Execution of British Treaty

Friday, April 22.

After the presentation of several petitions on this subject, the House resolved itself into a Committee of the Whole on the state of the Union, when the resolution for carrying into effect the British Treaty being under consideration—

Mr. Coit said, that the importance of the resolution before the committee would preclude all necessity of analogy for any member's asking their attention to his observations. He should only add to it, that he should endeavor not to repeat what had been already said.

He observed, that the discussion of the merits of the Treaty came before the committee under peculiar disadvantages, for, besides the prejudices against it that might be supposed to have been caused by extraneous circumstances, the agitation of the important constitutional question relative to the right of the Legislature to concur in giving validity to this Treaty, which was claimed to be valid and complete without that concurrence, and the refusal of a call for papers had very naturally a tendency to give a bias to the minds of some gentlemen against the Treaty; for himself, he was fully satisfied the Legislature had no constitutional connection with the business of making Treaties.

Mr. C. said he should attempt to run through the objections which had been made to the Treaty, and consider its merits independently of the peculiar circumstances under which it was now presented to the committee, and then give his own view of it as relative to those peculiar circumstances.

The objects of the negotiation, he said, very naturally were divided into three parts—the inexecution of the Treaty of 1783; mutual complaints between the United States and Great Britain relative to transactions independent of the Treaty; and arrangements for the intercourse between the two nations, commercial and political. But as gentlemen had made their objections generally in the order in which the several articles of the Treaty had been arranged, he should follow the same order in his observations in answer to them.

The first objection which had been made was, that no compensation had been stipulated to the United States for the supposed breach of the Treaty of 1783, in carrying off the negroes. This objection, he had supposed, was so completely answered by his colleague, (Mr. Hillhouse,) who had been up the day before, that he should not have added on that head, but that he had since found gentlemen still insisting on that objection. He was particularly surprised to hear the gentleman from Pennsylvania (Mr. Findlay) stating that he conceived the negro article to have been put into the Treaty expressly as a compensation or set-off for the engagement to pay the British debts. This pretension, he thought, had been fully refuted by the extract from Mr. Adams's journal, quoted by Mr. Jefferson in his correspondence with Mr. Hamilton, and which had been read by his colleague. From that extract, it appeared that a claim for negroes and other property which had been plundered, carried off, and destroyed by the British, was made by our commissioners, as a set-off against a claim made by the British commissioners for restoration of confiscated estates; and that the one of those claims was abandoned with the other. Had the gentleman from Pennsylvania taken the pains to examine the journal of Mr. Adams, which might be seen by any member of the committee at the office of the Secretary of State, he would have found how the article came to be inserted.

Before the signing of the Treaties with which the extract made by Mr. Jefferson is closed, stands in the original the history of this article in these words:

"Mr. Laurens said, there ought to be a stipulation that the British troops should carry off no negroes or other property; we all agreed. Mr. Oswald consented, and then the Treaties were signed," &c.

This, Mr. Coit said, was all the mention he could find respecting this article, except in a subsequent part of the same letter, in which Mr. Adams observes:

"I was very happy that Mr. L. came in, although it was the last day of the conferences, and wish he could have been sooner. His apprehension, notwithstanding his deplorable affliction under the recent loss of so excellent a son, is as quick, his judgment as sound, and his heart as firm as ever. He had an opportunity of examining the whole, and judging and approving; and the article which he caused to be inserted at the very last, that no property should be carried off, which would most probably, in the multiplicity and hurry of affairs, have escaped us, was worth a longer journey, if that had been all, but his name and weight is added, which is of much greater consequence."

From these extracts, it appeared, the article was not a subject of negotiation, but inserted at the close of the transaction, without discussion, as a matter of course, and which Mr. Adams supposes might, in the multiplicity and hurry of affairs, have been omitted, if Mr. Laurens had not suggested it.

Mr. C. said, he would candidly acknowledge that it was very extraordinary to him, that the construction which had been generally put on the article in America, should have so universally prevailed, if it was not the true one, that Congress should have adopted it; and that such should have been the idea of the commissioners appointed to superintend the embarkation at New York, in the year 1783. Still more extraordinary was it to him, to find Mr. Jay himself, when Secretary for Foreign Affairs, in the year 1786, in a report he then made to Congress on the subject, considering the carrying off of those negroes as a violation of the Treaty, and saying further, that he understood from Mr. Adams, then at the Court of London, that the British Minister had no objections to making compensation for them. Still he believed, the true construction of the article was, that it was designed only to prevent plunder by the British troops, and carrying off of American property, according to the ordinary agreements in Treaties, which stipulate for the giving up of conquered countries. True, it might be asked, why say negroes or other property? The expression, he agreed, was not correct, unless a doubt might have been entertained whether negroes were property; but the word negroes must be qualified by other property, with which it is connected, and could operate only as if it had said horses or other property, which no person would contend amounted to a stipulation not to carry off what had once been, but by the laws of war and nations, before the close of the war, had ceased to be the property of American inhabitants. Four gentlemen from Virginia had insisted on this objection, and not one of them had deigned to remark on the construction of the article itself. They had all relied upon the common understanding of it. That this understanding could not change the sense of the article, if it was not doubtful, could not be denied. Their leaving the article and resorting to the common understanding of it, he conceived to be a tacit acknowledgment of the gentlemen, that the instrument itself would not bear the construction they wished to give it.

Whether the negotiator had urged this construction of the article, and found he could not obtain its admission, or even an arbitration upon it, he did not know; from his opinion of the good sense and understanding of Mr. Jay, however, he was for himself satisfied that, whatever might have been his former opinions, on attending to the subject, he had found what had been called the American construction was not the just one, and had therefore abandoned it.

Mr. C. said, he was aware that the construction he contended for had been called the British construction, and Camillus's construction; that he had himself, however, adopted more than two years ago, the first time he had paid any attention to the article, upon no other impulse or authority than his own judgment, on the perusal of it, and even before he had ever heard of any other construction of it than that he contended against, he was aware that there was a kind of patriotism which claimed every thing for one's country, whether consistently with truth, justice, and candor, or not; for himself, he had no pretensions to such patriotism. He believed Mr. Jay had none, and if he was convinced that the American construction of this article was unfounded, he thought it for his honor, and the honor of this country, that he had abandoned it.

When Mr. Coit had concluded—

Mr. S. Smith rose and said, the subject then before the committee appeared to him to be of an importance at least equal to the great constitutional question which agitated the House during the present session; it has had, and he trusted would continue to have, the same calm attention paid to its discussion. He hoped and expected that it would ultimately be determined with a view to the real interest of the nation, under the existing state of things.

When the Treaty was first published he had read it with attention, and although he had not seen all those faults with which it has since been charged, yet there was, to his view, so little good contained in it, and so much of evil to be apprehended from it, that he had felt a hope that the President would not have ratified it. He had been disappointed, yet he had not a doubt but the President, after the most mature consideration, had given his signature; being possessed, as he was, of every information relative to a subject so very important, he could better determine on the policy of its adoption than those who were less informed. Still there were many articles, particularly the commercial, which every man might judge of from the face of the instrument. On these he did not hesitate to give an opinion: which was, that they promise not one solitary advantage, and shackle our commerce in many important points. He would not trouble the committee with going deeply into a subject that has already been so ably discussed. He, however, could not refrain from a few remarks on the right to countervail our extra duties on tonnage of goods imported in foreign bottoms. He asked what would this countervail be? Could any man tell? It was not specified in the article; it was then discretionary with the British; discretionary with a nation whose rule of right has always been the measure of its power, whose conduct has invariably been to cramp and distress the commerce of all other nations. To such a nation was it proper to trust a latitude of that extent? Will she make her countervail oppressive and unjust? It is more than probable she will, and if she should, what remedy have we? None: for we are forbidden by the same article to legislate further on the subject.

He said he would take leave to explain the 13th article which relates to the East India trade, and which it has been said gives such solid advantage as to counterbalance all the evils arising out of the Treaty. He had taken some pains to inform himself on this subject, and he had found that the Americans, in common with all other nations, traded to the British and other ports of India, and were every where received with that sort of kindness which grows out of the interest that the vender has in selling his goods for ready money, and to a great profit; that our trade is so much the interest of the India Company, and of all its officers and factors, as well as of the private traders residing there; that it was ridiculous to suppose the India Company would prevent it; and, if they should, what would be the evil? Little or none; for there were other ports, belonging either to other European powers or to the natives, in the neighborhood of all the English ports, who would receive us with open arms, and supply us for our silver, on terms equal, or nearly so. He then stated that our ships could now carry from one port in India to another, to China, or to Europe; an employment that had been found very lucrative. Under the Treaty they must proceed with whatever they purchase in an English port direct to America. The article says, His Majesty consents to your trade to India, and this is called a boon. It appeared to him just as ridiculous as if his Majesty had said, he consented to our going to Great Britain to purchase its manufactures.

To enumerate the many faults he found with the Treaty, as well of omission as commission, would take up too much of their precious time; yet he trusted he should be excused for taking a short view of its leading features.

When the envoy was sent to Great Britain, he was principally to demand restitution for the cruel depredations committed on our commerce. We find that object attended to so vaguely that our best-informed men seem doubtful whether much will ever be recovered under the Treaty; they find that in every instance the loser must first pursue his remedy through their tedious and expensive Courts. We find, that by fair construction, we have acknowledged ourselves to have been the infractors of the Treaty of Peace; for what was the ground on which some of the States placed legal impediments to the recovery of British debts? Why, that Lord Dorchester had refused to deliver up or pay for the negroes which, by that Treaty, ought to have been restored, and which slaves would have assisted their masters by their labor to pay those debts; yet we see no mention of them in the Treaty; and we find, to our surprise, men, since this Treaty, defending the construction lately put on the Treaty of Peace by the British, and which had never before been heard of; thus acquiescing in the charge of our being the first aggressors. But this only relates to our honor, and of course can be of little consequence to a nation whose rule of conduct is to submit to every thing, provided, that on the whole account, there appears to be a balance of profit in its favor.

After having thus formed his opinion relative to the Treaty, his next inquiry was, is the Treaty constitutional? On that point he had held himself open to conviction, and waited its discussion. He had not heard any gentleman declare it unconstitutional, except one, (Mr. Page,) who seemed to give his opinion as if he still doubted; and having carefully considered the subject, he was now of opinion that there was nothing directly repugnant to the constitution in the instrument. He then inquired whether, under the existing state of things, the Treaty ought to be rejected? whether it contained stipulations so extremely injurious to the United States as ought to induce the House of Representatives to reject a compact made by the other branches of the Government? In the ten first articles, which are permanent, he found some objections. The third article, which, like many others, cannot be well understood, seems to say that goods imported in British bottoms to the ports of the Lakes, shall pay extra duty. If this be a true construction, it will then be necessary to repeal our restraining duties, to make the Treaty by law consistent with the constitution, which requires that all duties shall be equal. The tenth article ties our hands against sequestration, a power which ought not to be exercised, except on some very extraordinary occasions; yet it was a power which, considering our relative situation to Great Britain, it was imprudent to part with; still, on fair consideration, he did not find that there was sufficient cause, on the account, to reject the Treaty, in the situation we are now placed. The residue will expire in two or three years.