There is some difficulty in fixing on any completely representative

oration to represent the republican point of view covering this period.

Gallatin's speech on the Jay Treaty together with Nicholas' argument for

the repeal of the sedition law may serve this purpose. The speech of

Nicholas shows the instinctive sympathy of the party for the individual

rather than for the government. It shows the force with which this

sympathy drove the party into a strict construction of the Constitution.

It seems also to bear the strongest internal indications that it was

inspired, if not entirely written, by the great leader of the party,

Jefferson. The federalists had used the popular war feeling against

France in 1798, not only to press the formation of an army and a navy

and the abrogation of the old and trouble-some treaties with France, but

to pass the alien and sedition laws as well. The former empowered the

President to expel from the country or imprison any alien whom he should

consider dangerous to the peace and safety of the United States. The

latter forbade, under penalty of fine and imprisonment, the printing or

publishing of any "false, scandalous, or malicious writings" calculated

to bring the Government, Congress, or the President into disrepute, or

to excite against them the hatred of the good people of the United

States, or to stir up sedition. It was inevitable that the republicans

should oppose such laws, and that the people should support them in

their opposition. At the election of 1800, the federal party was

overthrown, and the lost ground was never regained. With Jefferson's

election to the presidency, began the democratic period of the United

States; but it has always been colored strongly and naturally by the

federal bias toward law and order.

ALBERT GALLATIN,

OF PENNSYLVANIA. (BORN 1761, DIED 1849.)

ON THE BRITISH TREATY

--HOUSE OF REPRESENTATIVES, APRIL 26, 1796.

MR. CHAIRMAN:

I will not follow some of the gentlemen who have preceded me, by

dwelling upon the discretion of the legislature; a question which has

already been the subject of our deliberations, and been decided by a

solemn vote. Gentle-men who were in the minority on that question may

give any construction they please to the declaratory resolution of the

House; they may again repeat that to refuse to carry the treaty into

effect is a breach of the public faith which they conceive as being

pledged by the President and Senate. This has been the ground on which a

difference of opinion has existed since the beginning of the discussion.

It is because the House thinks that the faith of the nation cannot, on

those subjects submitted to the power of Congress, be pledged by any

constituted authority other than the legislature, that they resolved

that in all such cases it is their right and duty to consider the

expediency of carrying a treaty into effect. If the House think the

faith of the nation already pledged they can not claim any discretion;

there is no room left to deliberate upon the expediency of the thing.

The resolution now under consideration is merely "that it is expedient

to carry the British treaty into effect," and not whether we are bound

by national faith to do it. I will therefore consider the question of

expediency alone; and thinking as I do that the House has full

discretion on this subject, I conceive that there is as much

responsibility in deciding in the affirmative as in rejecting the

resolution, and that we shall be equally answerable for the consequences

that may follow from either.

It is true, however, that there was a great difference between the

situation of this country in the year 1794, when a negotiator was

appointed, and that in which we are at present; and that consequences

will follow the refusal to carry into effect the treaty in its present

stage, which would not have attended a refusal to negotiate and to enter

into such a treaty. The question of expediency, therefore, assumes

before us a different and more complex shape than when before the

negotiator, the Senate, or the President. The treaty, in itself and

abstractedly considered, may be injurious; it may be such an instrument

as in the opinion of the House ought not to have been adopted by the

Executive; and yet such as it is we may think it expedient under the

present circumstances to carry it into effect. I will therefore first

take a view of the provisions of the treaty itself, and in the next

place, supposing it is injurious, consider, in case it is not carried

into effect, what will be the natural consequences of such refusal.

The provisions of the treaty relate either to the adjustment of past

differences, or to the future intercourse of the two nations. The

differences now existing between Great Britain and this country arose

either from non-execution of some articles of the treaty of peace or

from the effects of the present European war. The complaints of Great

Britain in relation to the treaty of 1783 were confined to the legal

impediments thrown by the several States in the way of the recovery of

British debts. The late treaty provides adequate remedy on that subject;

the United States are bound to make full and complete compensation for

any losses arising from that source, and every ground of complaint on

the part of Great Britain is removed.

Having thus done full justice to the other nation, America has a right

to expect that equal attention shall be paid to her claims arising from

infractions of the treaty of peace, viz., compensation for the negroes

carried away by the British; restoration of the western posts, and

indemnification for their detention.

On the subject of the first claim, which has been objected to as

groundless, I will observe that I am not satisfied that the construction

given by the British government to that article of the treaty is

justified even by the letter of the article. That construction rests on

the supposition that slaves come under the general denomination of

booty, and are alienated the moment they fall into possession of an

enemy, so that all those who were in the hands of the British when the

treaty of peace was signed, must be considered as British and not as

American property, and are not included in the article. It will,

however, appear by recurring to Vattel when speaking of the right of

"Postliminium," that slaves cannot be considered as a part of the booty

which is alienated by the act of capture, and that they are to be ranked

rather with real property, to the profits of which only the captors are

entitled. Be that as it may, there is no doubt that the construction

given by America is that which was understood by the parties at the time

of making the treaty. The journals of Mr. Adams, quoted by a gentleman

from Connecticut, Mr. Coit, prove this fully; for when he says that the

insertion of this article was alone worth the journey of Mr. Laurens

from London, can it be supposed that he would have laid so much stress

on a clause, which, according to the new construction now attempted to

be given, means only that the British would commit no new act of

hostility--would not carry away slaves at that time in possession of

Americans? Congress recognized that construction by adopting the

resolution which has been already quoted, and which was introduced upon

the motion of Mr. Alexander Hamilton; and it has not been denied that

the British ministry during Mr. Adams' embassy also agreed to it.

But when our negotiator had, for the sake of peace, waived that claim;

when he had also abandoned the right which America had to demand an

indemnification for the detention of the posts, although he had conceded

the right of a similar nature, which Great Britain had for the detention

of debts; when he had thus given up everything which might be supposed

to be of a doubtful nature, it might have been hoped that our last

claim--a claim on which there was not and there never had been any

dispute--the western posts should have been restored according to the

terms of the treaty of peace. Upon what ground the British insisted, and

our negotiator conceded, that this late restitution should be saddled

with new conditions, which made no part of the original contract, I am

at a loss to know. British traders are allowed by the new treaty to

remain within the posts without becoming citizens of the United States;

and to carry on trade and commerce with the Indians living within our

boundaries without being subject to any control from our government. In

vain is it said that if that clause had not been inserted we would have

found it to our interest to effect it by our own laws. Of this we are

alone competent judges; if that condition is harmless at present it is

not possible to foresee whether, under future circumstances, it will not

prove highly injurious; and whether harmless or not, it is not less a

permanent and new condition imposed upon us. But the fact is, that by

the introduction of that clause, by obliging us to keep within our

jurisdiction, as British subjects, the very men who have been the

instruments used by Great Britain to promote Indian wars on our

frontiers; by obliging us to suffer those men to continue their commerce

with the Indians living in our territory, uncontrolled by those

regulations which we have thought necessary in order to restrain our own

citizens in their intercourse with these tribes, Great Britain has

preserved her full influence with the Indian nations. By a restoration

of the posts under that condition we have lost the greatest advantage

that was expected from their possession, viz.: future security against

the Indians. In the same manner have the British preserved the

commercial advantages which result from the occupancy of those posts, by

stipulating as a permanent condition, a free passage for their goods

across our portages without paying any duty.

Another article of the new treaty which is connected with the provisions

of the treaty of 1783 deserves consideration; I mean what relates to the

Mississippi. At the time when the navigation of that river to its mouth

was by the treaty of peace declared to be common to both nations, Great

Britain communicated to America a right which she held by virtue of the

treaty of 1763, and as owner of the Floridas; but since that cession to

the United States, England has ceded to Spain her claim on the Floridas,

and does not own at the present time an inch of ground, either on the

mouth or on any part of that river. Spain now stands in the place of

Great Britain, and by virtue of the treaty of 1783 it is to Spain and

America, and not to England and America, that the navigation of the

Mississippi is at present to be common. Yet, notwithstanding this change

of circumstances, we have repeated that article of the former treaty in

the late one, and have granted to Great Britain the additional privilege

of using our ports on the eastern side of the river, without which, as

they own no land thereon, they could not have navigated it. Nor is this

all. Upon a supposition that the Mississippi does not extend so far

northward as to be intersected by a line drawn due west from the Lake of

the Woods, or, in other words, upon a supposition that Great Britain has

not a claim even to touch the Mississippi, we have agreed, not upon what

will be the boundary line, but that we will hereafter negotiate to

settle that line. Thus leaving to future negotiation what should have

been finally settled by the treaty itself, in the same manner as all

other differences were, is calculated for the sole purpose, either of

laying the foundation of future disputes, or of recognizing a claim in

Great Britain on the waters of the Mississippi, even if their boundary

line leaves to the southward the sources of that river. Had not that

been the intention of Great Britain the line would have been settled at

once by the treaty, according to either of the two only rational ways of

doing it in conformity to the treaty of 1783, that is to say, by

agreeing that the line should run from the northernmost sources of the

Mississippi, either directly to the western extremity of the Lake of the

Woods, or northwardly till it intersected the line to be drawn due west

from that lake. But by repeating the article of the treaty of 1783; by

conceding the free use of our ports on the river, and by the insertion

of the fourth article, we have admitted that Great Britain, in all

possible events, has still a right to navigate that river from its

source to its mouth. What may be the future effects of these provisions,

especially as they regard our intercourse with Spain, it is impossible

at present to say; but although they can bring us no advantage, they may

embroil us with that nation: and we have already felt the effect of it

in our late treaty with Spain, since we were obliged, on account of that

clause of the British treaty, to accept as a gift and a favor the

navigation of that river which we had till then claimed as a right.

But if, leaving commercial regulations, we shall seek in the treaty for

some provisions securing to us the free navigation of the ocean against

any future aggressions on our trade, where are they to be found? I can

add nothing to what has been said on the subject of contraband articles:

it is, indeed, self-evident, that, connecting our treaty with England on

that subject with those we have made with other nations, it amounts to a

positive compact to supply that nation exclusively with naval stores

whenever they may be at war. Had the list of contraband articles been

reduced--had naval stores and provisions, our two great staple

commodities, been declared not to be contra-band, security would have

been given to the free exportation of our produce; but instead of any

provision being made on that head, an article of a most doubtful nature,

and on which I will remark hereafter, has been introduced. But I mean,

for the present, to confine my observations to the important question of

free bottoms making free goods. It was with the utmost astonishment that

I heard the doctrine advanced on this floor, that such a provision, if

admitted, would prove injurious to America, inasmuch as in case of war

between this country and any other nation, the goods of that nation

might be protected by the English flag. It is not to a state of war that

the benefits of this provision would extend; but it is the only security

which neutral nations can have against the legal plundering on the high

seas, so often committed by belligerent powers. It is not for the sake

of protecting an enemy's property; it is not for the sake of securing an

advantageous carrying trade; but it is in order effectually to secure

ourselves against sea aggressions, that this provision is necessary.

Spoliations may arise from unjust orders, given by the government of a

belligerent nation to their officers and cruisers, and these may be

redressed by application to and negotiation with that order. But no

complaints, no negotiations, no orders of government itself, can give

redress when those spoliations are grounded on a supposition, that the

vessels of the neutral nation have an enemy's property on board, as long

as such property is not protected by the flag of the neutral nation; as

long as it is liable to be captured, it is not sufficient, in order to

avoid detention and capture, to have no such property on board. Every

privateer, under pretence that he suspects an enemy's goods to be part

of a cargo, may search, vex, and capture a vessel; and if in any corner

of the dominions of the belligerent power, a single judge can be found

inclined, if not determined, to condemn, at all events, before his

tribunal, all vessels so captured will be brought there, and the same

pretence which caused the capture will justify a condemnation. The only

nation who persists in the support of this doctrine, as making part of

the law of nations, is the first maritime power of Europe, whom their

interest, as they are the strongest, and as there is hardly a maritime

war in which they are not involved, leads to wish for a continuation of

a custom which gives additional strength to their overbearing dominion

over the seas. All the other nations have different sentiments and a

different interest. During the American war, in the year 1780, so fully

convinced were the neutral nations of the necessity of introducing that

doctrine of free bottoms making free goods, that all of them, excepting

Portugal, who was in a state of vassalage to, and a mere appendage of,

Great Britain, united in order to establish the principle, and formed

for that purpose the alliance known by the name of the armed neutrality.

All the belligerent powers, except England, recognized and agreed to the

doctrine. England itself was obliged, in some measure, to give, for a

while, a tacit acquiescence. America, at the time, fully admitted the

principle, although then at war.

Since the year 1780, every nation, so far as my knowledge goes, has

refused to enter into a treaty of commerce with England, unless that

provision was inserted. Russia, for that reason, would not renew their

treaty, which had expired in 1786; although I believe that, during the

present war, and in order to answer the ends of the war, they formed a

temporary convention, which I have not seen, but which, perhaps, does

not include that provision. England consented to it in her treaty with

France, in 1788, and we are the first neutral nation who has abandoned

the common cause, given up the claim, and by a positive declaration

inserted in our treaty, recognized the contrary doctrine. It has been

said that, under the present circumstances, it could not be expected

that Great Britain would give up the point; perhaps so; but the

objection is not, that our negotiator has not been able to obtain that

principle, but that he has consented to enter into a treaty of commerce

which we do not want, and which has no connection with an adjustment of

our differences with Great Britain, without the principle contended for

making part of that treaty. Unless we can obtain security for our

navigation, we want no treaty; and the only provision which can give us

that security, should have been the _sine qua non_ of a treaty. On the

contrary, we have disgusted all the other neutral nations of Europe,

without whose concert and assistance there is but little hope that we

shall ever obtain that point; and we have taught Great Britain that we

are disposed to form the most intimate connections with her, even at the

expense of recognizing a principle the most fatal to the liberty of

commerce and to the security of our navigation.

But, if we could not obtain anything which might secure us against

future aggressions, should we have parted, without receiving any

equivalent, with those weapons of self-defence, which, although they

could not repel, might, in some degree, prevent any gross attacks upon

our trade--any gross violation of our rights as a neutral nation? We

have no fleet to oppose or to punish the insults of Great Britain; but,

from our commercial relative situation, we have it in our power to

restrain her aggressions, by restrictions on her trade, by a total

prohibition of her manufactures, or by a sequestration of the debts due

to her. By the treaty, not satisfied with receiving nothing, not

satisfied with obtaining no security for the future, we have, of our own

accord, surrendered those defensive arms, for fear they might be abused

by ourselves. We have given up the two first, for the whole time during

which we might want them most, the period of the present war; and the

last, the power of sequestration, we have abandoned for ever: every

other article of the treaty of commerce is temporary; this perpetual.

I shall not enter into a discussion of the immorality of sequestering

private property. What can be more immoral than war; or plundering on

the high seas, legalized under the name of privateering? Yet

self-defence justifies the first, and the necessity of the case may, at

least in some instances, and where it is the only practicable mode of

warfare left to a nation, apologize even for the last. In the same

manner, the power of sequestration may be resorted to, as the last

weapon of self-defence, rather than to seek redress by an appeal to

arms. It is the last peace measure that can be taken by a nation; but

the treaty, by declaring, that in case of national differences it shall

not be resorted to, has deprived us of the power of judging of its

propriety, has rendered it an act of hostility, and has effectually

taken off that restraint, which a fear of its exercise laid upon Great

Britain.

Thus it appears that by the treaty we have promised full compensation to

England for every possible claim they may have against us, that we have

abandoned every claim of a doubtful nature, and that we have consented

to receive the posts, our claim to which was not disputed, under new

conditions and restrictions never before contemplated; that after having

obtained by those concessions an adjustment of past differences, we have

entered into a new agreement, unconnected with those objects, which have

heretofore been subjects of discussion between the two nations; and that

by this treaty of commerce and navigation, we have obtained no

commercial advantage which we did not enjoy before, we have obtained no

security against future aggressions, no security in favor of the freedom

of our navigation, and we have parted with every pledge we had in our

hands, with every power of restriction, with every weapon of

self-defence which is calculated to give us any security.

From the review I have taken of the treaty, and the opinions I have

expressed, it is hardly necessary for me to add, that I look upon the

instrument as highly injurious to the interests of the United States,

and that I earnestly wish it never had been made; but whether in its

present stage the House ought to refuse to carry it into effect, and

what will be the probable consequences of a refusal, is a question which

requires the most serious attention, and which I will now attempt to

investigate.

Should the treaty be finally defeated, either new negotiations will be

more successful or Great Britain will refuse to make a new arrangement,

and leave things in the situation in which they now are, or war will be

the consequence. I will, in the course of my observations, make some

remarks on the last supposition. I do not think that the first will be

very probable at present, and I am of opinion that, under the present

circumstances, and until some change takes place in our own or in the

relative political situation of the European nations, it is to be

apprehended that, in such a case, new negotiations will either be

rejected or prove unsuccessful. Such an event might have perhaps

followed a rejection of the treaty even by the Senate or by the

President. After the negotiator employed by the United States had once

affixed his signature it must have become very problematical, unless he

had exceeded his powers, whether a refusal to sanction the contract he

had made would not eventually defeat, at least for a time, the prospect

of a new treaty. I conceive that the hopes of obtaining better

conditions by a new negotiation are much less in the present stage of

the business than they were when the treaty was in its inchoate form

before the Executive; and in order to form a just idea of the

consequences of a rejection at present, I will contemplate them upon

this supposition, which appears to me most probable, to wit, that no new

treaty will take place for a certain period of time.

In mentioning my objections to the treaty itself, I have already stated

the advantages which in my opinion would result to the United States

from the non-existence of that instrument; I will not repeat, but

proceed at once to examine what losses may accrue that can be set off

against those advantages.

The further detention of the posts, the national stain that will result

from receiving no reparation for the spoliations on our trade, and the

uncertainty of a final adjustment of our differences with Great Britain,

are the three evils which strike me as resulting from a rejection of the

treaty; and when to those considerations I add that of the present

situation of this country, of the agitation of the public mind, and of

the advantages that will arise from union of sentiments, however

injurious and unequal I conceive the treaty to be, however repugnant it

may be to my feelings, and perhaps to my prejudices, I feel induced to

vote for it, and will not give my assent to any proposition which will

imply its rejection. But the conduct of Great Britain since the treaty

was signed, the impressment of our seamen, and their uninterrupted

spoliations on our trade, especially by seizing our vessels laden with

provisions, a proceeding which they may perhaps justify by one of the

articles of the treaty, are such circumstances as may induce us to pause

awhile, in order to examine whether it is proper, immediately and

without having obtained any explanation thereon, to adopt the resolution

on the table, and to pass, at present, all the laws necessary to carry

the treaty into effect.

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