Mr. Gallatin said he would not follow some of the gentlemen who had preceded him, by dwelling upon the discretion of the Legislature—a question which had already been the subject of their deliberation, and been decided by a solemn vote. Gentlemen who had been in the minority on that question might give any construction they pleased to the declaratory resolution of the House; they might again repeat that, to refuse to carry the Treaty into effect, was a breach of the public faith, which they conceived as being pledged by the President and Senate. This had been the ground on which a difference of opinion had existed since the beginning of the discussion. It was because the House thought the faith of the nation could not, on those subjects submitted to the power of Congress, be pledged by any constituted authority other than the Legislature, that they had resolved that, in all such cases, it was their right and duty to consider the expediency of carrying a Treaty into effect. If the House thought the faith of the nation already pledged, they could not claim any discretion; there would be no room left to deliberate upon the expediency of the thing. The resolution now under consideration was merely "that it was expedient to carry the British Treaty into effect," and not whether they were bound by national faith to do it. He would, therefore, consider the question of expediency alone; and, thinking as he did, that the House had full discretion on the subject, he conceived that there was as much responsibility in deciding in the affirmative as in rejecting the resolution; that they would be equally answerable for the consequences that might follow from either.
It was, however, true that there was a great difference between the situation of this country in the year 1794, when a negotiator was appointed, and that in which we were at present; and that consequences would follow the refusal to carry into effect the Treaty in its present stage, which would not have attended a refusal to negotiate, and enter into such a Treaty. The question of expediency, therefore, assumed before them a different and more complex shape than when before the negotiator, the Senate, or the President. The Treaty, in itself, and abstractedly considered, might be injurious; it might be such an instrument as, in the opinion of the House, ought not to have been adopted by the Executive; and yet, such as it was, they might think it expedient, under the present circumstances, to carry it into effect. He would, therefore, first take a view of the provisions of the Treaty itself, and in the next place, supposing it injurious, consider, in case it was not carried into effect, what would be the natural consequences of such refusal.
The provisions of the Treaty relate either to the adjustment of past differences or to the future intercourse of the two nations. The differences now existing between Great Britain and this country arose either from the non-execution of some articles of the Treaty of Peace, or from the effects of the present European war. The complaints of Britain in relation to the Treaty of 1783 were confined to the legal impediments thrown by the several States in the way of the recovery of British debts. The late Treaty had provided adequate remedy on that subject; the United States were bound to make full and complete compensation for any losses arising from that source, and every ground of complaint on the part of Great Britain was removed.
Having thus done full justice to the other nation, America had a right to expect that equal attention should be paid to her claims arising from infractions of the Treaty of Peace, viz: compensation for the negroes carried away by the British; restoration of the Western posts, and indemnification for their detention.
On the subject of the first claim, which had been objected to as groundless, he would observe, that he was not satisfied that the construction given by the British Government to that article of the Treaty was justified even by the letter of the article. That construction rested on the supposition that slaves came under the general denomination of booty, and were alienated the moment they fell in the possession of an enemy, so that all those who were in the hands of the British when the Treaty of Peace was signed, must be considered as British, and not American property, and were not included in the article. It would however appear by recurring to Vattel, when speaking of the right of postliminium, that slaves were not considered as part of the booty which was alienated by the act of capture, and that they were ranked rather with real property, to the profits of which only the captors were entitled. Be that as it may, there was no doubt that the construction given by America was that which had been understood by the parties at the time of making the Treaty. The journals of Mr. Adams, quoted by a gentleman from Connecticut, (Mr. Coit) proved this fully; for when he says that the insertion of this article was alone worth the journey of Mr. Laurens from London, can it be supposed that he would have laid so much stress on a clause which, according to the new construction now attempted to be given, meant only that the British would commit no new act of hostility? would not carry away slaves at that time in possession of Americans? Congress had recognized that construction by adopting the resolution which had been already quoted, and which was introduced upon the motion of Mr. Alexander Hamilton; and it had not been denied that the British Ministry, during Mr. Adams's embassy, had also agreed to it.
But when our negotiator had, for the sake of peace, waived that claim; when he had also abandoned the right which America had to demand an indemnification for the detention of the posts, although he had conceded the right of a similar nature, which Great Britain had for the detention of debt; when he had thus given up every thing which might be supposed to be of a doubtful nature, it might have been hoped that our last claim—a claim on which there was not and there never had been any dispute—the Western posts should have been restored according to the terms of the Treaty of Peace. Upon what ground the British had insisted, and our negotiator conceded, that this late restitution should be saddled with new conditions, which made no part of the original contract, Mr. G. was at a loss to know. British traders were all allowed, by the new Treaty, to remain within the posts without becoming citizens of the United States, and to carry on trade and commerce with the Indians living within our boundaries, without being subject to any control from our Government. In vain was it said, that if that clause had not been inserted we would have found it our interest to effect it by our own laws. Of this we were alone competent judges; if that condition was harmless at present, it was not possible to foresee whether, under future circumstances, it would not prove highly injurious; and, whether harmless or not, it was not less a permanent and new condition imposed upon us. But the fact was, that by the introduction of that clause, by obliging us to keep within our jurisdiction, as British subjects, the very men who had been the instruments used by Great Britain to promote Indian wars on our frontiers,—by obliging us to suffer those men to continue their commerce with Indians living in our territory, uncontrolled by those regulations, which we had thought necessary, in order to restrain our own citizens in their intercourse with these tribes, Great Britain had preserved her full influence with the Indian nations; by a restoration of the posts under that condition, we had lost the greatest advantage that was expected from their possession, viz: future security against the Indians. In the same manner had the British preserved the commercial advantages which resulted from the occupancy of these posts, by stipulating as a permanent condition a free passage for their goods across our portages, without paying any duty.
The remaining provisions of the Treaty had no connection with past differences; they made no part of the Convention which had been the avowed object of Mr. Jay's mission; they applied solely to the future intercourse of the two nations as relating to commerce and navigation; and had they been entirely omitted, our differences would have been nevertheless adjusted. It was agreed on all hands, that so far as related to our commerce with Great Britain, we wanted no Treaty. The intercourse, although useful perhaps to both parties, was more immediately necessary to England, and her own interest was a sufficient pledge of her granting us at all times a perfect liberty of commerce to her European ports. If we want to treat with her, it must be in order to obtain some intercourse with her colonies, and some general security in our navigation.
The twelfth and thirteenth articles had been obtained by our negotiator with a view to the first object. The twelfth article, however, which related to our intercourse with the West Indies, was found, upon examination, to be accompanied by a restriction of such a nature, that what had been granted by Great Britain as a favor, was rejected by the Senate as highly injurious. The thirteenth article, which related to the East Indies, and remained part of the Treaty, was, like the twelfth, conferring a favor limited by restrictions, and so far as he could depend upon the opinion of the best-informed judges on that subject, those restrictions put the trade in a more disadvantageous situation than it was before the Treaty. As the West India article had declared that we should not re-export any produce of those islands to Europe, so the East India article, at the same time it granted us the privilege, which we enjoyed before, and which we enjoyed because it was the interest of the East India Company to grant it to us, that of being admitted in the British seaports there, had forbidden our carrying any articles from thence to any place except to America; which regulation amounted to a total prohibition to export East India articles to China, or to obtain freights back to Europe; and, upon the whole, he could not help thinking, from what had fallen on that floor, and what he had heard elsewhere from gentlemen of great commercial knowledge, that if the East India commerce had been as generally understood in America as the West India trade, that so much boasted of article would have met the same fate in the Senate with the twelfth article.
During the American war, in the year 1780, so fully convinced were the neutral nations of the necessity of introducing that doctrine of free bottom making free goods, that all of them, excepting Portugal, who was in a state of vassalage to, and a mere appendage of Great Britain, had united in order to establish the principle, and had formed for that purpose the alliance known by the name of the Armed Neutrality. All the belligerent powers, except England, had recognized and agreed to the doctrine. England itself had been obliged, in some measure, to give for a while a tacit acquiescence. America had completely, at the time, admitted the principle, although they were then at war, [Mr. G. quoted on this subject the Journals of Congress of the year 1780, page 210, and of the year 1781, page 80,] and it had been introduced in every other Treaty we had concluded since our existence as a nation. Since the year 1780, every nation, so far as his knowledge went, had refused to enter into a Treaty of Commerce with England, unless that provision was inserted. Russia, for that reason, would not renew their Treaty, which had expired in 1786, although he believed that, during the present war, and in order to answer the ends of the war, they had formed a temporary convention, which he had not seen, but which, perhaps, did not include that provision. England had consented to it in their Treaty with France in 1788, and we were the first neutral nation who abandoned the common cause, gave up the claim, and, by a positive declaration inserted in our Treaty, had recognized the contrary doctrine. It had been said, that under the present circumstances, it could not be expected that Great Britain would give up the point: perhaps so; but the objection was not, that our negotiator had not been able to obtain that doctrine, but that he had consented to enter into a Treaty of Commerce (which we did not want, and which had no connection with an adjustment of our differences with Great Britain) without the principle contended for making part of that Treaty. Unless we could obtain security for our navigation, we wanted no Treaty; and the only provision which could give us that security, should have been the sine qua non of a Treaty. On the contrary, we had disgusted all the other neutral nations of Europe, without whose concert and assistance there was but little hope that we should ever obtain that point, and we had taught Great Britain that we were disposed to form the most intimate connections with her, even at the expense of recognizing the principle the most fatal to the liberty of commerce, and to the security of our navigation.
Mr. G. was not going to enter into a discussion of the immorality of sequestering private property. What could be more immoral than war? or the plundering of the high seas legalized under the name of privateering? Yet self-defence justified the first, and the necessity of the case might, at least in some instances, and where it was the only practicable mode of warfare left to a nation, apologize even for the last. In the same manner the power of sequestration might be resorted to, as the last weapon of self-defence, rather than to seek redress by an appeal to arms. It was the last peace-measure that could be taken by a nation; but the Treaty, by declaring that in case of national differences it should not be resorted to, had deprived us of the power of judging of its propriety, had rendered it an act of hostility, and had effectually taken off that restraint which a fear of its exercise laid upon Great Britain.