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.