No doubt we have a right to make reprisals, as the Legislature has a right to declare war; but he doubted whether the United States, in their present situation, would find it their interest to go into such measures. The authority read from Vattel by the member last up, he observed, made against that member's opinion. Vattel expressly says that reprisals should not be made on property intrusted to public faith. The debts of British subjects here are in that predicament. He had heard that gentleman, not long since, with pleasure, expatiate with warmth on the advantages of credit, especially to this country. Should that credit be destroyed (he asked) by destroying the confidence of foreigners in our faith? But, even if this retaliation is lawful, will it be the interest of the citizens, or rather of the Government, to take such a step at the present time? We have no doubt been cruelly treated; but we have made proper application for redress, and received an answer? We should first send a special envoy and insist on an immediate answer. This would be the mode of securing peace; at least, it offers the best chance of securing it.
The aggressions on our commerce made by Great Britain are no doubt enough to rouse any American's feelings; but the Legislature ought not to be swayed by passions; they should discuss the subject calmly and deliberately. He hoped the committee would rise and allow time, at least, to take the necessary measures of defence; for, could the Legislature justify to their constituents this step of retaliation, should immediate hostilities, warlike hostilities, be the consequence? To justify a measure of this kind time should be given for the defensive system adopted to be carried into operation.
Mr. Mercer next spoke. He owned the measures proposed appeared to him great and momentous, and, had he any powers of declamation, he should think it improper to give loose to them on a question of this kind. We should weigh well our interest, examine carefully the situation in which we stand, and determine calmly where we shall place our next step. The proposition is, to arrest, not to confiscate, the debts due to British subjects. From his recollection of the positions established by the best jurisprudence writers, no doubt remained in his mind that we have a clear right to secure to ourselves reparation in that way, and, in our predicament, confiscation even would be warranted, and by a point as firmly established as any principle which has the general practice of nations for a basis.
One of the latest writers on national law (Binkershoek) is of opinion that debts are property, as well as any thing else, and sees no reason why they should not, as well as other kinds of property, be seized to secure indemnity for injuries. This is the opinion of Wolfius, of Vattel, Grotius, and of his commentators. He could go on with a long list of authorities, and refer to actual treaties to show that it has been the practice of nations. Having established the right, he proceeded to consider the expediency of the propositions. Gentlemen, he hoped, did not wish that we should make a solemn declaration of war before we acted. This is no longer the custom among nations. It would be a pompous display of candor which no longer exists. Have any nations in the present European war, premised their operations by a declaration? No; their first step was to do all the injury in their power to their enemies. Then, we having taken what steps will best tend to our security, and give us the best hold of our enemy, let us not, however, lose sight of a settlement by negotiation. Let us show mankind that peace is our first wish. When we are thus prepared, let us step forward to an amicable negotiation. Let us call on the Executive to send forward some proper person to the Court of Great Britain, to assure them that we have a high sense of the injury done us; that we have it in our power to resent it, but wish to see the difference settled by receiving an indemnification. We shall thus make it their interest as well as duty to allow it. This he conceived to be the line of conduct we should adopt if we wished to preserve the Western Hemisphere from the scourges that desolate the Old World. By some such measure as that proposed, we should make their motives for peace more weighty, and we should give assurances of our amicable disposition, by showing that all we wish is a just compensation.
In a matter of this kind he was sensible of the danger of precipitation. The best mode of arresting the property proposed should be calmly weighed. He believed that something like the proposition made by Mr. Smith, of South Carolina, before the House resolved itself into a committee—a stop to all transfers of British property—would be proper as a preliminary step.
He concluded with some observations on the respect which nations, however weak, will command from their superiors in strength, by showing that they will not suffer imposition, by joining heart and hand in defence of their rights. This spirit, he was sure, animates Americans, and now their power is better able to keep pace with that spirit than when we humbled that nation. At that time we were in our infancy—an infancy by no means thriving under the trammels of the mother country—and, when they turned us adrift, and began their hostile spoliations, they carried with them all our means of defence; but now, thank Providence, we have spirit and power to defend ourselves. If the gentleman from South Carolina (Mr. Smith) would modify his proposition, and make the term thirty days, it should have his assent in preference to that now before the committee.
Mr. Smith (of South Carolina) said, that the proposition he had read before the House went into committee was in the nature of an embargo on debts, securing them from transfer until the necessity of sequestering them more plainly appeared. The proposition did not then appear to meet the wishes of the House. When the committee should rise he would again bring it forward. The question now before the committee is, whether they will agree to a sequestration of British debts. He wished this object had not been coupled with the indemnification to our own citizens, because it is fairer to decide each question upon its own merits. That part of the resolutions which contemplates an indemnification may give a weight to the first part which it might not intrinsically deserve.
He made some observations on the propriety of cool deliberation on the present important subject. The passions should be banished, and calm reason more than ever courted. It requires all the wisdom of the Legislative body now to combine our national honor with our national safety. He had doubts on the propriety of the resolutions proposed, but acknowledged that the arguments used in their favor had great weight in his mind. If the situation of this country be compared with that of other commercial nations, the propriety of something like the present resolutions would appear more evident. When other commercial nations wish to quarrel with us, their navies enable them to seize our vessels, and we cannot retaliate in the same way. Then we must fly to such means of retaliation as are in our power. If they take our property of one description, and we cannot lay our hands upon the same kind, we must take any of theirs within our reach. This reasoning has, no doubt, great force; but the sacredness with which the modern usages of nations has shielded debts is a great bar to our proceeding in the present case. Contracts between individuals are now considered as out of the reach of governments, and it is the modern usage not to meddle with them. In the beginning of our late war, debts were not confiscated. The State of South Carolina, though certainly not wanting provocation, while confiscating all other property, left debts untouched, under the idea that private contracts are sacred. But this, in a case of war, and urgent necessity, might be overlooked; but if we are not in a state of war, perhaps meddling with private contracts might provoke it. Credit is certainly important to this country. We should consider how far the operation of the resolutions proposed would give a shock to it. Besides, they might have a tendency to involve us in future wars. We shall yet long be under the necessity of receiving certain supplies from Europe, and shall have debtors among us for those supplies. These debtors may at any time, when the burden weighs heavy, think of easing it by fomenting dissensions with the foreign creditor nation, in expectation that a confiscation of the debts may be an effect. It is true that, in such a case, they will not be exonerated. But it cannot be supposed that the government to whom the debts would be transferred could prosecute the recovery of them with as much ardor as an individual.
The gentleman last up had relied on the authority of ancient and foreign jurists. Some among this class of writers warrant putting prisoners to death—a principle which modern custom has put a stop to. They also, it is true, warrant the confiscation of debts; but Burlamaqui says this is not the practice of modern nations. None, or very few trifling examples can be cited, he believed, of a departure from this principle, in modern times, among nations where commerce is cherished. This country depends on commerce, and credit is one of the means by which it flourishes; we should, then, not endeavor to weaken it. If we are once over the barrier, by trifling extensions of the principle we may be carried to immoderate lengths, indeed. Some persons who are in favor of sequestering private debts, speak with horror of touching the public funds. For his part, he did not see much difference between confiscating private and public debts. The object is the injury of an enemy, and to retaliate for injuries. Again: if we go to war with Great Britain, it is probable we shall be involved with her allies, then will it be said, that we shall confiscate what the Dutch lent us at a time of distress or since the peace. The Dutch have bought largely in our funds. The same principle will lead us to lay our hands upon that property. It will be difficult to draw a line, if we admit the principle.
Under these impressions, if called upon to give his vote, he should now feel much embarrassment. It had been said that the adoption of the present resolutions would be a means of obliging Great Britain to do us justice; that it would strike a terror among the subjects of that country, and make them clamorous for peace. It might, he feared, have a very different effect exasperate them, and unite the people with the Government against us. Some further forbearance on our part may separate them. It will convince the people of Great Britain that we really wish for peace, and then, if war is the issue, the impression will be severely felt by that Government. We shall render the Administration very unpopular, and hasten its dismission for one more friendly to this country. He was of opinion this crisis was fast approaching.