. Almost as soon as the acceptance and organization of a constitution for the United States had given them a national capacity, it was the wish and desire of Ame­rica to form a commercial treaty with Great Britain; and Mr. Jefferson, in a letter to Mr. Hammond, dated Nov. 29, 1791, requested to know, whether he was authorized to enter into a negociation for that purpose.

The circumstances which operated to defeat the attempts of our executive, and the controversies be­tween the governments of the two countries, relative to the non-fulfilment of the treaty on one side and the other, are in every man's recollection;—it is needless to mention them here. It is sufficient for my pur­pose, that the president was authorized by the public wishes, to negociate a commercial treaty with Great [Page 196] Britain; and he is vested with full powers for this pur­pose by the constitution.

The uinform desire of congress on this subject, is a complete answer to all cavils about the exertion of the president's constitutional powers. It was the na­tion, the United States, that requested and urged for a negociation.

This also is an answer to the men who say, the peo­ple of America supposed the appointment of Mr. Jay as envoy extraordinary, was intended only to demand and procure a redress of wrongs, and indemnification for spoliations on our trade; and not for the negocia­tian of a commercial treaty.—Whatever opinion peo­ple formed of the embassy, the instructions given to the envoy were in pursuance of constitutional powers; and if the people are surprized with a treaty of amity and commerce, before they expected it, this forms no objection to the treaty itself.

The time selected for this negociation, and the exercise of the president's powers, at the critical mo­ment, when the public mind in America was in a vio­lent flame, on account of the seizure of our vessels by British privateers, and when hostilities were expected between the two countries, however offensive to a party in America, are among the most fortunate cir­cumstances of this whole business.

The sequestration bill, then before congress, in­volved in it the events of peace or war. The bill, had it passed, would have been considered by Great Britain equivalent to issuing letters of marque and re­prisal, and tantamount to a declaration of hostilities; and probably that act, had it been sanctioned by the several branches of the legislature, would have plunged us into the present most calamitous war.

Such a consequence was considered by the president as little less than inevitable. As a constituent branch of the legislature, and chief magistrate of the nation, he had a right to exert the powers he possessed—and if he thought the house of representatives were rash [Page 197] in their measures, it was his duty, as the chief guar­dian of the public safety, to exert any of his consti­tutional powers for the purposes of arresting those measures. It was as much his right and his duty to interpose negociation as a means of checking any measures that he deemed inconsistent with our national interest, if he judged that the best means, as it is to give his negative to a bill that has passed the other branches of the legislature, when he judges the bill unconstitutional or inexpedient.

The right of the president to interpose negociation, at the time he did, cannot be disputed. The expedi­ency of the measure will perhaps never be admitted by its opposers; but every subsequent event has served to convince the friends of our present administration, that the measure was highly expedient and the time well chosen.

That the president was right in resorting to a peaceable demand of indemnification for spoliations on our commerce, is capable of the highest proof. The law of nations makes it a duty, on the part of a na­tion thus injured, to make a peaceable requisition of damages or restoration of property, from the aggress­ing nation, before the commencement of hostilities.

Vattel, book 3, chap. 3, lays it down in the most unequivocal language, that an injured nation has no right to resort to force for satisfaction, until other means of obtaining it have proved fruitless.

In conformity with this principle of the law of na­tions, it is often stipulated by treaty, that letters of marque and reprisal shall not be granted by an injured nation, until means of redress have been sought in the ordinary course of justice. Of this tenor is the third article of the treaty of navigation and com­merce between Great Britain and Spain, dated 1713.

It was in pur [...]ce of this most salutary principle, that the president appointed an envoy extraordinary at the time he did; and it was undoubtedly, in other [Page 198] respects, highly expedient; as no moment could be more eligible for a negociation with England, than when she was engaged in an expensive and unsuccess­ful war: a war that entrenches deeply on her resources, and demands a minute attention to her commercial interests.

But my opposers will say, "We admit the propri­ety, of negociation, before the commencement of ho­stilities; but we contend that our envoy should have been restricted to a demand of the western posts, and indemnification for losses by illegal captures, and con­demnation of our vessels and property. It was never understood, that Mr. Jay had instructions to make a commercial treaty."

This objection amounts to nothing, and deserves no answer. The president had as good a right to autho­rize Mr. Jay to conclude a treaty of amity and com­merce as any other man; and he had the same right to choose one time as another.

Having made these preliminary remarks on the origin of this negociation and treaty, I will proceed to answer such objections to the treaty as have come to my knowledge.

The daily invectives of newspaper paragraphists will be passed without notice. This is treating them as they deserve to be treated, and as they are in fact treated by the public.

A writer in a morning paper under the signature of Decius, appears to have assailed the treaty with more ingenuity than any other writer whose argu­ments I have read; and it is probable that his writings comprise the amount and force of all the objections that are made to it. I shall therefore take his objec­tions in the order they are published, and endeavour to prove them of little weight, or wholly unfounded.

The first remarks of this writer are aimed at the candour and integrity of the twenty members of the senate, who, he insinuates, ratified the treaty from motives of party spirit. He does not indeed exempt [Page 199] the minorty from the same censure of their conduct. But what refutes the insinuation is, the rejection of the twelfth article by the men thus criminated. Cer­tainly the spirit of party was not the governing mo­tive; for party-spirit is unconceding and goes all lengths to carry its points. The rejection of that ar­ticle, because it entrenches too much on our carrying trade, in the opinion of those gentlemen, is a proof that the interest of commerce and the public good were the motives of their conduct in assenting to every other part of the treaty.

His next remark is levelled at the secrecy of the senate, in conducting the debates on the treaty. "Is not this secrecy alone, says Decius, "a proof that the senate conceived it disgraceful and prejudicial to the United States?"

Let me ask that writer a candid question: Has not every treaty which we have made with other nations been concluded and ratified in secret? And is there one of those treaties disgraceful or prejudicial to our nation? No objection was formerly made to these se­cret ratifications. Why should reasons now exist for opening the discussion of treaties to the people, which did not exist in 1783 and 1785? The reason is ob­vious: Americans were formerly under no influence but that of propriety; they acted themselves—Now a party of them have deserted the principles which formerly guided our councils, and appear to be am­bitious only of finding opportunities to rail at all stea­dy wisdom, and to commit our interests to passion and party.

The secrecy of negociations with foreign powers, through every stage of the business, is dictated by sound policy. By making treaties public before they are ratified, advantages would often be lost, and by destroying confidence and freedom of communication, the business would be often impeded or wholly defeat­ed. Nothing marks the sense of mankind on this subject, better than the practice of individuals, who [Page 200] generally use secrecy in all important contracts of their own. This common practice is a proof of its utility. Much more necessary is it in treaties, which are nati­onal contracts or conventions.

Another remark of Decius, worthy of notice, is, that the "first impressions made by the treaty were unfa­vorable—all men and all ranks [what ranks? this writer has certainly forgotten one article of democracy—equality] united in condemning it."

This remark has some foundation, and the fact is easily accounted for. The first impressions on the minds of the public were made by an abstract of the treaty, which was published incorrectly, and there are strong suspicions that it was done with the insidious view of exciting improper impressions. The abstract was said to have been made from memory. This can­not be true. It is not in the power of man, after the most careful perusal, to make out so large an abstract, without the help of notes, of twenty eight articles of a treaty, without intermixing the articles in the sketch. The business must have been done with de­sign; and it was inexcusable in any man to offer to the public a sketch, much more an incorrect one, of so important an instrument.

These unfavorable impressions, however, answered the views of men who perfectly well understood the importance of prepossessing the public mind They ex­cited a temporary clamor, and have perhaps made a few weak friends to an expiring cause.

But the clamer of the moment subsided on reading a correct copy ot he treaty—men all agreed it was not so bad as they expected. Still many well mean­ing people do not understand it; and every possible effort is used to distort and misconstrue some passages of the treaty which affect the commerce of the coun­try

The violent censure of the treaty which prevailed on its first publication, in skeleton, and the moderati­on of the clamor on further perusal of it, instead of [Page 201] being a proof that the treaty is in itself bad, is a sut­stantial argument in its favor—it is a proof that it bears examination—and it is a proof, further, of what we should all regret, that the passions of men outstrip their judgment.

Should the final result of the business prove to be, what I am confident it will be, a general conviction that the treaty is, on the whole, a favorable one for the United States, and the most favorable of any treaty we have yet formed; the public will view with indignation, the insidious attempts that have been made to excite a ferment, and opposition to its ratifi­cation, as well as to load with unmerited censure the able minister who conducted the negociation.

No. II.

THE preamble of the treaty, says Decius, is not free from objections. It states that the differences; between the countries are to be terminated "without reference to the merits of their complaints." Decius says, the merits of the controversy should never be lost sight of. But when this expression is explained, I believe every candid man will justify it in the present instance. The merits of the complaints, in this instance, refer solely to the question, "which party first violated the treaty of peace." On the first opening of the neg­ciation between the ministers of the, two countries, this became an important point of discussion. The American envoy alleged the first breach of the trea­ty to be on the part of Great Britain, and mentioned the carrying away of the negroes.

The English minister maintained that this was a violation of the treaty. As this subject has occa­sioned as much altercation as any point between the two countries, and as the silence of the present treaty on that subject, is the ground of violent clamor, I will anticipate a consideration of this point, which would more properly fall under a subsequent; article.

[Page 202]Whenever our ministers have urged the claim of restitution or compensation for the negroes, the Bri­tish ministry have, invariably, answered them with the following remarks:

"The negroes carried from America by the Bri­tish armies, were taken by the troops an their march­es through the country, or came in, by proclamation and put themselves under our protection.

"The clause of the treaty on which you ground your claim is in these words—"his Britannic majesty shall, with all conveinient speed, and without causing any [...] estruction, or carrying away any negroes or other proper [...] of the American inhabitants, withdraw all his armies, &c."

"By the laws of the American states negroes are considered as property as much as cattle; you claim them as property for the men who were their proprie­tors. By the laws of war, universally admitted, every species of moveable property found and taken in an enemy's country, becomes the property of the captors. By the seizure and possession of the negroes, the Bri­tish armies became the rightful owners; the negroes were booty, as much as the horses and cattle taken by the same troops.

"Suppose an American boat loaded with goods, to be taken, on one of your rivers in the time of war, would not that boat and goods bt a fair prize? Sup­pose a horse to stray into the British lines and be tak­en, would not that horse belong to the captors? Could a claim be reasonably interposed for restitution or compensation in these cases? Whether they were seduced or forced from the plantations, if they were property, that property, on their coming into possessi­on of the British army, was changed, according to all ihe laws of war.

"The clause of the treaty contemplates negroes which were American property at the date of the stipu­lation. "Negroes or other property" are the words. But the negroes which our troops had taken in their [Page 203] marches, or which had put themselves under their protection, were not, at that time, the property of Americans.

"On this construction, which we hold to be the only rational one, that clause of the treaty will not maintain your claim. The treaty may include slaves which were within the British lines, in possession of their American masters; but there is no pretence that such were carried away by the British troops.

"Besides, we cannot surrender negroes which came into our lines on the faith of proclamations, without a violation of that faith; which cannot be done. We promised them freedom and protection—we gave them that freedom, and we must protect them."

Such is the substance of the ministry's reply, to the claims of our envoy, which were repeatedly urged without success.—And the British ministry have inva­riably put the same construction on that clause of the treaty of peace. Indeed it seems difficult to answer this reasoning.

Either the negroes were slaves and property, or they were not. If they were slaves and property, as con­sidered by the laws of most of the American states, the British had the same right to seize and carry them away as booty, as they had to seize and carry away horses and cattle; a right of war that was never dis­puted. In this case, the property was changed the moment they came into the possession of the British armies, and at the date of the treaty, they were not American property, and consequently not included in the stipulation of the treaty.

If, on the other hand, the negroes were freemen, they had a right to put themselves under British pro­tection, and we have no shadow of claim to restituti­on or compensation.

I am one who believe that no property can be ob­tained in human slesh, and any law authorising the purchase and detention of a human being, as property, is, ipso facto, void.—Should this position be well [Page 204] founded, we have not a shadow of pretension to the negroes carried away by the British troops.

But the laws of many of the states do consider them as property: whether rightfully or wrongful­ly, is not now the question. If we consider them as property, they are to be ranked among personal es­tates, for they certainy are not real estate.

Now Mr. Jefferson, a man of eminent talents, and the oracle of my antagonists, admits, in the fullest extent, the doctrine, that all personal estate is right­fully seizable by enemies in war. The following are his words:—

"It cannot be denied, that the state of war stictly admits a nation to seize the property of its enemies, found within its own limits, or taken in war, and in whatever form it exists—whether in action or possessi­on."

In confirmation of this, he quotes Bynkershoek, l. 1. c. 7. who is clear and explicit on the subject. See papers relative to Great Britain, published by order of congress, p. 29. This doctrine is the universal law of nations.

"As the towns and lands taken from the enemy, are called conquests, all moveable things constitute the booty. The booty belongs to the sovereign." Vattel, b. 3. c. 9.

In the interpretation of treaties where there are two constructions, the one favorable, the other odious, that which is odious is always to be rejected: and what can be more odious than to construe this article of the treaty, so as to violate faith towards the wretched blacks, and render them back to the whips and scourges of slavery?

At any rate, this point of the business the British ministry will not yield, as the first infraction of the treaty.

Then came the detention of the western posts, which our minister alleged to be a breach of the trea­ty, anterior to any violation on the part of the Unit­ed [Page 205] States.—Here was introduced the correspondence between Mr. Jefferson and Mr. Hammond, and Mr. Jefferson's reasoning on the subject.

To this the British minister answered, by referring to dates of transactions.

The provisional articles between Great Britain and America, were signed, November 30th, 1782, at Pa­ris; and notice of this was officially received by Sir Guy Carleton, April 5th, 1783. But the definitive, treaty was not signed till September 3d, 1783, and the ratifications were not finally exchanged, till some time in 1784, though I do not know the day and month.

A treaty is binding on a nation from the moment of signature; but its ultimate validity depends on its passing through all the usual forms. According to the modern practice, the exchange of ratifications puts the seal to the validity of a treaty, and gives it an effect from the time of signature.

The British ministry state that, ex gratia, or as a matter of convenience to the nation, orders were giv­en to Sir Guy Carleton to evacuate New-York, im­mediately on signing the provisional articles in 1782. But they allege they were not bound to do this, un­til they had been notified of the ratification of those articles by congress, which could not have been till the middle of the year 1784.

The demand made by the Baron Steuben, by or­der of General Washington, of the surrender of the western posts, and the first demand made, was by his letter to General Haldimand, dated August 2, 1783. At this time the British minister could scarcely have heard whether congress had agreed to the treaty or not; much less could any orders have been sent from them to Canada, for withdrawing the troops from the garrison.

Admitting this fact, that the British ministry were not bound by treaty to give orders for the troops to [Page 206] withdraw, until the treaty had gone through its usual forms, then the detention of the posts, till long af­ter they had been demanded by Baron Steuben, and perhaps as late as the demand of Colonel Hull, in Ju­ly, 1784, was justifiable and authorized by the prac­tice of nations.

But long before this, congress had declared the carrying away of the negroes, an infraction of the treaty; and in May 1793 had sent orders to our fo­reign ministers to remonstrate against this measure and demand reparation.

The state of New-York, so early as March 17, 1783, passed an act authorizing any citizen to bring actions of trespass against any person who had occu­pied, or injured his estate, real or personal, within the power of the enemy. This was an express violation of the 6th article of the treaty, which declares that no person shall suffer any loss or damage, or any pro­secution, on account of the part he had taken during the war. And Virginia, in December, 1783, passed an act, suspending executions on certain judgments, which materially affected British creditors. South Carolina in March 1784 followed, and passed an act suspending all actions, both British and American, for nine months.

These legal impediments to the recovery of old British debts, determined the ministry not to surren­der the posts, but to hold them as a security for these debts. And whatever clamor we may raise about this business, we may be assured, that the western posts will never be delivered peaceably, until the payment of those debts has been amply secured.

I have been thus full in explaining what is meant by the merits of complaints, in tne preamble of the trea­ty, to show, that our minister was justifiable passing over the discussion of a point of extreme difficulty—a point which would have wasted time and embarrassed, perhaps defeated, the negociation. The question of the first infraction of the treaty of peace had been ably [Page 207] discussed before; and at the close of the controversy, the parties were as remote from the probability of a­greement as when they began.

Neither party would yield the point to his antago­nist. The British ministry, it is evidently known, are determined never to admit the carrying away the negroes to be an infraction of the treaty, and they are equally determined not to surrender the western posts without a guarantee for the payment of old debts.

In this situation, was it not prudent and wise to pass over the first subjects of crimination, and proceed to an amicable adjustment of all differences, if it could be done, without attempting to decide who first in­fringed the treaty? I am persuaded that every candid man who reads this explanation of the business, will be fully satisfied with the conduct of our envoy.

[Note. I generally use the word envoy or minister, in the singular, as referring to Mr. Jay, the principal in the negociation. But it is proper to observe once for all, that Mr. Jay, by order, communicated his instructions to Mr. Pinckney, consulted him on every point, and that the treaty end every article of it had the approbation of that gentleman.]

No. III.

THE first article of the treaty contains words of course, which deserve no notice.

No. IV.

No. V.

No. VI.

THE 10th article of the treaty provides that "nei­ther the debts due from individuals of the one nation to individuals of the other, nor shares nor monies which they may have in the public funds, or in the public banks, shall ever in any event of war or nati­onal differences be sequestered or confiscated," The faithful observance of the restriction contained in this article is so much for our interest as well as honor, that we should naturally have concluded, the most determined enemies to any good understanding with Great-Britain, would at least have passed it by in si­lence. But so strong are the prejudices of a certain party amongst us, or so virulent their passions, that they have given to almost every paragraph in the trea­ty [Page 227] an equal condemnation. Decius has complained of this article as being, like many others, exclusively advantageous to England, and as arresting from our government a lawful and powerful weapon of war. I am greatly mistaken, however, if it is not completely defensible against every part of this accusation.

It is true that by the law of nations, as existing a century ago, the debts owing from one nation to ano­ther were legal objects of sequestration in war. "But ar present (to use the language of Vattel, b. 3. ch. 5. sec. 77.) in regard to the advantage and safety of commerce, all the sovereigns of Europe have departed from this rigor.—And as this custom has been gene­rally received, he who should act contrary to it would injure the public faith; for strangers trusted his sub­jects only from a firm persuasion that the general custom would be observed. The state does not so much as touch the sums which it owes to the enemy. Every where, in case of a war, funds credited to the public, are exempt from confiscation and seizure." This clear explanation of the modern law of nations, as far as it relates to the public funds, is also to be found in a report of the English judges in the year 1753, in answer to the Prussian memorial; a report of much authority, which Vattel does not scruple to call an excellent piece on the law of nations. "It will not be easy, say the judges, to find an instance where a prince has thought fit to make reprisals upon a debt due from himself to private men. There is a confidence that this will not be done. A private man sends [...] to a prince upon the faith of an engagement of honor, because a prince cannot be compelled, like other men, in an adverse way, by a court of justice, So scrupulously did England, France and Spain adhere to this pub­lic faith, that, even during the war, they suffered no enquiry to be made whether any part of the public debts was due to subjects of the enemy, though it is certain many English had money in the French funds and many French had money in ours."

[Page 228]But these principles have received sanction from a source, which the adversaries of the article will be disposed to admit as of still greater authority and re­spectability, I mean from the proceedings and decision of the French convention. It appears from Paris pa­pers which in April last were translated and republish­ed in the Aurora, that in the sitting of the convention, Dec. 29, 1794, after the house had passed to the or­der of the day, "Johannot read the following articles of the projected decree, which were as follow—(here follow five articles.)

Art. VI.

"The decree concerning the sequestration of the property of the subjects of the powers at war with the Republic is annulled. Such sums as have been paid by French citizens into the treasury in consequence of those decrees, will be reimbursed." This article occa­sioned some debate. Gaston was against it. Cambon observed, that the law of sequestration was extorted from the convention by the faction of Fabre d'Eglan­tine and Danton, but ought you to return the property of the Spanish to the despot of Madrid? Thiriot agreed with Cambon. Colombel desired the assembly to annul only the sequestration of the sums due for commercial relations. Ramel shewed that the law of sequestration had been urged by the foreigners them­selves and stockjobbers, that it had prepared the ruin of commerce, and broken off, against the right of nations, the obligations of merchants in different states; though the powers at [...] the Republic should not repeal the sequestrat [...] of French property, it is our duty to set the example. The sixth article was maintained as reported.

I have thought it not useless to give a brief sketch of this very interesting proceeding in the French con­vention, because it not only establishes what I contend to be the law of nations, but exposes the injury and injustice of departing from this part of it even in the midst of the most violent war. And it ought to be [Page 229] remarked to the honor of our country, that during the course of our revolution, notwithstanding the warm resentments it called forth, we never attempted to an­nul the British debts, but finally agreed to the 4th ar­ticle of the treaty of peace, "That creditors on ei­ther side should meet with [...] lawful impediment to the recovery of all bona fide debts heretofo [...] contracted." So also in the Amsterdam and Antw [...]p [...] loans, we ex­pressly stipulated, that they should not be impaired on the event of a future war between the two countries.

I think it will be evident from the authorities which I have adduced, that the sequestration and confiscati­on of debts and public stock, are not now the custom­ary and admissible weapons of war. The ancient max­ims on this head are justly and generally exploded by civilized nations, and the interests of commerce in this, as in many other instances, have happily set bounds to the intemperance of Gothic rage. In stipulating to a formal renunciation of this mode of warfare, we have done no more than what we were bound to do by the acknowledged dictates of good faith. We have renounced a weapon which our own sense of right and policy had before forbidden us to use. If howe­ver it should be supposed that occasions may sometimes arise in which it would be expedient for the purpose of more effectually wounding our enemies, to attack public or private contracts, then let me ask, what diffi­culty has the treaty thrown in the way? The same fierceness of character which would lead us to violate the received maxims of war and national duty, would readily set aside the moral obligation of this article. Its only effect arises from laying down in the rational sea­son of peace, the rule of conduct in war, and by super­adding an express, to the implied, sanction of good faith.

But it is alleged that this article has no actual re­ciprocity, because all the debts are due from us either as a nation or as individuals, and that our citizens [Page 230] hold no British stock, and have few or no demands upon their subjects. If, however, this species of con­fiscation be really repugnant to the present usage of nations, and is unjust and impolitic, the renunciation was equally fit and proper, whether it was mutual or not, and in proportion to the means we had of using this mode of warfare, does the sacrifice redound to our credit and character. But the truth is, that the bene­ficial operation of this article is principally on our side. It is much more satisfactory and necessary to us, than it is to Great Britain, because it tends directly to fos­ter and strengthen the credit of the United States, both public and private, a circumstance of the utmost moment to our prosperity as an infant nation.

It is by force of public credit, that our government has attained to its present stability, and has so many competent means of acting with efficacy whenever the public exigencies require it. Credit, as a good judge of our interest has observed, is the invigorating princi­ple of this country. Any addition to it, however sma [...]l, will give much greater power of self-defence, than the little persidious and exploded resource of confiscating debts or violating the pledged negociability, and sa­credness of public stock. Nor is private credit of much less utility in a country which has so little capital, in proportion to the extent and variety of the demands for it. We have immense territories of waste land to clear and settle; and abundance of raw materials for nourishing the manufacturing and mechanic arts: but to answer these ends, requires an unceasing supply of capital, or credit, which in most cases is its eligible sub­stitute. In short there are no people upon earth who have so many inducements as the United States, to de­clare unequivocally to the world, that the claims of their creditors shall always be deemed sacred in peace and in war.

After taking such a full view of the subject, we can­not withhold our astonishment that Mr. Burr, and Mr. Tazewell, should each of them, in the senate, by for­mal [Page 231] propositions of amendment, single out this article, among others, as a proper object of censure and repeal.

There is one more objection to this article, which merits some attention for its singularity; and because it places in a strong light, the extreme jealousy or pre­determination to condemn, with which every part of the treaty has been read. It is apprehended or rather pretended to be, that the king of Great Britain will engross all the shares of our several American banks, and thereby obtain the entire controul of them and fill them with British directors. It is just as rational to sup­pose that he will buy up all our goods and chattels, and thereby put a total stop to agriculture and manufac­tures. If the king of Great Britain is disposed to ex­pend his money for the disturbance of our government, there are much more effective methods of doing it than by the indirect means of our banks. Such an apprehen­sion is ridiculous in the extreme, and cannot surely im­pose on the most credulous mind, especially when it is known that the several bank charters expressly provide that all the directors shall be American citizens, and that no stockholder shall be entitled to vote for a director unless he either attends in person or resides within the Untied States.

We have now finished an examination of the first ten articles of the treaty, and which form the per­manent part; for the commercial articles which fol­low being of more difficult adjustment, and their ef­fect not being so easily ascertained by theory as ex­perience, were wisely limited to a short period. It has often been asked, and with an air of conscious triumph, what single equivalent have we got for so many and great concessions on our part? Let us review for a moment the ground we have gone over, and see if an answer cannot be given which will satisfy all the real friends to the interest of our country.

We have gained all the western posts without bloodshed—we have obtained a promise of complete [Page 232] indemnity for all unlawful spoliations on our trade, as soon as an impartial tribunal shall have ascertained the amount of our losses—We have obtained a liberal and permanent commerce between our frontiers and the whole frontier of the British provinces in Ame­rica, and we have by these means removed the prin­cipal sources of national complaint against Great-Britain, and secured to our country the continuance of the blessings of peace. And what have we con­ceded on our part? We have promised to pay such losses only as British creditors have suffered in their debts, by occasion of legal impediments in this coun­try, as soon as an impartial tribunal shall have ascer­tained the amount of such losses, and to pay for such British vessels only as we have suffered, without using the means in our power to prevent it, to be captured within our territory, contrary to the law of nations. And we have also allowed a liberal and permanent commerce between Canada and our interior possessi­ons. These are the material parts of the permanent treaty, and it appears that both nations have conceded, in those instances, what in justice and equity they ought to have done, and to have manifested a mutual disposition to forget past animosity, and to live upon friendly terms hereafter.

No. VII

IN examining the commercial part of the treaty, we are not to enquire, as we have heretofore done, into matter of strict right. Arrangements of com­merce must depend upon the good will and pleasure of the contracting parties. They are things of imper­fect obligation only, and cannot be peremptorily de­manded. Every nation will accommodate so far, and so far only, as suits her interests or policy, and it will always be a question to be determined in sound discretion by other powers, how far their interest or policy will admit of a connexion, on such terms as can [Page 233] be obtained. Commercial propositions may be grant­ed, acceded to, or rejected by either party, without affording to the other any just cause of war. It is therefore a matter for consideration, how far the re­maining articles of the treaty are admissible or not, upon the principles of public expediency.

Although the 12th article may now very properly be left out of discussion, yet since it is the fashion to reprobate it in the most unqualified terms, and to use it as an instrument for inflaming the public passions, as well as to carry disgrace to the other parts of the work, it may not be amiss to give it some examina­tion.

It is well known that every European nation has endeavoured, more or less, to monopolize to itself, the commerce of its colonies, and upon that account pro­hibited the ships of foreign nations from trading to them, and has prohibited them from importing Euro­pean goods from any foreign nation.—This has been the case with Denmark, Holland, France, Spain, Portugal, and Great Britain, although the manner in which this monopoly has been exercised in those dif­ferent nations, has been very different. Great Bri­tain has been as much distinguished as any of her neighbours, during a century past, for a pertinacious adherence to the monopoly system, and it has become one of the rivetted maxims of her policy, to regard the exclusive enjoyment of her colony trade, as an es­sential nursery of seamen, and a constant support of her naval power. So late as the year 1783, Lord Sheffield gave his sanction to this ancient doctrine, and said, that it would be impolitic in Great Britain to admit American vessels into the British West India islands, and we see with what great allowance we ought to compare the privileges conceded in this ar­ticle, with the theory of an unlimited commerce.

The French convention, during their present revo­lution, have recognized and adopted the English po­licy [Page 234] This appears from the eloquent report of Bar­rere, upon their navigation act, which is intended for perpetuity, and is declared to be the basis of their po­licy and commerce. The act ordains, that no com­modities shall be imported into France, but in French vessels, or in those of the country which produced the commodity; and that foreign vessels shall not transport from one French port to another, any com­modities of the growth or manufactures of France or her colonies.—And, notwithstanding the necessities of the war may have induced the French to a tempo­rary departure from this act, we may be assured, the principles advanced in the report, are too generally and powerfully felt, not to induce them to adhere to it on the return of peace, as the sure basis of their maritime strength. "The prohibitions of a naviga­tion act," says Barrere, "should be as extensive as they could be made, for without them it would be a mere illu [...]ory measure. The English," continues he, "from whom we borrow this system, have given it that extension, and, indeed, they are to be applauded for it."

When we consider the value that is attached to the carrying trade, in the opinion of the European nations, we have no reason to be disappointed that Mr. Jay could not get access to the British Islands on better terms. It was to have been wished that he could have got the admission of vessels of any burden into this trade, but this was undoubtedly beyond his pow­er. While Great Britain consented to admit us to trade to her islands in our own bottoms, we may be assured she was determined to do it in such a manner as not materially to affect her carrying trade, the source of her security and greatness. This must have been the reason with her for restricting our vessels to 70 tons and under (and indeed it is understood that the treaty was kept open for some time on the part of Mr. Jay, while he was endeavouring to extend this clause) and from carrying any molasses, sugar, coffee, [Page 235] cocoa or cotton, either from her islands in vessels of the United States, to any where but this country. It will be asked why Great Britain shonld wish to re­strain us from carrying any of these articles to Europe, provided they are not the growth of her islands? the answer is, that nothing short of a total prohibition, would in her opinion, effectually secure her carrying trade, since her own and foreign sugar or coffee would not easily be distinguished, and any modification would have opened a wide door to elude the whole intent of the restraint, would have rendered the whole prohi­bition, to use the words of Barrere, a mere illusory measure.

It is not my intention to vindicate either the just­ness or liberality of this policy on the part of Great Britain. It is sufficient to say that it appears to have been her inflexible policy, and to which she thought herself bound in duty to adhere. The only question is, whether there was any reasonable prospect at pre­sent of our obtaining better terms; and if not, whe­ther it was not upon the whole for our interest to ac­cept of the trade upon those terms? This may yet be a doubtful point, though I acknowledge a consi­derable objection to the 12th article as it now stands, that is, the prohibition to carry melasses, sugar, cot­ton, &c. to Europe, is so general as to include those articles even of our own production. This prohibiti­on, with respect to coffee and sugar in particular, it is said, would be very inconvenient to us during the present war, though in time of peace it would be of no consequence.—The 12th article does not prohibit us from exporting any of those articles from the other West India islands to any part of the world. We are only restricted from exporting them from the British West India islands (except to the United States) in order to preserve to the English their carrying trade, and from the United States in order to preserve the other restraint from evasion.

[Page 236]It ought not to be forgotten that this article was limited to two years from the conclusion of the pre­sent war, and then the contracting parties were to endeavour to regulate this trade, with a view to their mutual advantage, and the extension of commerce; and if they should not agree on new arrangements, all the articles of the treaty, except the first ten, were to fall to the ground. At the end of the two years we should most probably have entered on the nego­ciation with much less difficulty than at present.—The British West-Indies would have been for some time accustomed to the benefits of our trade, and have got into the habit of placing their dependence as well as their affections upon it; while the mother country would have been a little familiarized to our trade with her colonies, and her jealousies and pre­judices would probably have greatly diminished with regard to it. We should have renewed the discussi­on with all those advantages which we now want, and the chance is, that the intercourse would not only have been continued but been attended with a favorable enlargement. And if eventually the ne­gociation should have failed and left only the ten first articles of the treaty remaining, yet those arti­cles, as we noticed in the last number, are well wor­thy of the mission, since they restore tranquillity and justice to our country.

The 13th article of the treaty relates to our commerce with the British East-Indies, and all the advantages which art conceded to us by this article, are without the smallest pretended equivalent on our part. The privileges of this article are not denied by those who have been most distinguished for their in­discriminate condemnation of the whole treaty. De­cius complains, however, that our commerce was on a better footing before, by the mere permission of the British government. It is sufficient to observe in answer to this, that the same permission can still be continued: there is nothing in this article which pro­hibits [Page 237] the India coasting trade. It would have been unnecessary, for such prohibition existed before. The article barely declares, that none of its privileges shall be construed to extend to the coasting trade. In other respects it leaves that trade just as it found it, under the precarious pleasure of the British govern­ment. But prior to this article, our whole inter­course with British East-India was a matter of favor, and surely it is a very important consideration that we can now claim it as a matter of right. Mr. Jef­ferson, in his report on the privileges and restrictions of our commerce in foreign countries, seems to have thought very differently from Decius on the subject of a precarious trade. He considered a commerce depending on the sole discretion of a foreign power, as a real inconvenience. "The disadvantage (he ob­serves) of a tenure which may be suddenly disconti­nued, was experienced by our merchants on a late occasion. The embarrassments of the moment were great, and the possibility of their renewal lays our commerce to England under a species of discourage­ment. The distinction is too remarkable not to be noticed, that our navigation is excluded from the se­curity of fixed laws, while that security is given to the navigation of others."

These remarks of Mr. Jefferson are solid; and they out-weigh a thousand town-meeting resolves. Without this treaty our trade to every British port can be interdicted by a nod of the British executive. But by this treaty, our commerce to England and the East-Indies, which now rests on the will of the mini­stry or the colonial government, is placed on the footing of permanent right. In this respect we gain an immense advantage—an advantage that we do not enjoy to the same extent, with any other na­tion upon earth.

The commercial concessions on the part of Great-Britain, which we have been just reviewing, are not only equal, but superior to those which are to be met [Page 238] with in the commercial treaties between her and othe powers, for more than a century past.

The treaty between Great-Britain and Spain, in 1667, and which for its advantages in matters of trade, was confirmed in 1713, takes special care to limit the commerce of the two nations to the terri­tories, provinces and islands, to which trade and com­merce had before been accustomed. And yet two years afterwards his Catholic majesty, as an evidence of his inclination to cultivate friendship, does indeed allow the English to gather salt in the isle of Tortu­gas, because they had enjoyed that liberty in the reign of Charles II.

In the treaty of commerce and navigation between Great-Britain and Russia, which was made in the year 1766, the friendly privileges of trade between the two powers, were confined to such places where leave in granted to the subjects of other nations. In the same spirit of jealousy and colony monopoly, which appears but too prevalent throughout Europe, Russia takes care in her treaty of amity and commerce with Denmark, in the year 1782, to except from the com­mercial grant, her ports of the Black and Caspain seas, and all her other possessions in Asia—and the king of Denmark, on his part, excepts also his pos­sessions in America, and elsewhere out of Europe. Nay, in the more recent treaty between France and England in 1786, and which was made with the ex­press view of promoting a more liberal intercourse, the trade is limited to each other's territories situated in Europe.

Nor have our own treaties of commerce with the powers of Europe been more favored in this respect. In the treaty with France, on which so much unqua­lified applause has been bestowed by the enemies of the instrument under consideration, there is no very extensive admission to her colonial possessions. France indeed grants us as a matter of favor, one or more free ports in Europe, and the free ports which have [Page 239] been end are open in the French islands in America. And in our treaty of commerce with Holland, we expressly stipulate to leave to the Dutch the peaceable enjoyment of their rights in the countries, islands, and seas, in the East and West Indies, without any hindrance or molestation. This is, indeed, stipulating for the per petuity of their monopoly. On the other hand, Great Britain, by the 13th article of the present treaty, gives us a free and liberal admission into all her terri­tories in the East Indies; on immense country, which contains more than twenty millions of inhabitants, is guarded by an army of above 70,000 men—and yields an annual revenue of more than eight millions sterling. And the only restriction to which we bind ourselves, in return, is not to carry her East India commodities to any country but America, where they shall he unladen—a restriction which Britain could very reasonably ask as a security to her carrying trade.

I cannot but conclude, that every reasonable man will see in this article, some evidence of a spirit of ac­commodation on the part of Great Britain, and much proof of influence and ability in our negociator.

No. VIII.

No. IX.

No. X.

No. XI

THUS having attempted to remove every objecti­on of consequence that has been urged against the treaty, I will lay before the public a general view of our trade with the different countries of Europe, Asia and the West-Indies.

It has been stated by the opposers of the treaty that the commercial arrangements want reciprocity—that we concede much, and gain nothing which we did not before enjoy.

With respect to the inland trade to Canada, the converse of the proposition is the truth. The United States gain a free trade to Canada, on equal terms with British subject, which we did not before en­joy. British subjects gain little or nothing by the stipulation, which they did not before enjoy. In this part of the treaty, the advantage is on the side of the United States.

With respect to our foreign commerce, it depends on the will of nations over whom we have no con­troul. All nations claim the right of admitting ships and goods into their ports, or prohibiting them at pleasure; or of burdening our commerce with hea­vy duties. This right is absolute, and when we obtain any privilege in their trade, it is by way of grant or concession. The United States have the same right as to their own ports; but they have not seen fit to exclude the ships of any nation from a free participation of their trade.

The maritime powers of Europe find a navy so necessary to their safety, amidst the contending in­terests of the different nations, that every measure is taken to multiply their seamen, and increase their shipping. Great-Britain is the nation most inte­rested in this system. From her insular situation, a navy is her only defence—to man a navy, she must raise seamen—to secure a supply of seamen she must extend her commerce and her carrying trade as far as possible.

[Page 259] In pursuance of this system of defence, originat­ed her navagation act, in 1660, which restricts her trade to British vessels, and manned mostly with British seamen. That act has been in operation from its first passing to the present day; and to prevent temporary or local inconveniences, from a rigid execution, the parliament have empowered the king and council to dispense with it on occasion, and open the ports of Great Britain, or her colo­nies, at such times and to such nations, as necessities may require

All the nations of Europe have laws respecting their trade, which operate more or less to encou­rage their own commerce, and lay that of their neighbors to their own dominions under restrictions.

A view of the privileges and restrictions of com­merce, was offered to Congress, Dec. 16, 1793, by Mr. Jefferson, which, though not sufficiently cor­rect or comprehensive, throws much light on the subject. These general facts will be sufficient for my purpose in this place.

The admission of our vessels into the British do­minions in Europe, rests now on an annual procla­mation of the king and council. Although interest and expedience may operate to continue the privi­lege of entering those ports at all times, and with vessels of any burden, yet the tenure of the privi­lege is precarious.

By the present treaty, this precarious privilege becomes a right, which cannot be abridged by the executive of the English nation. This is an advan­tage; and Mr. Jefferson, in his Report, admits it to be such. It was an objection he urged against our former state of commerce to Great Britain, that it was precarious—That objection by the treaty is removed.

With respect to her colonial possessions, Great Britain has observed the jealous policy common to all the nations of Europe. The ships of all nations [Page 260] are excluded from her colonies, unless it may be a port in the West Indies, where the Spaniards are permitted to enter with logwood.

In opening her West Indies to American vessels of 70 tons burden, and her East India ports to American-vessels of any burden, she has conceded a privilege, which she grants to no other nation on earth. The sacrifice of the carrying trade on the part of the United States, to obtain admission into the English West Indies, is deemed more than equi­valent, and that stipulation will fall to the ground. But the direct trade to the British East Indies, is generally admitted to be highly beneficial.

Let us contrast these advantages in trade with those we enjoy with other nations.

Our navigation to Spain and Portugal is free: but many of our exports are prohibited, as tobacco, and rice and whale oils to Portugal. The American trade however to Spain and Portugal is highly ad­vantageous in a number of articles. But both these countries prohibit all intercourse with their colo­nial possessions. The ports of Sweden and Den­mark are open; but the duties paid on most of the American productions amount to a prohibition.

Our navigation to the United Netherlands is free; but some of the most material articles of our coun­try, as beef, pork and bread-stuff, are prohibited, as well as by Great-Britain. We can have no in­tercourse with their possessions in the East-Indies.

France, before the war, guaranteed to the Uni­ted States, one or more free ports in Europe, and such ports in the West-Indies as were free. In ge­neral, her West-Indies were open by an arret of the king. Even the coasting trade in France was prin­cipally carried on by foreign vessels.

The revolution has sensibly varied the whole scene of commerce. Necessity has opened all French ports to neutral nations. But a navigation act, simi­lar to that of Great-Britain, was decreed, Septem­ber [Page 261] 2, 1793, to take place January 1, 1794. This, with a long spirited report of Barrere, was trans­mitted to Congress, and published by their order in February, 1794. This act is suspended only on account of the nccessities of France, her commerce being wholly dependant on neutral bottoms. The moment this act shall take place, we shall be cut off from all right to the trade of France, except what is guaranteed by treaty, that is, one or more free ports; and such privileges as we shall be able to obtain by future stipulations.

The decree is in these words:—

On the whole, it is demonstrated that no country on earth yields more extensive privileges to the American merchant, than Great Britain. It is also equally demonstrable that Great Britain yields more privileges in her trade with the United States than she grants to any other nation.

It has been objected to several articles of the treaty, that they are not reciprocal, because from the circumstances of the two countries, British subjects will be principally benefited. Thus the 9th and 10th articles are said to yield advantages to Great Eritain, without an equivalent, because her subjects hold large tracts of land in the United States, and have debts due them to a great amount: whereas American subjects hold little or no land, and have no debts or monies, in Great Britain.

Objections of this kind must proceed from a pee­vish captious disposition. It may just as well be objected that we should have no trade with Great Britain at all, because her exports to this country exceed her imports from it—or because her domini­ons contain double the number of people, that are in the United States. Nay, it may just as well be aid that every man has not an equal right to a high­way, [Page 263] because some use the highway ten times as much as others.

In all conventions between states, an equality in principle constitutes an equivalent. If an article of any treaty gives to both parties a right of doing the same things, and under the same advantages, that article is reciprocal, though one of the parties never make use of the right.

Thus in our treaty with France, we permit French armed vessels to bring their prizes into the ports of the United States. The French also per­mit the American vessels to carry their prizes into French ports. The French are in a condition to use the privilege and do use it every day—We are not at war, and do not use the privilege. But will any man say, that article of the treaty is not mutual? Will any man deny that we have an equivalent for the right conceded to France?

Just so with respect to our commerce with Eng­land or any other power. Suppose a nation to have but a single port for shipping and commerce, and the United States to have a thousand. Each party agrees to open all their ports, and admit the other to a free trade; will it be denied that this is reci­procal? Certainly not. It is equality in the prin­ciple, not in the amount or extent of its operation, which constitutes reciprocity.

If people are disposed to cavil at inequalities of condition, as well as of principle, they may find as many causes of discontent, in all other treaties, as in this with Great-Britain.

The truth is, when our other treaties were form­ed, Americans had confidence in the constituted au­thorities of our country. They believed men, who had made commerce, treaties, and the laws of nati­ons, a study and matter of contemplation, were best capable of negociating treaties. They trusted to the men appointed for this purpose. The great mass of people are not competent to decide what is, [Page 264] or is not for our public interests, in complicated negociations and national compacts; and unless they repose confidence in public characters, we shall for­ever be embroiled with factions.

No. XII.

HAVING in the preceding papers, answered such objections to the treaty, as appear to have any weight, 'I will close this vindication, by ad­dressing to my fellow citizens, some considerations of a more general nature.

It was the public opinion the last year, and it is an opinion still maintained among one description of Americans, that Great Britain has been so hum­bled by France, that she will consent to make great sacrifices for the purpose of securing peace and com­merce with this country. It is also believed by many people, that the kingdom is upon the point of an internal revolution: and that holding in our hands the power of sequestrating the debts of her citizens, we may command, at all times, peace and favorable treatment.

All these opinions, though unquestionably erro­neous, have contributed to raise the public expecta­tion, respecting the success of the treaty, to an un­warrantable pitch.

With respect to the humble condition of Great Britain, where are the proofs? That her land forces were defeated and cut to pieces, the last cam­paign, is undeniable; and there is no question that any combat by land, would be decided in favour of of France. The numbers, the discipline, and the enthusiasm of the French forces on land render them irresistible. But the best troops and the best discipline, without other resources, will not main­tain the greatness of a state or kingdom, for any glenth of time.

[Page 265]France now supports her armies mostly upon her conquered countries. Her finances are exhausted; and what is, if possible, a more serious calamity, her internal dissentions debilitate her force, distract her councils, and disconcert her operations.

The plan of Robespierre was a system of despair. By putting every thing in requisition, the persons of men, their goods, provisions, and money, the whole force of France was collected to a point, and the whole energy of that force was exerted to de­feat the most formidable combination ever raised against the independence of a nation.

This measure was perhaps indispensable in the crisis when it was adopted. But unfortunately vio­lent exertions in the body politic, as well as in the human body, are ever followed by debility and lan­guor. The system of requisitions and the maximum, were calculated to destroy the capital of a country, which, in all cases, ought to be left untouched, as a source of further productions. The interest or in­come only of a country can be safely used for na­tional purposes; and when a state is compelled to seize the capital stock, though its exertions may be great, they must certainly be of short duration.

But this is not the only calamity incurred by the system of terror. To enforce such an arbitrary sys­tem, recourse must be had to violent punishment, for refusals to comply with it; and the summary mode of condemning, as well as the sanguinary process of executing, tend to excite all the malicious and revengeful passions of men. The guillotine of France has left every deadly and rancorous pas­sion, waiting only for a favourable moment for ven­geance. The surviving friends of those who fell victims, to the system of terror, will not easily for­get or forgive the injuries they suffered; and thus that terrible despotism, which for a few months, com­pelled all men to unite to defeat foreign foes and to crush internal insurrections; that system has [Page 266] spread over France the seeds of faction and dissen­tion, which will afflict the country and weaken al its exertions, for at least a generation to come. Thus the last season, the victories of France by land, astonished all nations, and spread dismay through Europe, while her frigates scoured the ocean, and marred the commerce of her enemies. But the present season, her armies and her fleet are inactive, her resources fail, and all is debility and languor.

Great Britain, on the other hand, though her army was destroyed in the Netherlands, retains all her activity and resources. Her territories have not been the seat of war; her land has been under full cultivation, her manufactures have been carried on as usual, her goods are exported nearly as cheap, and in nearly the same quantities, as in time of peace; her government retains its vigour, and her fleet, notwithstanding a scarcity of seamen, still rides mis­tress of the ocean. The commerce of Great Bri­tain, though a little impaired, still exceeds that of any other country; and the government has not been compelled to distress her trade to man her navy. Were there a pressing necessity for so violent a step, that country, by stripping her merchantmen for a time, would bring upon the ocean a fleet supe­rior to any that has ever appeared under one com­mand. But Great Britain has not yet been com­pelled to adopt this ruinous expedient; she has not materially impaired her commerce by impres­sing seamen—she has not entrenched upon the capi­tal stock of her husbandmen and manufacturers. Her debt has indeed been augmented; but still im­mense sums of money are offered, and the only question, with government is whose money shall be received on loan; for the competitors, are nume­rous. Such is the monied capital of that country, and such the resources that Great Britain will pro­bably [Page 267] be able to carry on the war longer than any other power.

Nor is the idea of an approaching revolution, well founded. Ireland may perhaps give trouble: but the government of England has seldom ever been supported by a more numerous and powerful majority of the people. The private associations in England and Scotland, gave some uneasiness for a time; but the moment government called for a sus­pension of the habeas corpus act, it was granted, and the executive dissipated all private societies, with their plans of revolution. The ease with which this whole business was conducted, certainly does not mark either fear or weakness in the administration of the government of Great Britain.

Where, then, is the ground for supposing Great Britain in a distressed state of humiliation, compel­ling her to make sacrifices to the United States?

On the contrary, Great Britain at this moment, maintains as commanding an attitude among the powers of the earth, as at any former period. All the hopes of Americans, founded on an opinion of the depressed state of that nation, are wholly delu­sory. Nor can we expect any thing from the gene­rosity or good will of the British, or any other na­tion. National generosity is a mere phantom of the imagination. It is to the interest, or, at most, to the jastice of a nation we must address ourselves; and no nation will make concessions beyond what these require. We are not in a situation to command any foreign nation, to enforce our claims, or to com­pel the exercise of justice.

If our sanguine enthusiasts are mistaken totally as to the present power of Great Britain, they are equally so, as to the force and effect of sequestration. The injustice of attacking private debts for national wrongs, is generally admitted; but many people contend that it may be necessary at times to resort to this measure, as the only effectual weapon in our [Page 268] power, to terrify Great Britain, a perfidious na­tion into a sense of justice.

It is surprising how such reasoners mistake the real and certain effects of such a step. Any man who will give himself time to reflect on the pride of nations, and especially of the English nation, must be convin­ed, that the use of this weapon, instead of inducing concessions on the part of Great-Britain, would ex­cite every hostile feeling, not only in the government, but in the very creditors whose debts should be seques­tered. Such a violation of all good faith, such an attack upon commercial confidence, as the sequestra­tion of private debts, to avenge national injuries, would put it out of our power to accommodate diffe­rences but by the sword. It would provoke a war of double sury; and the very man whose debts should be detained, would be the first to encourage and the last to abandon the contest.

All the high raised expectations of our citizens of obtaining from Great-Britain in her present state, hu­miliating concessions which her pride would forbid her to yield in time of peace, are supported by not one circumstance of rational probability. People who dwell on such prospects of success, are grossly deceived, both as to facts, and as to the character of the English nation.

But Judge Rutledge of South Carolina has, on this subject, uttered the silliest expressions that ever fell from human lips. "England (says he) is hoping for peace on whatever terms France may grant it: she is reduced to the last gasp, and were America to seize her by the throat, she would expire in agonies at her feet."

A man must be little less than insane, to utter such absurd ideas, especially at a moment when Great-Bri­tain possesses more actual resources, the sinews of war, than all the other powers at war, even France included. And no man, but an insolvent debtor, who hates his creditor, because he has injured him, would wish to [Page 269] see a great agricultural, manufacturing, and commer­cial nation expiring in agonies. Whatever be the inju­juries Great-Britain has done this country, it is not for the interest of mankind, that she should be blotted out of existence. In no country on earth do the Ameri­can merchants find more good faith, fair dealing, aad convenient credit, than among British merchants—no creditors are more indulgent to debtors than the Bri­tish—and no country on earth finds extensive credit more useful than the United States.

Whatever be the resentments of our citizens tow­ards Great Britain, they may rest assured of one fact, and it is of no small moment to some of the United States, that the treatment Americans will receive from that country will be more friendly, when the conduct of American debtors is more just.

Another objection to the treaty, or to any treaty with Great-Britain, is, that it begets an unnatural alli­ance between a monarchy and a republic. This is clearly the most trifling objection ever offered, and is beneath a serious answer. And those who make it, ought to blush at their inconsistency, especially as these very men are rejoicing at the late treaty between France and the monarch of Prussia, and earnestly ex­pecting every day, to hear of a treaty between France and Spain.

On the whole, let me ask my fellow citizens what sacrifices we may make by the treaty?

We have old inveterate disputes with Great-Britain, which must be terminated. War or accommodation are the alternatives. If we wish a war, we waste the blood and treasure of America, without an object: [...]or at the close of the war, the old disputes will re­main, and new ones be originated. Instead of better­ing our condition, we render it infinitely worse by hostilities.

Is it not wise, therefore to compromise these differ­ences? And though considerable time and expense, perhaps some sacrifices of just claims, should be incur­red [Page 270] on our part, yet between these evils, and the con­tinuance of inveterate enmity and hostile views, on which side does the balance lie? Every reflecting man must say. on the side of accommodation and peace.

The commercial part of the treaty is of a tempo­rary nature; and even if some sacrifices were to be made, these will not come in competition with the other great and important objects of the treaty. But it is not true that any material sacrifice is made in the commercial part of this compact. We do not cede one material privilege which Great Britain does not en­joy by the laws of nations or the laws of the United States. I am bold in the assertion, and call on my op­posers to name the part in which such sacrifice is made.

On the other hand, some material concessions on the part of Great Britain, are made to the United States by the treaty.

It is said, Great Britain may enter with her ships into all the ports of the United States.—True; but she enjoys that privilege without this treaty. She gains nothing in this respect except that she changes a precarious privilege for a right; just as we do, in the trade to the British European dominions.

It is said, we bind ourselves not to increase the du­ties on British tonnage and goods imported in her ships beyond what we lay on those of other nations.—True; we agree on this head, to treat Great Britain as well as the most favoured nation. If this is a concession on our part, it cannot be a material sacrifice, for we have an equivalent in this, that Great Britain stipulates the same thing to the United States.

It is said, we cede to Great Britain the right of in­creasing duties on our tonnage to equal our present duties on hers and on goods imported in British bot­toms. Nothing can be more puerile than such an al­legation. In this respect we cede nothing.—Great Britain had that right before the treaty; and her right is precisely the same as before.

[Page 271]It has been said, we cede to Great Britain the right of seizing our vessels and taking the enemy's proper­ty; and that we have made naval stores and provisions contraband by treaty.

These charges have been proved not true. Great Britain enjoys these rights by the law of nations, inde­pendent of all treaties.

We have therefore made very few sacrifices in this part of the treaty; but we have gained something. We have obtained a permanence of trade to Great Britain. We have gained a free trade to Canada and the British East Indies, without any considerable con­cessions, and what is more, we have preserved the BLESSINGS OF PEACE.

Why then, my fellow Citizens, will you not leave the management of this treaty where the Con­stitution has placed it? What ground have you to suppose, that the President, our late Envoy and the majority of the Senate, have, in a moment and on this single occasion, deserted the interest of our country? What reason have you to believe that old tried patriots have renounced the uniform prin­ciples of their lives, and turned apostates? Is there a shadow of reason to believe, that men grown grey in the service of their country, whose patriotism and virtue were never suspected, have now in the evening of life, and at the close of all their active public scenes, commenced traitors? You cannot be­lieve insinuations of this kind. The suggestion of British gold and undue influence, is the work of dark malicious hearts, detested by all good men, and discredited by the very children in the streets.

No, my countrymen, you have been deceived. Your passions have been taken by surprise; you have been precipitated into rush opinions, and vio­lent measures, by a set of men who are the foes of our present free and happy government and its ad­ministration. You may be assured, there is a con­federation of characters, from New-Hampshire to [Page 272] Georgia arrayed in opposition, either to the [...]nsti­tution of the United States, to its administration or to particular men in office. The opposition of the principal men in this confederacy can be traced to some known causes, originally of a personal nature. Disappointment in application for some office, or the failure of some favourite scheme in their political system, has converted many of the friends of our late revolution, into determined opposers of the general system of the present administration. These men will never be contented [...]ill they can displace the present officers of government, and introduce themselves, their friends, and their measures, into our councils. You may rest assured, that most of the serment raised against the Treaty, originated with men of this description.

This confederacy was formed and is still maintained and strengthened, by spreading jealousies and sus­picions among the people, who, tho' honest in their views, are very liable to be misled by artful men. One of the most successful weapons ever wielded by this coalition of disappointed men, is furnished them by the present war in Europe. The combi­nation of powers against France, which we all re­probate, is said to be a combination against liberty in general. and if France should fail of success, it is said we shall be the next object of attack.

This is a mere suggestion of our restless men, to alarm your fears, and drive you, if possible, from your neutral ground into hostilities. The sugges­tion was first made by the late French minister, whose mission to this country was for the express purpose of slattering, intriging, or forcing you into the war. His instructions are clear and explicit on this point.

That minister was displaced, and his views coun­teracted by the firmness of our President, seconded by the northern states. But the party which ori­ginally rallied under that man, still exists, and forms [Page 273] a league, co-extensive with the United States con­nected in all its parts and acting by a single im­pulse.

Thus, in the infancy of our empire, the bane of all republics, is already diffused over our country, and poisons the whole body politic. Faction is a disease which has proved fatal to all popular go­vernments; but in America it has assumed an aspect more formidable than in any other country. In an­cient republics, popular commotions were sudden things, excited by the emergencies of the moment, bursting instantly on the existing government, pro­ducing a revolution, banishing a tyrant who was powerful, or a patriot who was popular, and an ob­ject of jealousy to some ambitious competitor.

But in America, faction has assumed consistency and system—it is a conspiracy perpetually existing—an opposition organized and disciplined, for the purposes of defeating the regular exercise of the constitutional powers of our government, whenever a measure does not please the secret leaders of the Confederacy:—

My countrymen, be watchful of the progress of the associations, formed on the plan of the Jacobin Society in France. That society was a powerful in­strument in the work of demolishing the monarchy; but on the ruins of monarchy, it raised the most frightful despotism recorded in history. Leagued with sister societies in every village and city of France, the Jacobins governed the Convention, Pa­ris and all France for a long time, and filled it with blood, confiscation and ruin. So terrible was the tyranny of these associations, that the Convention were compelled to prohibit their meetings; but so numerous are the members, and so active the spirit of revenge, that two or three insurrections have been raised by the Jacobins in Paris, blood has been shed in various parts by that faction, they have been in possession of Toulon, a civil war is often excited [Page 274] and it seems yet doubtful whether the national re­presentatives, ex private unauthorized clubs shall go­vern France.

My countrymen, you are threatened with a simi­larevil. Under the pretended mask of patriotism and watching over our liberties, private associations are formed and extending their influence over our coun­try. The popular Societies of Francedid the same. The cry of patriotism was forever on their tongue: but when they became strong enough, they ruled with a rod of iron. Fire, sword and the guillotine were instrments of their administration.

Be not deceived into a belief that our citizens are incapable of similar outrages. Violent men may be found in every country, and already are the heads of our government denounced as traitors; already is our country threatened with blood and civil war.—If men who regard their rights, and who believe the constitution and laws alone to be the guarantee of those rights, do not unite and show a formidable countenance against all irregular opposition to those laws, our whole country will be speedily subject to a confederacy of men, a small minority indeed, but bold, though secret in their machinations, indefati­gable in their measures, and determined on success.

It is not the treaty alone which is oppesed; this is a convenient instrument for them to wield; but the causes of opposition lie deeper. The treaty is not [...]together satisfactory; but if carried into cffect, it will not be followed with any dangerous consequences, except what will be created by its op­posers. If last to go peaceably into operation, it would have no general effect on business which peo­ple at large could feel—agriculture would still slou­rish; trade would be carried on as usual with little variation; national disputes would be in a train of adjustment, and peace and tranqu [...]lity would reign throughout our happy land. But if the opposers of the treaty can possibly embroil our country in ci­vil [Page 275] war, it will be effected—From such a frightful calamity, may your good sense, my fellow citizens, preserve us!

Should the treaty, not be ratisied, and should the consequences be foreign war, the people, not the go­vernment of America, must be answerable for all its melancholy consequences.

No period of our political life has been more cri­tical—or deserving of more temper on the part of the people and of more prudence and firmness on the part of our executive.

One party wishes to dra [...] loser our alliance with France, even at the hazard of war with all the world. Our government and its supporters wish for prefect neutrality towards all the powers at war—they wish for strict justice and impartiality to be pre­served towards all parties, and they wish for friend­ly intercourse with all—in fine, they wish for unin­terrupted peace.

When parties are thus marshalled, it behoves all good men to determine on which side, they will range themselves. One or the other must prevail; and on the final prevalence of one or the other of these parties, are suspended the peace, prosperity and happiness of the United States.