RETURN OF JAY'S TREATY--IT IS PROCLAIMED TO BE THE LAW OF THE
LAND--THE OPPOSITION OFFENDED--HOUSE OF REPRESENTATIVES CALL UPON
THE PRESIDENT FOR ALL PAPERS RELATING TO THE TREATY--DEBATES
THEREON--ACTION OF THE CABINET--THE PRESIDENT'S REPLY--HE REFUSES TO
ACCEDE TO THE CALL OF THE HOUSE--CONSIDERATION OF HIS REFUSAL IN THE
HOUSE OF REPRESENTATIVES--BLOUNT'S RESOLUTIONS--DEBATES ON THE
TREATY--SPEECHES OF MADISON, GALLATIN, AND AMES--EFFECT OF AMES'S
SPEECH--DECISION OF THE COMMITTEE OF THE WHOLE HOUSE--FINAL VOTE.
The treaty with Great Britain, ratified by King George, was returned to
the United States government in February, much to the relief of its
friends, and indeed of all parties. "We are wasting our time in the most
insipid manner, waiting for the treaty," wrote John Adams to his wife on
the tenth of January. "Nothing of any consequence will be done till that
arrives, and is mauled and abused, and then acquiesced in. For the
_antis_ must be more numerous than I believe them, and made of sterner
stuff than I conceive, if they dare hazard the surrender of the posts
and the payment for spoliations, by any resolution of the house that
shall render precarious the execution of the treaty on our part."
The federal constitution declaring a treaty, when duly ratified by the
contracting powers, to be the law of the land, Washington, on the last
day of February, issued a proclamation announcing the one just concluded
with Great Britain, as such. This had been a mooted point. The
president's proclamation decided that the treaty was law without further
action of Congress; and it now remained for that body to make provision
for carrying it into effect. The president sent it to both houses on the
first day of March, with the following brief message:--
"The treaty of amity, commerce, and navigation concluded between
the United States and his Britannic majesty having been duly
ratified, and the ratifications having been exchanged at London on
the twenty-eighth of October, one thousand, seven hundred and
ninety-five, I have directed the same to be promulgated, and
herewith transmit a copy thereof for the information of Congress."
This action was the signal for both parties to prepare for a great
struggle. The opposition, who had openly denied the right of the
president to even _negotiate_ a treaty of commerce, because, they said,
it practically gave to the executive and senate the power to regulate
commerce, were highly offended because the president had ventured to
issue this proclamation before the sense of the house of representatives
had been declared on the obligations of the instrument. This feeling
assumed tangible form when, on the seventh of March, Edward Livingston,
of New York, offered a resolution calling upon the president for copies
of all papers relating to the treaty. This resolution, as modified on
motion of Madison, was as follows:--
"_Resolved_, That the president of the United States be requested
to lay before this house a copy of the instructions given to the
minister of the United States, who negotiated the treaty with Great
Britain, communicated by his message of the first instant, together
with the correspondence and documents relating to the said treaty,
excepting such of said papers as any existing negotiation may
render improper to be disclosed."
A warm debate immediately arose, and speedily took the form of a
discussion on the nature and extent of the treaty-making power. "The
friends of the administration maintained," says Marshall, "that a treaty
was a contract between two nations, which, under the constitution, the
president, by and with the advice and consent of the senate, had a right
to make; and that it was made when, by and with such advice and consent,
it had received his final act. Its obligations then became complete on
the United States, and to refuse to comply with its stipulations was to
break the treaty and to violate the faith of the nation.
"The opposition contended that the power to make treaties, if
applicable to every object, conflicted with powers which were vested
exclusively in Congress. That either the treaty-making power must be
limited in its operations, so as not to touch objects committed by the
constitution to Congress, or the assent and co-operation of the house of
representatives must be required to give validity to any compact, so far
as it might comprehend those objects. A treaty, therefore, which
required an appropriation of money or any act of Congress to carry it
into effect, had not acquired its obligatory form until the house of
representatives had exercised its powers in the case. They were at full
liberty to make, or to withhold, such appropriation, or other law,
without incurring the imputation of violating any existing obligation,
or breaking the faith of the nation."[91]
At the outset, a member had inquired the object of Mr. Livingston's
motion, since on that would depend its propriety. It was contended, that
if the impeachment of either Mr. Jay or the president was intended, it
was a proper motion; but not so if the constitutionality of the treaty
was to be questioned, because that must depend on the treaty itself. It
was further inquired whether the house proposed to consider whether a
better treaty might not have been made. Mr. Livingston did not disavow
either of the objects suggested, but stated as his principal reason, a
firm conviction that the house was vested with a discretionary power,
allowing it to carry the treaty into execution or not. This
consideration was made the chief point in the debate, in which Albert
Gallatin took a leading part in favor of the resolution, well supported
by Madison, Livingston, Giles, and Baldwin, and others of less note. It
was opposed by Smith, of South Carolina, Murray, Harper, Hillhouse, and
others. About thirty speeches on either side were made, and the debate
did not terminate until the twenty-fourth of the month.
During this debate, the eloquent Fisher Ames was a member of the house,
but was compelled by ill health to be silent. It was a great trial for
the patriot, for he saw the need of soldiers for the contest. He had
been, from the beginning, a warm friend of the government; and now, at
what he deemed a crisis, he wished to lift up his voice in defence of
its measures. To a friend in Springfield he wrote on the ninth of March,
saying:--
"I sit now in the house; and, that I may not lose my temper and my
spirits, I shut my ears against the sophisms and rant against the
treaty, and divert my attention by writing to you.
"Never was there a time when I so much desired the full use of my
faculties, and it is the very moment when I am prohibited even
attention. To be silent, neutral, useless, is a situation not to be
envied. I almost wish ***** was here, and I at home, sorting squash
and pumpkin seeds for planting.
"It is a new post for me to be in. I am not a sentry, not in the
ranks, not in the staff. I am thrown into the wagon as part of the
baggage. I am like an old gun that is spiked or the trunnions
knocked off, and yet am carted off, not for the worth of the old
iron, but to balk the enemy of a trophy. My political life is
ended, and I am the survivor of myself, or rather the troubled
ghost of a politician, that am condemned to haunt the field of
battle where I fell. Whether the government will long outlive me is
doubtful. I know it is sick, and, many of the physicians say, of a
mortal disease. A crisis now exists, the most serious I ever
witnessed, and the more dangerous because it is not dreaded. Yet, I
confess, if we should navigate the federal ship through this
strait, and get out again into the open sea, we shall have a right
to consider the chance of our government as mended. We shall have a
lease for years--say four or five; not a freehold--certainly not a
fee simple.
"How will the Yankees feel and act when the day of trial comes? It
is not, I fear, many weeks off. Will they let the casuists quibble
away the very words, and adulterate the generous spirit of the
constitution? When a measure passes by the proper authorities,
shall it be stopped by force? Sophistry may change the form of the
question, may hide some of the consequences, and may dupe some into
an opinion of its moderation when triumphant; yet the fact will
speak for itself. The government can not go to the halves. It would
be another, a worse government, if the mob, or the leaders of the
mob in Congress,[92] can stop the lawful acts of the president, and
unmake a treaty. It would be, either no government, or instantly a
government of usurpation and wrong.... I think we shall beat our
opponents in the end, but the conflict will light up a fierce war."
Ames grew stronger; and at length, in the final debate in Congress upon
the subject of the treaty, his eloquence was heard, like the tones of a
trumpet, and with great effect, as we shall presently observe.
Livingston's motion was carried, on the twenty-fourth of March, by the
decisive vote of sixty-two to thirty-seven. A committee of the house,
deputed for the purpose, carried the vote to the president, who replied
that he would take the request into consideration. He immediately
summoned a cabinet council, and laid the matter before them in the form
of two queries; first, on the right of the house, under the
circumstances, to make such a call; and secondly, whether it would be
expedient to furnish the papers, even though the belief might be
entertained that the house had no right to call for them. He also
referred the matter to Colonel Hamilton for his opinion.
The cabinet members were unanimous in opinion, that he ought not to
comply with the requisitions of the house. Each of them stated, in
writing, the grounds of his opinion; and Chief-Justice Ellsworth, who
had lately been appointed to the bench of the supreme court of the
United States, had, while the debate was in progress, drawn up an
opinion coincident with the views of Washington and his cabinet.
Hamilton also transmitted to the president a long and able paper, in
which, with his usual force of unanswerable logic, he sustained the
action of the cabinet, and fortified the president's views. In
acknowledging the receipt of this paper on the thirty-first of March,
the president said:--
"I had from the first moment, and from the fullest conviction in my
own mind, resolved to _resist the principle_, which was evidently
intended to be established by the call of the house of
representatives; and only deliberated on the manner in which this
could be done with the least bad consequences. To effect this,
three modes presented themselves. First, a denial of the papers _in
toto_, assigning concise but cogent reasons for that denial;
secondly, to grant them in whole; or, thirdly, in part; accompanied
in both the last-mentioned cases with a pointed protest against the
right of the house to control treaties, or to call for papers
without specifying their object, and against the compliance being
drawn into a precedent.
"I had as little hesitation in deciding that the first was the most
tenable ground; but, from the peculiar circumstances of the case,
it merited consideration, if the _principle_ could be saved,
whether facility in the provision might not result from a
compliance. An attentive examination of the subject and papers,
however, soon convinced me that to furnish _all_ the papers would
be highly improper, and that a partial delivery of them would leave
the door open for as much calumny as a refusal of them altogether;
perhaps more, as it might, and I have no doubt would, be said that
all such as were essential to the purposes of the house were
withheld.
"Under these impressions, I proceeded, with the heads of
departments and the attorney-general, to collect materials, and to
prepare an answer, subject, however, to revision and change
according to circumstances. This was ready on Monday, and proposed
to be sent in on Tuesday; but it was delayed until I should hear
from you, which happened on that day about noon. This induced a
further postponement until yesterday, notwithstanding the apparent
and anxious solicitude, which was visible in all quarters, to learn
the result of the application.
"Finding that the draft which I had prepared embraced the most if
not all the principles, which were detailed in yours of yesterday,
though not the reasonings; that it would take considerable time to
copy yours; and, above all, having understood that if the papers
were refused, a fresh demand with strictures on my conduct was to
be expected, I sent in the answer, which was ready, and have
reserved yours, as a copious resource, in case the matter should go
any further."[93]
Washington gave a decided negative to the request of the house. It
appears to have been unexpected. The opposition were not prepared for
such boldness and firmness on the part of the executive, and it
"appeared to break," says Marshall, "the last cord of that attachment
which had theretofore bound some of the active leaders of the opposition
to the person of the president." Amid all the excitements of party
contests, there was real affection and respect for Washington on the
part of those who were politically opposed to him; but this act, so much
like defiance of the popular will as expressed by the house of
representatives, in the eyes of the unreflecting, seemed, for the
moment, to extinguish every lingering spark of affection in the bosom of
his old friends, now his political enemies.
After a week's delay, the president's message was taken up in committee
of the whole, with two resolutions offered by Blount, of North Carolina,
declaratory of the sense of the house respecting its own power on the
subject of treaties. These embodied doctrines contrary to those
expressed in the message. The first, after disclaiming any pretensions
on the part of the house to "any agency in making treaties," asserted,
that "when a treaty stipulated regulations on any of the subjects
submitted by the constitution to the power of Congress, it must depend
for its execution, as to such stipulations, on a law to be passed by
Congress," and that the house had a right to deliberate on the
expediency or inexpediency of such law, and pass or reject it as they
might determine. The second resolution asserted, that in applications to
the president for information, the house was not bound to specify for
what purpose such information was wanted.
These resolutions took a rather less untenable position than had been
maintained in argument, and were quite inexplicit on an essential part
of the question. After a brief debate, in which Madison was chief
speaker in favor of the resolutions, they were adopted by a vote of
fifty-seven to thirty-five.
While this exciting subject was before Congress, the treaties with the
Indians, with the dey of Algiers, and with Spain respecting the
navigation of the Mississippi, had been ratified by the president and
senate, and communicated to the house of representatives. It was moved
to refer them to the committee of the whole house; but, for several days
in succession, the motion was voted down. It was finally carried; and on
the thirteenth of April, the moment the committee of the whole was
organized by the chairman taking his seat, Mr. Sedgwick, of
Massachusetts, arose and moved "that provision ought to be made by law
for carrying into effect, with good faith, the treaties lately concluded
with the dey and regency of Algiers, the king of Great Britain, the king
of Spain, and certain Indian tribes northwest of the Ohio." The
opposition were completely surprised by this unexpected movement, and an
angry altercation ensued. They complained loudly of the manner in which
an attempt was made to force action upon the four treaties together, and
resented what they deemed the ungenerous sharp practice of their
opponents, because it was in contravention of the solemn vote of the
house lately recorded upon their journals, declaratory of their right to
exercise a free discretion over the subject. It was contended, on the
other hand, that, as the four treaties formed part of one system, if one
was rejected, it might be expedient to reject the others also. After a
warm debate, it was agreed to dispose of the other treaties before
taking up that with Great Britain. In accordance with this
determination, the action of the house on the other treaties was such as
not to contradict the claim set up by Blount's resolutions, and they
were disposed of without any difficulty.
The treaty with Great Britain was taken up on the fifteenth of April.
Its friends, in and out of Congress, supposing that on a subject which
had so long agitated the community, the mind of every member was
settled, and that an attempt to make converts by either party through
debates would be futile, urged an immediate decision of the matter. They
felt confident that the majority would not dare to meet the country on
such an issue as the withholding of means for the execution of the
treaty; but that majority, though knowing they had the power to break
the treaty, were unwilling to do so without first embracing an
opportunity for giving satisfactory reasons for their action. They
therefore called for discussion. "The expectation," says Marshall,
"might not unreasonably be entertained, that the passions belonging to
the subject would be so inflamed by debate as to produce the expression
of a public sentiment favorable to their wishes; and if in this they
should be disappointed, it would be certainly unwise, either as a party
or as a branch of the legislature, to plunge the nation into
embarrassments in which it was not disposed to entangle itself, and from
which the manner of extricating it could not be distinctly perceived."
The friends of the treaty did not shrink from discussion; and the
debate, which lasted a fortnight, was opened by Madison with a speech,
elaborate in its details and carefully prepared. He maintained that
there was the grossest want of reciprocity exhibited in that part of the
treaty that related to the settlement of disputes growing out of the
compact of 1783. The British, he asserted, got all they asked--the debts
due their merchants with damages in the shape of interest. We got
nothing, he said, for the valuable negroes carried away, and we received
nothing for damages accruing from the long detention of the western
posts. And they, he said, were received with conditions respecting the
Indian trade which made them almost useless to us, as to influence over
the savage tribes, in which alone their greatest value consisted; and he
considered the agreement to pay the American claims for spoliations as
no offset for the loss of the negroes.
The same want of reciprocity, he said, prevailed in the portion of the
treaty respecting neutral rights and the law of nations. By it we
yielded the favorite principle, long ago enunciated, that "free ships
make free goods," and had actually added naval stores and even
provisions to the list of contraband articles. He severely animadverted
upon the provisions which conceded to British subjects the right to hold
lands within the territory of the United States; the stipulation
concerning the navigation of the Mississippi; and the permission to open
all American ports to British shipping, while our own vessels were
excluded from the colonial harbors.
The latter measure, allowing Great Britain to retain her colonial
monopoly and preserve intact her colonial system, he denounced as "a
phenomenon which had filled him with more surprise than he knew how to
express." And more vehement than all, because it interfered with his
favorite scheme of commercial coercion, was Madison's denunciations of
the provisions which prevented the Americans from retaliating upon the
British, in the event of their making commercial restrictions to our
disadvantage by further discriminations. He concluded with scouting the
idea that war would ensue if the treaty should be rejected, because the
hostilities England were then waging with France were quite as much as
she was able to manage at that time.
Madison's speech alarmed the country, especially the sensitive
mercantile classes, for whose losses, by spoliations, the treaty made
provision, and those who were dependant upon trade, because they feared
its influence in causing the inexecution of the treaty, and consequent
war with Great Britain, by which their interests would be seriously
effected. Other classes were also alarmed; indeed, all who loved peace
and deprecated quarrels, much less physical contests, with other
nations, trembled for the fate of the treaty. The country was violently
agitated. Public meetings were held in all parts of the United States,
and the strength of parties was once more fully tried. Petitions were
sent in to Congress from all the great marts of business in the country
in favor of ratification; while counter meetings were held and counter
petitions were sent in from various places. Insurance against captures
on the high seas could no longer be obtained for vessels or goods; and a
sudden blow was given to commerce, which threatened financial ruin.
To add to the confusion, Bond, the British _chargé des affaires_, had
intimated, that if the house of representatives, refused the necessary
appropriation to carry the treaty into effect, the western posts would
not be given up at the stipulated time, now near at hand. He also took
that occasion to insist upon an explanatory article concerning a clause
in Wayne's treaty with the Indians, by which they had agreed to allow no
trader to reside among them, unless licensed by the authorities of the
United States; for it seemed to be in contradiction with the provisions
of the treaty under consideration, a mutual free-trade with the Indian
tribes being guarantied thereby. This menace and this demand created
much irritation; yet it did not in the least affect the tide of popular
sentiment in favor of the treaty which was continually rising. This fact
was clearly discerned by both parties, and the friends of the treaty
protracted the debate, in order that, before the vote should be taken,
public opinion might be so expressed, as to have an omnipotent effect in
its favor.
At this moment, when the debate had been going on for several days and
the spirit of the opposition began to flag, Albert Gallatin came to the
support of his party, in a speech which at once gave him the position of
republican leader in the house, the honor of which had been divided
between Madison and Giles, of Virginia. Gallatin was a native of Geneva,
in Switzerland, and then only thirty years of age. He had been only
eleven years in the country, two of which he had served the people of
his adoption in a military capacity. After the Revolution he established
himself on the Monongahela, in western Pennsylvania, where his talents
soon caused him to be called into public life. He was engaged, as we
have seen, in the Whiskey Insurrection, but with patriotic intentions,
as he alleged; and by a large popular vote he was elected to a seat in
the house of representatives. Although a foreign accent was plainly
visible when he spoke, he was so fluent in language, so earnest in
manner, and so logical in argument, that his youth and foreign birth
were forgotten for the moment, and he was listened to with the greatest
pleasure.
Gallatin had heard the speeches on both sides with marked attention, and
was prepared to take new ground in his own. Quoting from Vattel on the
law of nations, he went on to show that slaves, being real estate, were
not a subject of booty, but, on the restoration of peace, fell back to
their former owners, like the soil to which they were attached. He
attempted to excite, evidently for party purposes, sectional hatred by
declaring that while the rights of the South and West had been
sacrificed by the treaty, in respect to negroes, the Indian trade, and
the navigation of the Mississippi, means had been found to protect the
commercial interests of the North. With the same breath, however, he
denounced the commercial articles of the treaty as utterly worthless,
and adroitly charged the senate, by insinuation, with ignorance
respecting the East Indian trade, falsely assuming that because the
treaty did not, by express provisions, secure the East Indian coasting
trade, and the direct voyage from India to Europe by American vessels,
that these privileges had been relinquished.
Like Madison, he regarded the provision respecting neutrals as yielding
everything to the semi-piratical policy of Great Britain. He contended
strenuously for the dishonest measure of sequestration of private debts
due to British subjects, as a means of coercion, and condemned that most
just provision of the treaty, bearing upon that subject, without stint.
While we have promised full indemnity to England, he said, for every
possible claim against us, we had abandoned every claim of a doubtful
nature, and agreed to receive the western posts under the most degrading
restrictions concerning the trade with the Indians. We had gained
nothing, he said, by the arrangements respecting trade and navigation,
while we had parted with "every pledge in our hands, every power of
restriction, every weapon of self-defence."
He admitted that if this treaty should be rejected, another as favorable
might not be obtained; but he argued, that while the United States would
lose the western posts and the indemnity for spoliations, they would be
pecuniary gainers by escaping the payment of the British debts. He did
not wish, nor did his party, an utter rejection of the treaty, but a
suspension or postponement of it, until the British should cease their
encroachments, and reparations for such wrongs might be obtained. He
scouted as utterly chimerical, the idea that war would necessarily
follow such postponement, or even a positive rejection; and he treated
the menaces of the dissolution of the Union with scorn. He significantly
asked, Who will dissolve the government? The opposition majority had no
motive for doing it, and he did not believe that the federalists would,
at the first failure of their power, revenge themselves by overthrowing
the government. He expressed his belief that the people, from one end of
the Union to the other, were strongly attached to the constitution, and
that they would punish any party or set of men who should attempt to
subvert it. He rested in full security on the people, against any
endeavor to destroy the Union or the government. He regarded the cry of
disunion and of war as designed only to work upon the fears of Congress,
and force an acquiescence in the treaty. "It was the fear of being
involved in a war," he said, "that the negotiations with Great Britain
had originated; under the impression of fear the treaty had been
negotiated and signed; fear had promoted its ratification; and now,
every imaginary mischief was conjured up to frighten the house, to
deprive it of that discretion which it had the right to exercise, to
force it to carry this treaty into effect." He also charged the
merchants of Philadelphia and other seaports[94] with having formed a
combination to produce alarm, and to make their efforts more effectual,
had also combined to cease insuring vessels, purchasing produce, or
transacting any business, to induce the people to join in the attempt to
force the house to pass laws for carrying the treaty into effect.
"To listen calmly to this denunciation of Washington and Jay," says
Hildreth, "as having pusillanimously surrendered the honor of their
country--Washington in setting on foot and in ratifying, and Jay in
having negotiated, the treaty--coming as it did from the mouth of one
whose evident youth and foreign accent might alone serve to betray him
as an adventurer, whose arrival in the country could hardly have been
long anterior to the termination of the Revolutionary struggle, was
somewhat too much for human nature to bear. There was also something a
little provoking in the denunciation of the merchants as having
conspired to terrify the house, coming from a man who had first obtained
general notoriety, it was now hardly four years since, by the
publication of his name at the bottom of a series of resolutions, of
which the avowed object was to frighten public officers from the
discharge of their duty by threats of a social interdict and
non-intercourse--a method of proceeding which had ended in violent
resistance to the laws and armed insurrection. Nor is it very
surprising, all things considered, that many of the federalists were
inclined to look on Gallatin as a foreign emissary, a tool of France,
and employed and paid to make mischief."[95]
Tracy, of Connecticut, replied to the most prominent points of
Gallatin's speech. He denied that Vattel gave any such opinion as to
slaves, as set forth by Gallatin; and called attention to the fact that
the British did not refuse to restore them as booty, but because they
were men set free by having joined the British standard, that freedom
being the chief inducement held out to them. Other points he commented
upon with equal force. He warmed with his theme, and at length became
severely personal. The opposition, he said, ask, with an air of
triumphant complacency, How is there to be war, if we are not disposed
to fight, and Great Britain has no motive for hostilities? "But look at
the probable state of things," he continued: "Great Britain is to
retain the western posts, and with them, the confidence of the Indians;
she makes no compensation for the millions spoliated from our commerce,
but adds new millions to our already heavy losses. Would Americans
quietly see their government strut, look big, call hard names, repudiate
treaties, and then tamely put up with new and aggravated injuries?
Whatever might be the case in other parts of the Union, his constituents
were not of a temper to dance round a whiskey-pole one day, cursing the
government, and to sneak, the next day, into a swamp, on hearing that a
military force was marching against them. They knew their rights, and,
if the government were unable, or unwilling, to give them protection,
they would find other means to secure it. He could not feel thankful to
any gentleman for coming all the way from Geneva to accuse Americans of
pusillanimity."
This allusion to Gallatin elicited cries of order from many of the
opposition, and for awhile the excitement in the house was intense. The
chairman decided that Mr. Tracy was in order, and desired him to go on.
He disclaimed any intention to be personal, asked pardon for any
improprieties of which he might have been guilty in the heat of debate,
and excused himself with the plea, that such charges against the
American government and people, from such a source, were naturally very
offensive.
Fourteen days had now been occupied with this debate, when Fisher Ames,
of Massachusetts, whose feebleness of health had kept him away from the
house a part of the session, and made him a quiet spectator until now,
arose in his place, and addressed the assemblage on the great subject.
It was known that he was to speak on that day (twenty-eighth of April),
and the house was crowded with an audience eager to hear the orator. He
was pale, tottering, hardly able to stand on his feet, when he first
arose, but as he became warmed with the subject, his whole being seemed
to gather strength every moment, and he delivered a speech which was
never forgotten by those who heard it. It was the great speech of the
session, exhibiting a wonderful comprehension of human nature and the
springs of political action; logic the most profound; the most biting
ridicule, and pathetic eloquence. His speech exhibits such a summary, in
its allusions, to the scope of the arguments of the opposition, and
throws such light upon the growth and state of parties, that we make
long extracts from it.
"The suggestion a few days ago," he said, "that the house manifested
symptoms of heat and irritation, was made and retorted as if the charge
ought to create surprise, and would convey reproach. Let us be more just
to ourselves and the occasion. Let us not effect to deny the existence
and the intrusion of some portion of prejudice and feeling into the
debate, when, from the very structure of our own nature, we ought to
anticipate the circumstance as a probability; and when we are admonished
by the evidence of our senses that it is a fact, how can we make
professions for ourselves, and offer exhortations to the house, that no
influence should be felt but that of duty, and no guide respected but
that of the understanding, while the peal to rally every passion of man
is continually ringing in our ears? Our understandings have been
addressed, it is true, and with ability and effect; but, I demand, has
any corner of the heart been unexplored? It has been ransacked to find
auxiliary arguments; and, when that attempt failed, to awaken the
sensibility that would require none. Every prejudice and feeling has
been summoned to listen to some peculiar style of address; and yet we
seem to believe and to consider a doubt as an affront, that we are
strangers to any influence but that of unbiassed reason.... It is very
unfairly pretended, that the constitutional right of this house is at
stake, and to be asserted and preserved only by a vote in the negative.
We hear it said, that this is a struggle for liberty, a manly resistance
against the design to nullify the existence of this assembly, and to
make it a cypher in the government; that the president and senate, the
numerous meetings in the cities, and the influence of the general alarm
of the country, are the agents and instruments of a scheme of coercion
and terror, and in spite of the clearest convictions of duty and
conscience.
"It is necessary to pause here, and inquire whether suggestions of this
kind be not unfair in their very texture and fabric, and pernicious in
all their influences. They oppose an obstacle in the path of inquiry,
not simply discouraging, but absolutely insurmountable. They will not
yield to argument; for, as they were not reasoned up, they can not be
reasoned down. They are higher than a Chinese wall in truth's way, and
built of materials that are indestructible. While this remains, it is
vain to say to this mountain, be thou cast into the sea. For I ask of
the men of knowledge of the world, whether they would not hold him for a
blockhead, that should hope to prevail in an argument, whose scope and
object is to mortify the self-love of the expected proselyte? I ask
further, when such attempts have been made, whether they have not failed
of success? The indignant heart repels the conviction that is believed
to debase it.... Let me expostulate with gentlemen to admit, if it be
only by way of supposition, and for a moment, that it is barely possible
they have yielded too suddenly to their own alarms for the powers of
this house; that the addresses which have been made with such variety of
forms, and with so great dexterity in some of them, to all that is
prejudice and passion in the heart, are either the effects or the
instruments of artifice and deception, and then let them see the subject
once more in its singleness and simplicity....
"The doctrine has been avowed, that the treaty, though formally
ratified by the executive power of both nations, though published
as a law for our own by the president's proclamation, is still a
mere proposition submitted to this assembly, no way
distinguishable, in point of authority or obligation, from a motion
for leave to bring in a bill, or any other original act of ordinary
legislation. This doctrine, so novel in our country, yet so dear to
many precisely for the reason, that in the contention for power,
victory is always dear, is obviously repugnant to the very terms,
as well as the fair interpretation of our own resolution (Mr.
Blount's). We declare, that the treaty-making power is exclusively
vested in the president and senate, and not in the house. Need I
say that we fly in the face of that resolution, when we pretend
that the acts of that power are not valid until we have concurred
in them. It would be nonsense, or worse, to use the language of the
most glaring contradiction, and to claim a share in a power which
we at the same time disclaim, as exclusively vested in other
departments. What can be more strange than to say, that the
compacts of the president and senate with foreign nations are
treaties without our agency, and yet, that those compacts want all
power and obligation until they are sanctioned by our concurrence.
It is not my design, in this place, if at all, to go into a
discussion of this part of the subject. I will, at least for the
present, take it for granted that this monstrous opinion stands in
little need of remark, and, if it does, lies almost out of the
reach of refutation."
After discussing the subject of bad faith on the part of the United
States, in refusing to execute the treaty, with a clear and
comprehensive view of the obligations of nations, Mr. Ames continued:--
"I shall be asked, why a treaty so good in some articles, and so
harmless in others, has met with such unrelenting opposition? and
how the clamors against it, from New Hampshire to Georgia, can be
accounted for? The apprehensions so extensively diffused on its
first publication, will be vouched as proof that the treaty is bad,
and that the people held it in abhorrence.
"I am not embarrassed to find an answer to this insinuation.
Certainly a foresight of its pernicious operation could not have
created all the fears that were felt or effected: the alarm spread
faster than the publication of the treaty; there were more critics
than readers. Besides, as the subject was examined, those fears
have subsided. The movements of passion are quicker than those of
the understanding: we are to search for the causes of first
impressions, not in the articles of this obnoxious and
misrepresented instrument, but in the state of the public feeling.
"The fervor of the Revolutionary war had not entirely cooled, nor
its controversies ceased, before the sensibility of our citizens
was quickened with a tenfold vivacity, by a new and extraordinary
subject of irritation. One of the two great nations of Europe
underwent a change which has attracted all our wonder, and
interested all our sympathy. Whatever they did, the zeal of many
went with them, and often went to excess. These impression met with
much to inflame, and nothing to restrain them. In our newspapers,
in our feasts, and some of our elections, enthusiasm was admitted a
merit, a test of patriotism; and that made it contagious. In the
opinion of party, we could not love or hate enough. I dare say, in
spite of all the obloquy it may provoke, we were extravagant in
both. It is my right to avow, that passions so impetuous,
enthusiasm so wild, could not subsist without disturbing the sober
exercise of reason, without putting at risk the peace and precious
interests of our country. They were hazarded. It will not exhaust
the little breath I have left, to say how much, nor by whom, or by
what means they were rescued from the sacrifice. Shall I be called
upon to offer my proofs? They are here. They are everywhere. No one
has forgotten the proceedings of 1794. No one has forgotten the
capture of our vessels, and the imminent danger of war. The nation
thirsted, not only for reparation, but vengeance. Suffering such
wrongs, and agitated by such resentments, was it in the power of
any words of compact, or could any parchment, with its seals,
prevail at once to tranquillize the people? It was impossible.
Treaties in England are seldom popular, and least of all, when the
stipulations of amity succeed to the bitterness of hatred. Even the
best treaty, though nothing be refused, will choke resentment, but
not satisfy it. Every treaty is as sure to disappoint extravagant
expectations, as to disarm extravagant passions; of the latter,
hatred is one that takes no bribes; they who are animated by a
spirit of revenge, will not be quieted by the possibility of
profit.
"Why do they complain that the West Indies are not laid open? Why
do they lament that any restriction is stipulated on the commerce
of the East Indies? Why do they pretend, that if they reject this,
and insist upon more, more will be accomplished? Let us be
explicit--more would not satisfy. If all was granted, would not a
treaty of amity with Great Britain still be obnoxious? Have we not
this instant heard it urged against our envoy, that he was not
ardent enough in his hatred of Great Britain? A treaty of amity is
condemned because it was not made by a foe, and in the spirit of
one. The same gentleman, at the same instant, repeats a very
prevailing objection, that no treaty should be made with the enemy
of France. 'No treaty,' exclaim others, 'should be made with a
monarch or a despot; there will be no naval security while those
sea-robbers prevail on the ocean; their den must be destroyed; that
nation must be extirpated.'
"I like this, sir, because it is sincerity. With feelings such as
these we do not pant for treaties. Such passions seek nothing, and
will be content with nothing, but the destruction of their object.
If a treaty left King George his island it would not answer, not if
he stipulated to pay rent for it. It has been said, the world ought
to rejoice if Great Britain was sunk in the sea; if, where there
are now men, and wealth, and laws, and liberty, there were no more
than a sandbank, for the sea-monsters to fatten on--a space for the
storms of the ocean to mingle in conflict.
"I object nothing to the good sense or humanity of all this. I
yield the point that this is a proof that the age of reason is in
progress. Let it be philanthropy, let it be patriotism, if you
will; but it is no indication that any treaty would be approved.
The difficulty is not to overcome the objections to the terms; it
is to restrain the repugnance to any stipulations of amity with the
party.
"Having alluded to the rival of Great Britain, I am not unwilling
to explain myself. I effect no concealment, and I have practised
none. While those two great nations agitate all Europe with their
quarrels, they will both equally endeavor to create an influence in
America; each will exert all its arts to range its strength on its
own side. How is this to be effected? Our government is a
democratical republic; it will not be disposed to pursue a system
of politics, in submission to either France or England, in
opposition to the general wishes of the citizens; and if Congress
should adopt such measures, they would not be pursued long, nor
with much success. From the nature of our government, popularity is
the instrument of foreign influence. Without it, all is labor and
disappointment. With that auxiliary, foreign intrigue finds agents,
not only volunteers, but competitors for employment, and anything
like reluctance is understood to be a crime. Has Britain this means
of influence? Certainly not. If her gold could buy adherents, their
becoming such would deprive them of all political power and
importance. They would not wield popularity as a weapon, but would
fall under it. Britain has no influence, and, for reasons just
given, can have none. She has enough; and God forbid she ever
should have more. France, possessed of popular enthusiasm, of party
attachments, has had, and still has, too much influence on our
politics. Any foreign influence is too much, and ought to be
destroyed. I detest the man, and disdain the spirit, that can bend
to a mean subserviency to the views of any nation. It is enough to
be American; that character comprehends our duties, and ought to
engross our attachments.
"But I would not be misunderstood. I would not break the alliance
with France. I would not have the connection between the two
countries even a cold one. It should be cordial and sincere; but I
would banish that influence, which, by acting on the passions of
the citizens, may acquire a power over the government."
The speaker then drew a picture of the national disgrace, in the eyes of
the world, that would be caused by a breach of national faith; and he
appealed with inexpressible power to the hearts and understandings of
the members, on this all-important consideration. He probed, with keen
and searching precision, the Jesuitical position assumed by the house,
in disclaiming any participation in the treaty-making power, and yet
claiming the right to decide upon the merits of a treaty, and to defeat
its execution. He then dwelt upon the evils that would accrue, in the
form of a loss to the mercantile community, of five millions of dollars
promised in payment for spoliations; and the renewal of Indian wars on
the frontier, if the western posts should not be given up.
"On this theme," he said, "my emotions are unutterable. If I could find
words for them, if my powers bore any proportion to my zeal, I would
swell my voice to such a note of remonstrance, it should reach every
log-house beyond the mountains. I would say to the inhabitants, wake
from your false security--your cruel dangers; your more cruel
apprehensions are soon to be torn open again. In the daytime your path
through the woods will be ambushed; the darkness of midnight will
glitter with the blaze of your dwellings. You are a father--the blood of
your sons shall fatten your cornfields. You are a mother--the war-whoop
shall waken the sleep of the cradle.
"On this subject you need not expect any deception on your feelings. It
is a spectacle of horror which can not be overdrawn. If you have nature
in your hearts, they will speak a language, compared with which, all I
have said, or can say, will be poor and frigid.... By rejecting the
posts, we light the savage fires--we bind the victims. This day we
undertake to render account to the widows and orphans our decision will
make--to the wretches that will be roasted at the stake--to our
country--and I do not deem it too serious to say, to conscience and to
God. We are answerable; and if duty be anything more than a word of
imposture, if conscience be not a bugbear, we are preparing to make
ourselves as wretched as our country....
"The idea of war has been treated as a bugbear. This levity is, at
least, unseasonable, and, most of all, unbecoming some who resort to it.
Who has forgotten the philippics of 1794? The cry then was,
reparation--no envoy--no treaty--no tedious delays. Now, it seems, the
passion subsides, or, at least, the hurry to satisfy it. Great Britain,
they say, will not wage war upon us.
"In 1794, it was urged by those who now say, no war, that if we built
frigates, or resisted the piracies of Algiers, we could not expect
peace. Now they give excellent comfort truly. Great Britain has seized
our vessels and cargoes to the amount of millions; she holds the posts;
she interrupts our trade, say they, as a neutral nation; and these
gentlemen, formerly so fierce for redress, assure us, in terms of the
sweetest consolation, Great Britain will bear all this patiently. But
let me ask the late champions of our rights, will our nation bear it?
Let others exult because the aggressor will let our wrongs sleep for
ever. Will it add, it is my duty to ask, to the patience and quiet of
our citizens, to see their rights abandoned? Will not the disappointment
of their hopes, so long patronized by the government, now in the crisis
of their being realized, convert all their passions into fury and
despair?...
"Look again at this state of things. On the seacoast, vast losses
uncompensated; on the frontier, Indian war and actual encroachment on
our territory; everywhere discontent; resentments tenfold more fierce
because they will be more impotent and humbled; national discord and
abasement. The disputes of the old treaty of 1783, being left to rankle,
will revive the almost extinguished animosities of that period. Wars in
all countries, and most of all in such as are free, arise from the
impetuosity of the public feelings. The despotism of Turkey is often
obliged by clamor to unsheathe the sword. War might, perhaps, be delayed,
but could not be prevented. The causes of it would remain, would be
aggravated, would be multiplied, and soon become intolerable. More
captures, more impressments would swell the list of our wrongs, and the
current of our rage. I make no calculation of the arts of those whose
employment it has been, on former occasions, to fan the fire; I say
nothing of the foreign money and emissaries that might foment the spirit
of hostility, because this state of things will naturally run to
violence. With less than their former exertion they would be successful.
"Will our government be able to temper and restrain the turbulence of
such a crisis? The government, alas! will be in no capacity to govern. A
divided people, and divided councils! Shall we cherish the spirit of
peace, or show the energies of war? Shall we make our adversary afraid
of our strength, or dispose him, by the measures of resentment and
broken faith, to respect our rights? Do gentlemen rely on the state of
peace because both nations will be more disposed to keep it? because
injuries and insults still harder to endure, will be mutually
offered?...
"Is there anything in the prospect of the interior state of the
country, to encourage us to aggravate the dangers of a war? Would not
the shock of that evil produce another, and shake down the feeble and
then unbraced structure of our government? Is this a chimera? Is it
going off the ground of matter of fact to say, the rejection of the
appropriation proceeds upon the doctrine of a civil war of the
departments? Two branches have ratified a treaty, and we are going to
set it aside. How is this disorder in the machine to be rectified? While
it exists its movements must stop; and when we talk of a remedy, is that
any other than the formidable one of a revolutionary interposition of
the people? And is this, in the judgment even of my opposers, to
execute, to preserve the constitution, and the public order? Is this the
state of hazard, if not of convulsion, which they can have the courage
to contemplate and to praise; or beyond which their penetration can
reach and see the issue? They seem to believe, and they act as if they
believed, that our union, our peace, our liberty, are invulnerable and
immortal; as if our happy state was not to be disturbed by our
dissentions, and that we are not capable of falling from it by our
unworthiness. Some of them have, no doubt, better nerves and better
discernment than mine. They can see the bright aspects and happy
consequences of all this array of horrors. They can see intestine
discords, our government disorganized, our wrongs aggravated,
multiplied, and un-redressed, peace with dishonor, or war without
justice, union, or resources, in 'the calm lights of mild
philosophy....'
"Let me cheer the mind, weary, no doubt, and ready to despond on this
prospect, by presenting another which it is in our power to realize. Is
it possible for a real American to look at the prosperity of this
country without some desire for its continuance, without some respect
for the measures which, many will say, produced, and all will confess,
have preserved it? Will he not feel some dread that a change of system
will reverse the scene? The well-grounded fears of our citizens, in
1794, were removed by the treaty, but are not forgotten. Then they
deemed war nearly inevitable, and would not this adjustment have been
considered, at that day, as a happy escape from the calamity? The great
interest and the general desire of our people was to enjoy the
advantages of neutrality. This instrument, however misrepresented,
affords Americans that inestimable security. The cause of our disputes
are either cut up by the roots, or referred to a new negotiation after
the end of the European war. This was gaining everything. This, alone,
would justify the engagements of the government. For, when the fiery
vapors of war lowered in the skirts of our horizon, all our wishes were
concentrated in this one, that we might escape the desolation of the
storm. This treaty, like a rainbow on the edge of the cloud, marked to
our eyes the space where it was raging, and afforded, at the same time,
the sure prognostic of fair weather. If we reject it the vivid colors
will grow pale; it will be a baleful meteor, portending tempest and war.
"Let us not hesitate, then, to agree to this appropriation to carry it
into faithful execution. Thus we shall save the faith of our nation,
secure its peace, and diffuse the spirit of confidence and enterprise
that will augment its prosperity. The progress of wealth and improvement
is wonderful, and some will think, too rapid. The field for exertion is
fruitful and vast; and if peace and good government should be preserved,
the acquisitions of our citizens are not so pleasing as the proofs of
their industry, as the instruments of their future success. The rewards
of exertion go to augment its power. Profit is every hour becoming
capital. The vast crop of our neutrality is all seed-wheat, and is sown
again, to swell, almost beyond calculation, the future harvest of
prosperity. In this progress what seems to be fiction is found to fall
short of experience.... When I come to the moment of deciding the vote,
I start back with dread from the edge of the pit into which we are
plunging. In my view, even the minutes I have spent in expostulation,
have their value, because they protract the crisis, and the short period
in which alone we may resolve to escape it.
"I have thus been led by my feelings to speak more at length than I had
intended. Yet I have, perhaps, as little personal interest in the event
as any one here. There is, I believe, no member who will not think his
chance to be a witness of the consequences greater than mine. If,
however, the vote should pass to reject, and a spirit should rise, as it
will, with the public disorders, to make 'confusion worse confounded,'
even I, slender and almost broken as my hold upon life is, may outlive
the government and constitution of my country."
With this touching peroration Mr. Ames closed his remarkable speech, and
sat down. For a brief moment there was perfect silence in the house.
"Judge Iredell and I happened to sit together," wrote Vice-President
Adams, describing the scene. "Our feelings beat in unison. 'My God! how
great he is,' says Iredell; 'how great he has been!'--'Noble!' said I.
After some time Iredell breaks out, 'Bless my stars! I never heard
anything so great since I was born.'--'Divine!' said I; and thus we went
on with our interjections, not to say tears, to the end. Tears enough
were shed. Not a dry eye, I believe, in the house, except some of the
jackasses who had occasioned the necessity of the oratory. These
attempted to laugh, but their visages 'grinned horribly ghastly smiles.'
They smiled like Foulon's son-in-law when they made him kiss his
father's dead and bleeding hand. Perhaps the speech may not read as
well. The situation of the man excited compassion, and interested all
hearts in his favor. The ladies wished his soul had a better body."[96]
The vote was about to be taken, immediately after the conclusion of
Ames's speech, when the opposition, alarmed on account of the effect it
had probably produced, carried an adjournment. There was a little
speaking upon the subject the next day, but no one dared to attempt an
answer to Ames's words, or assail his positions. The vote stood
forty-nine to forty-nine, when General Muhlenburg, chairman of the
committee of the whole, decided the matter by casting his vote for the
resolution. It was reported to the house on the thirteenth of May, and,
after some delay, the resolution, unamended, declaring that it was
expedient to pass laws necessary for carrying the treaty into effect,
was adopted, fifty-one to forty-eight, the northern members voting for
and the southern against it.
FOOTNOTES:
[91] Life of Washington.
[92] He referred to Livingston, the author of the resolutions before the
house, who was one of the leaders of the populace in New York when
Hamilton and King were stoned, while speaking in favor of the treaty, at
a public meeting.
[93] The following is a copy of Washington's message to the house of
representatives on the thirtieth of March, 1796, assigning his reasons
for not complying with their resolution of the twenty-fourth:--
"With the utmost attention I have considered your resolution of the
twenty-fourth instant, requiring me to lay before your house a copy
of the instructions to the minister of the United States who
negotiated the treaty with the king of Great Britain, together with
a correspondence and other documents relative to that treaty,
excepting such of the said papers as any existing negotiation may
render improper to be disclosed.
"In deliberating upon this subject, it was impossible to lose sight
of the principle, which some have avowed in its discussion, or to
avoid extending my views to the consequences which must flow from
the admission of that principle.
"I trust that no part of my conduct has ever indicated a
disposition to withhold any information which the constitution has
enjoined upon the president as a duty to give, or which could be
required of him by either house of Congress as a right; and with
truth I affirm that it has been, as it will continue to be while I
have the honor to preside in the government, my constant endeavor
to harmonize with the other branches thereof, so far as the trust
delegated to me by the people of the United States, and my sense of
the obligation it imposes to 'preserve, protect, and defend the
constitution,' will permit.
"The nature of foreign negotiations requires caution, and their
success must often depend on secrecy; and, even when brought to a
conclusion, a full disclosure of all the measures, demands, or
eventual concessions, which may have been proposed or contemplated,
would be extremely impolitic; for this might have a pernicious
influence on future negotiations, or produce immediate
inconveniences, perhaps danger and mischief, in relation to other
powers. The necessity of such caution and secrecy was one cogent
reason for vesting the power of making treaties in the president,
with the advice and consent of the senate; the principle on which
that body was formed confining it to a small number of members. To
admit, then, a right in the house of representatives to demand, and
to have, as a matter of course, all the papers respecting a
negotiation with a foreign power, would be to establish a dangerous
precedent.
"It does not occur that the inspection of the papers asked for can
be relative to any purpose under the cognizance of the house of
representatives, except that of an impeachment, which the
resolution has not expressed. I repeat, that I have no disposition
to withhold any information which the duty of my situation will
permit, or the public good shall require, to be disclosed; and, in
fact, all the papers affecting the negotiation with Great Britain
were laid before the senate when the treaty itself was communicated
for their consideration and advice.
"The course which the debate has taken on the resolution of the
house, leads to some observations on the mode of making treaties
under the constitution of the United States.
"Having been a member of the general convention, and knowing the
principles on which the constitution was formed, I have ever
entertained but one opinion on this subject; and, from the first
establishment of the government to this moment, my conduct has
exemplified that opinion--that the power of making treaties is
exclusively vested in the president, by and with the advice and
consent of the senate, provided two thirds of the senators present
concur; and that every treaty, so made and promulgated,
thenceforward became the law of the land. It is thus that the
treaty-making power has been understood by foreign nations; and, in
all the treaties made with them, we have declared, and they have
believed, that when ratified by the president, with the advice and
consent of the senate, they became obligatory. In this construction
of the constitution, every house of representatives has heretofore
acquiesced; and, until the present time, not a doubt or suspicion
has appeared, to my knowledge, that this construction was not the
true one. Nay, they have more than acquiesced; for, till now,
without controverting the obligations of such treaties, they have
made all the requisite provisions for carrying them into effect.
"There is also reason to believe that this construction agrees with
the opinions entertained by the state conventions, when they were
deliberating on the constitution; especially by those who objected
to it because there was not required, in _commercial treaties_, the
consent of two thirds of the whole number of the members of the
senate, instead of two thirds of the senators present; and because,
in treaties respecting territorial and certain other rights and
claims, the concurrence of three fourths of the whole number of
both houses respectively was not made necessary.
"It is a fact decided by the general convention, and universally
understood, that the constitution of the United States was the
result of a spirit of amity and mutual concession.
"And it is well known that, under this influence, the smaller
states were admitted to an equal representation in the senate with
the larger states, and that this branch of the government was
invested with great powers; for on the equal participation of those
powers the sovereignty and political safety of the smaller states
were deemed essentially to depend.
"If other proofs than these, and the plain letter of the
constitution itself, be necessary to ascertain the point under
consideration, they may be found in the journals of the general
convention, which I have deposited in the office of the department
of state. In those journals it will appear that a proposition was
made, 'that no treaty should be binding on the United States which
was not ratified by a law,' and that the proposition was explicitly
rejected.
"As, therefore, it is perfectly clear to my understanding that the
assent of the house of representatives is not necessary to the
validity of a treaty; as the treaty with Great Britain exhibits, in
itself, all the objects requiring legislative provision, and on
these the papers called for can throw no light; and as it is
essential to the due administration of the government that the
boundaries fixed by the constitution between the different
departments should be preserved, a just regard to the constitution
and to the duty of my office, under all the circumstances of this
case, forbids a compliance with your request. GEORGE WASHINGTON."
[94] Earnest petitions from these had been sent in to Congress,
representing that the property of merchants of the United States, to the
amount of five millions of dollars, had been taken from them by the
subjects of Great Britain, for which they wanted restitution, and, for
that purpose, prayed for measures to execute the provisions of the
treaty.
[95] History of the United States, second series, i, 603.
[96] Letter to Mrs. Adams, April 30, 1796.