In considering the merits of the Treaty itself, Mr. N. said, he would consider the subjects which pressed themselves on the negotiator and demanded provision. These were chiefly the disputes arising under the Treaty of 1783, late depredations on our trade, and the settlement of contested principles to guard us against future misunderstandings.
The cases arising under the Treaty of 1783, as heretofore contested, were negroes and other property carried away contrary to its stipulations; the territorial claim under it, and on the part of Great Britain, an interference in the recovery of private debts.
Of the negroes, nothing is said in the present Treaty. It is to be expected in negotiations, that some concessions are to be made for the sake of accommodation, and this sacrifice of private interests becomes sometimes unavoidable. This claim was of considerable importance to a class of the citizens of the United States, but it was of still greater importance, as it justified the United States from the charge of breaking the Treaty of Peace. In this respect it was highly incumbent on the negotiator to procure satisfaction. It will not be contended that it should have been a sine qua non in the negotiation, and it would not now be mentioned, if it was not necessary to a fair estimate of some of the stipulations of the Treaty, and if there had not been so uniform a surrender of the interests of the United States as to compel a calculation. It is now said, indeed, that the meaning of the Treaty of 1783 was mistaken, and that the engagement was only to refrain from carrying away negroes, &c., which should be found in possession of the inhabitants at the time peace should take place. It is not necessary now to go into a construction of the words of the article, as its meaning has certainly been fixed by the interpretation of the parties in the ten years which elapsed after it. In all that time the United States have asserted the claim, and it cannot be shown that Great Britain ever contested the construction of the article. It is said, that one of the Commissioners, (Mr. Adams,) who concluded the Treaty of 1783, in behalf of the United States, informed the Senate, in their deliberations on this Treaty, that it was the unquestionable meaning of the article, to save all negroes and other property then in the hands of the British; that the article was inserted after all other points had been settled at the instance of Mr. Laurens, who just then arrived from his confinement in London, and the reason assigned by him was, that many of the people of the United States would be disabled from complying with the part of the Treaty which respects debts unless this provision was made; that the same gentleman, who was afterwards Ambassador from the United States to the Court of London, also informed the Senate that, during his embassy, this construction of the article was never denied, and that it seemed to be understood by the Ministry, that, on a settlement with the United States, compensation must be made. This subject was fully investigated by the negotiator of the Treaty (Mr. Jay) while he was Secretary of Foreign Affairs; all the reasons which now arm the friends of the Treaty against this claim were examined by him, and then his decision was, that we were entitled to compensation. The reputed author of the best defence of the Treaty, (Mr. Hamilton,) in the year 1783, introduced a resolution into Congress, declaring that the negroes, &c., had been carried away by the British armies, contrary to the true intent and meaning of the Treaty. Mr. N. thought it too late to extort a meaning from a contract after it had existed more than ten years; and he did not doubt every candid mind would be satisfied by the acquiescence of Britain, and the evidence which he had produced of a perfect understanding between the two countries on the subject. If the new construction of the article could not be established, the first infraction of the Treaty of 1783 remained indisputable. Before the Treaty became binding, Great Britain, by carrying away the negroes, put it out of her power to execute the contract which she had made, while, on the part of the United States, no act had been done which was inconsistent with the Treaty, provided the acts of the States did not continue to operate after the ratifications were exchanged.
Before he examined the cases provided for in this Treaty, it was necessary to remark, that the Treaty declares its intention to be to settle the disputes of the two countries without regard to former criminations, and all the writers in favor of the Treaty, declare that it was necessary to waive the first infraction of the former Treaty. This was a proper principle, and he only asked that it should have been pursued. This spirit of conciliation must have meant to put both parties on the same footing, either by agreeing that neither party had been the cause of the Treaty not being executed, or that both had been equally guilty. He would examine whether either of these concessions had been pursued.
To obtain a surrender of the posts, and the territory withheld from us, we have sanctioned the subsequent alienations of land by the King of Great Britain. We have confirmed the claims of the inhabitants and dispensed with their allegiance, by permitting them to remain subjects of Great Britain; we have opened our frontier to all their citizens, and permitted them to retain a share of the Indian trade. Mr. N. did not pretend to judge of the commercial effect of the intercourse between the frontiers, but he apprehended that, in another respect, this concession would destroy the whole value of the acquisition. The traders would be enabled to maintain their accustomed influence over the Indians, and would have more inducements than when they had a monopoly of the trade to embroil them with the United States. Formerly, they were interested in their continuing in peace, as war prevented the acquisition of skins and furs; but when American traders shall embark in the trade, they will have an obvious interest in war as the certain means of banishing their rivals. It appears, then, that the Treaty of 1783, in this respect, is not revived—that there is a new contract with respect to the posts, and much less will be obtained than if that Treaty had been executed.
When the claims of Great Britain, under the Treaty of 1783, became the subject of the present Treaty, the stipulations discover a different principle. The United States give up the claim for negroes, and agree to receive the posts on terms which greatly diminish their value; but, when the debts due from citizens of the United States to subjects of Great Britain are to be provided for, there is not a stipulation that they may now be pursued without hindrance, but there is an engagement, on the part of the United States, to pay all losses which have arisen from the infraction of the Treaty of Peace, so far as it respects them. On what ground could this assumption have been made? Why is this penalty imposed on the United States? There can be but one justification, and that is, that they had been guilty of the first infraction of the Treaty of Peace, and must make amends; but there was to be no concession of this kind, so that if damages were to be given at all, they should be given on both sides. It seems clear, then, whatever pretences are made by the Treaty or its advocates, that the first infraction of the Treaty of Peace is fixed on the United States, and that they are to make compensation for an injury. Where does the conciliating temper of Great Britain manifest itself? Had she a claim under the Treaty of 1783, which is forgotten? Does she not receive every thing which she could have demanded in relation to that Treaty? The United States are to indemnify her citizens completely for the non-execution at the time, and are to receive less than was promised them without the least compensation for the delay. But it is somewhere said, that the damages could not be demanded for withholding the posts, because they could not be computed. It will be agreed by those who press the acceptance of this Treaty in order to obtain the posts, that they are important to the United States. If of the consequence which they are represented to be, twelve years dispossession must have been a real injury, and the claim on Great Britain will be indisputable, although the amount may not be certain. This might be a good pretext for evading a payment to the United States, if this claim stood unconnected with any other; but it must be considered as a very shameless suggestion to enforce the payment of damages incurred by them. It is certainly a sufficient justification for retaining what is in their hands until Great Britain shall offer something on this account; otherwise she will be screened by her cunning in causing the subject of injury. Again, it has been said that this inequality in the Treaty was proper, because the right to recover debts returned with the peace, and did not depend merely on the Treaty. It is to be remembered, that the United States justify it as a retaliation for breach on the part of Great Britain, and that, in forming this Treaty, it was agreed to waive the right to retaliate: or, rather, the question, who first infringed the Treaty. It is only to be inquired, then, whether this was a proper subject of retaliation? and if it was, the United States ought to escape all penalty for using it, or Great Britain must be equally subject to compensation for her infractions. (For this, see Marten's Law of Nations, page 268, where it is said that it matters not, in this respect, whether rights are innate, or whether they have been acquired by express or tacit covenant, or otherwise.)
Another class of claims which may fall on the United States is still more alarming—those for war-interest. The Treaty has explicitly authorized the commissioners to judge of all claims of British subjects lost by legal impediments, whether of principal or interest, and they are to determine according to justice, equity, and the law of nations. In the correspondence on this subject between the two Governments, the right has been asserted and denied; and it will depend on the commissioners to say whether war-interest is due or not; and it being to be supposed that the commissioners will advocate the principles of their respective Governments, the United States are to depend on the chance election of the fifth commissioner for safety. If it shall be determined that it is due, the mischief will be insufferable. It will not merely be recovered in those cases where the principal is unpaid, nor will it be confined to those cases where it has been lost by actual judgment of a court, but will extend to all cases of private settlement, where the decision of the Judiciary of the State had previously settled the principle.
It appears, then, that on the subject of the disputes arising under the Treaty of 1783, there is no cause for congratulation. The claims for negroes carried off are abandoned; the posts are to be delivered up, on terms not unusual and dishonorable, but extremely dangerous to the future peace of the United States, and to obtain them in this manner we incur an obligation to pay a sum which probably will not fall short of five millions of dollars, and which may possibly amount to fifteen millions. When it is remembered that these claims commenced with our independence, and that they were the concessions to our infant struggles, what American is there who will not feel the disgrace to our manhood in abandoning them? All must blush at a comparison of the Treaty we obtained with our arms, with that which has been dictated by fear.
The next subject which claimed the attention of a negotiator was the injury recently sustained in the commerce of the United States; and on this subject it will be proper to review the circumstances in which the negotiator left this country. The losses sustained had been considered here as outrages of so serious a nature that all parties had concurred in demanding reparation; some had attempted at once to use coercion, and those who approved the mission declared that war must follow a failure. In this situation, where the sense of Government and people was decided, and where the injury was not only intolerable in itself but was likely to be repeated, it seems astonishing that a man could be found who would conclude a Treaty which gives to the United States no compensation, but more astonishing that partisans could be found here who approved his conduct. It may be asserted that no compensation is secured by the Treaty, and that under its operation it is equally probable that none will be received. See the article. It has been doubted, and is, perhaps, very doubtful, whether the Courts of Great Britain are not made the judges of irregular and illegal captures and condemnations, and whether the orders of the King are not admitted as good cause of seizure; but it never has been contended that compensation is promised in any particular case, or that any principles are established by the Treaty which are to govern the commissioners. In the construction of their powers, insisted on by the advocates of the Treaty, their guides are justice, equity, and the laws of nations. Nobody can complain of these principles, if their fair operation was secured; but a moment's attention will show that this was nothing but an evasion of the subject.
It will not be understood that I suppose it was in Mr. Jay's power to make his own terms, but I complain of his treating at all on the terms he did. It is said that it was not in his power to extort what he wished, but I complain that he yielded to the extortion of Great Britain. What has he left her to ask, what has he not surrendered? While professing, as the Treaty does, that there were important points of our commerce left for future negotiation, why bind us to continue to Great Britain the fullest share of our commercial privileges? If the Treaty had been the most complete and satisfactory, would it not be necessary to leave something to enforce its execution? What weapons have we which can reach her? The Treaty makes war indispensable, as the only redress of injuries, and how will war from the United States reach Great Britain? It was certainly improper to give up all power of restricting her commerce until the same instrument contained the fullest satisfaction as to our own. It was improper to give up all the power of seizing on the debts of her subjects, for this, when the power of restricting her commerce was bartered for equal privileges, would be the only means of maintaining respect. It is not necessary that weapons of any sort should be used, but it is more dangerous to surrender them. I am no friend to interference in private contracts, and I can truly say, I never was willing to resort to this remedy till all others had been tried; but if there was an impossibility of doing it, the want of the power would immediately be felt. The impolicy and immorality of sequestration have been dwelt on. Contrast it with war, for which it is a substitute, and it will be found in both respects unequal to it. All national remedies are attended with great mischiefs to those who use them, and they must be adopted only on comparison in this respect, and with regard to their effects on the enemy. In this last respect there seems to be no choice to the United States; they have no other weapon that can reach Great Britain, and I greatly fear that, when this is lost, we are completely disarmed.