In the first paragraph of the eighth section of the first article, the same words are repeated; common defence and common protection to the external interest of the United States, are then the peculiar objects of its Government. An embargo under some circumstances is not only a proper but a necessary and indispensable means of common defence and protection; I might say that the present crisis is a strong illustration of such necessity. But if the right to lay an embargo is controverted, I would ask by what means is the Government in time of war, or expected war, under the authority of law to secure the property of its citizens, which it is the business of all Governments to do, towards all who claim under it the protection of their rights? Where is the power lodged, if not in the National Legislature, which shall prohibit your own, or even your enemies’ vessels from leaving your ports, after a declaration of war? Are the States vested with, or do they generally retain the right to lay an embargo? No, sir, they cannot so far enter into the collisions of interests which would follow among each other by preventing the vessels from sailing from the ports of any of them. The effect of doing so would be too obviously an invasion of the general powers of commercial regulation solely intrusted to Congress. Can any man of rational mind suppose, then, that the Government of this country is really so defective in what is not only to common sense an obvious reason, but one of the express objects of its institution?
But to lay an embargo is unconstitutional, because Congress cannot lay an export duty! And it is argued by the same gentleman that the lesser power being thus provided against, the exercise of the greater must of course be included in the prohibition; the minor forming an objection, the major is, a fortiori, inadmissible. How easily, sir, is this argument of inference retorted on the gentleman; for, according to a familiar and certainly plain course of reasoning, it would seem, that if the subjects are the same as is said, when the framers of our constitution made an exception of the lesser power, if they had intended also to except the greater, they would not have forgotten it.
The reasons which influenced the framers of that instrument to provide against the power of laying an export duty, were obvious; the provision was adopted in that spirit of mutual accommodation, which was so necessary to the harmony of the whole. It would be difficult, it was easily foreseen, to devise an export duty, which would not bear harder on some of the States than others; it was better therefore not to resort at all to a mode of taxation which would afford so fruitless a source of contention. The policy too of taxing exports was perhaps radically inadmissible; yet I cannot, for my life, discern how an export duty has been drawn into analogy with an embargo.
That the embargo was a curse, and continues to be a most calamitous one to us all, I have heard no one deny; but until now, I have not heard the assertion advanced that our Government, by its conduct, was the author of that curse. Yes, sir, many evils which the injustice of other nations has inflicted on the peace and honor of the United States are acknowledged to be curses of the most irritating and affecting nature; but the gentleman has said more for England and France, than either of them has before said for itself, when he attributes to his own Government the misconduct which has produced those evils. It was scarcely to be expected that any state of internal division or any views of whatever description would have produced on this floor an assertion which has thus put a new argument in the hands of our enemies in justification of their aggressions on us; it is more than our enemies have asserted. We have heard indeed from France and England that their decrees and orders, which make the present voluntary retirement from the seas necessary on our part, were the effect of an unjustifiable attack, which each has attributed in the first instance to the other. Each criminates the other, and not America, with being the author of the peculiar mode of warfare which has proved so destructive to the rights of neutrals. The very language of their orders and decrees assumes this position, and they are all prefaced with the declaration, that their orders are enacted in the spirit of retaliation on each other, and not, sir, for any offence which our Government has been the author of, as the gentleman now tells the American people; for what purpose let the nation judge.
I may surely be permitted to express my surprise and astonishment at this assertion, sir, as it has never before been insinuated, on this floor at least; and as it forms so strong a contrast with the declarations which have been before made by the same gentleman, permit me to recall the gentleman’s attention to his arguments in conclave, and to notice, if it will not be out of order, (which I presume it will not, as all which then took place has since been directed to be published,) the grounds of his opposition to the embargo at that time.
It is recollected by us all that the honor of presenting a resolution in conformity to the policy recommended by the President, in his Message of the 18th of December last, was an object of emulation between the gentleman from Virginia and one from Massachusetts, (Mr. Crowninshield,) whose absence from the House the nation has so much cause to deplore, and we all so sensibly feel. I thought it then, and still think it an honorable emulation, arising from a patriotic sense of duty. The gentleman from Virginia finally succeeded, and became the author of the resolution in this House for laying the embargo; scarcely had he, however, presented the resolution, the necessity of which he at the same time took occasion to observe he had long foreseen, and, for two years at least, before the period when it was recommended, (and, of course, sir, prior to the rejection of this noted London Treaty of December, 1806, now so much eulogized,) scarcely had he thus expressed his approbation of the embargo, till he again doubted its policy, and soon after denounced its justice, not yet, indeed, for any of the reasons we now hear, respecting the rejection of the treaty, but because it was a measure said, or insinuated, to be dictated by France; and that it was to have an injurious operation solely on England. It was in vain that the friends of the embargo urged the probable existence of the very grounds that measure now more strongly rests on; that the hostile determination of France to enforce her decree of November 21, 1806, would probably be followed by orders as harsh on the part of Great Britain; that this was the course of policy the adoption of which England had already announced, and its execution might, therefore, be fairly anticipated; that the King’s proclamation of the 16th of October, 1807, a copy of which accompanied the President’s Message, was an evidence of the determination of that Government to offer no satisfactory accommodation of our differences, and of its determined usurpation of our maritime rights; to these arguments nothing was replied, but the repetitions in lengthened speeches of the same charges. The opinions then avowed, sir, by the advocates of the embargo, have met with support from the events which have since been developed, while the unjustifiable grounds of opposition are abandoned, even by their authors. But, sir, if there is any gentleman, who, with his eyes open to the situation of the commerce of the world, will say that the embargo ought to be removed, and that the policy is unsound, let me ask him to tell us what, in the embarrassing state in which we are placed by the efforts of France and England to involve us in their conflicts, we are to do? The gentleman from Virginia has hinted at arming our merchantmen! War, then, is the substitute; it is, indeed, the only one, I agree. To arm our merchantmen, leads to war—nay, sir, it is war, according to the interpretation nations have a right to put on such an act of a Government; it will be opposed by open war and undisguised hostility. If we are to have war, let it be in the direct tone and unequivocal language of a nation indignant at the insults it has received, not in the indirect manner of arming a few trading vessels, the masters of whom would choose for the nation its enemy, or involve us with both the belligerents at once, as their particular animosities might dictate; if we are to go to war, it might be well to fight one at a time at least. But, sir, I cannot but hope if our strong, but pacific policy is adhered to, cursed as it is said to be, it may yet preserve us from the conflicts of Europe. It is a curse, indeed, sir, under which we are compelled to labor, but what is the alternative? I have thought much, sir, on the subject; it has been my duty as well as that of every other gentleman to weigh it well. We hear its effects are severely felt, and we hear, too, what are the exertions of our opponents to seize the favorite opportunity which it is so well calculated to produce, to excite the sensibility of the people through the medium of their immediate interests. But remove the embargo, and we must arm our vessels, and war is at once declared. I have heard no one deny that this must be the alternative. Compare the evils, both of great extent. I admit, by the embargo, we lose half the value of the products of our country, or the receipt of it is suspended; by war, to admit the effect in this particular, no worse, at least it could be no better; but have we counted the costs of the armies we are to raise, and to pay, of the supplies we are to furnish, of the loss of our blood, and the diminution of our strength, of the reduction of the profits of agriculture itself, by calling men from their domestic occupations, and lessening the number of hands for tillage—have we calculated the thousand other evils which follow in the train of war? To plunge into war, sir, to escape the curse of the embargo, would be truly fulfilling the adage of old—“out of the frying-pan into the fire.” I do not hesitate to say that, if we have patriotism enough to pursue our own interests, better would it be for this country to remain under the truly calamitous curse of the embargo for years, than at once to launch itself into war. But if we must at length, after all our efforts to prevent it, have war, let it be a war dependent on national sentiment, and arising from no doubtful necessity, which must be produced by the conflicts of our vessels at sea. We all know, and have felt that it has required the exertion of an unparalleled fortitude, to resist the emotions which have impelled us to acts of vengeance and redress for our injuries; let us not, then, seek for new causes, of doubtful necessity, to place us at once at war, as would be the case by arming our vessels. No, sir, let it be a cause which, in spite of our divisions, so earnestly of late fomented, must unite us in one spirit of opposition, in one sentiment of indignation against the enemy who shall attack us, with the spirit of unanimity with which a sense of injury will inspire us. I do not too highly estimate our strength, or, I trust, our patriotism, when I say, that no army which Europe combined could transport across the Atlantic, could long withstand the American arms. That we have had ample cause, of war, wanton, unprovoked cause, I had not, till now, supposed had been doubted; we are now, indeed, informed that our Government is to blame, and that the insults and injuries to which we have been subjected, are, in a great measure, attributable to its misconduct. What the object is, in making these assertions, let the nation judge; believing them groundless, I do not fear to be able to prove them so. The non-importation law has been mentioned as one of the subjects of just umbrage to England, and as having had an embarrassing effect on the state of our negotiations there. The gentleman has certainly but little attended to the documents which have lately been read in this House; if he had, he would there have found, under the sanction of authority which he is not presumed to doubt, that it was a measure one of our Ministers in London has given his most unequivocal approbation to.
It was said that our Ministers were suppliants at a foreign Court—our Government must place an efficient instrument in their hands; and a coercive system of policy is recommended, with a direct allusion to the enaction of the non-importation law before the rising of the Congress then in session.
We are told, too, that a principal cause of our embarrassments is the rejection of the treaty concluded by our Ministers in London on the 31st of December, 1806. This assertion has been made here, sir, with such earnestness that it requires examination. The treaty which has been rejected by our Government has been eulogized, and a month’s discussion of it has been challenged; not, it is true, wholly on its intrinsic worth, or positive merits, but because the circumstances, also, under which it was concluded, made its provisions proper, and its adoption necessary. The Treaty of 1794, commonly called Jay’s Treaty, I understood the gentleman also to say, would under the existing circumstances of December, 1806, have been proper for our adoption. This was, indeed, sir, a necessary preface to his defence of the rejected treaty, for it is certainly susceptible of easy demonstration, that it is, in its features and provisions, far more objectionable and defective than the Treaty of 1794; and, whether we take it on the ground of peculiarity in the circumstances of the contracting parties, or on its intrinsic merits, it has less claim to our assent.
In the first place, let us examine the circumstances under which those two treaties were made, and then compare their respective provisions. From the retrospect I am at this time able to take of our situations at those different periods, I cannot hesitate to believe that the circumstances under which the Treaty of 1794 was made, were more unfavorable for negotiation on the part of the United States at that time, both as they respected England and America, than they were in December, 1806. As they respected England, her situation was at the former period infinitely more commanding. By her combinations with the great powers of Europe, as early as 1792, or perhaps antecedent to that year, she was perfectly secure against any annoyance from France, her only enemy in 1794. The Treaties of Pavia and Pilnitz, to which, it is believed, England early in 1792 acceded, and which certainly laid the groundwork of the conventions and coalitions of the spring of 1793, had produced the effect of uniting in concert with her against France, the powers of Russia, Germany, Prussia, Spain, Portugal, and many of the minor States of Europe. England, then, felt no apprehensions for her own safety, none for the abridgment of her commerce, and seemed to be but little sensible to her interests in cultivating a good understanding with America: her single enemy was confined to his own territories, and threatened even with famine. The United States, in 1794, had not long commenced their existence as a nation, and their new Government might be said to be scarcely more than in a state of experiment. The debts which had been created by the Revolutionary war, we had undertaken the honorable discharge of, and we were then laboring under the immense load; our resources were comparatively small, our embarrassments great, our burdens by no means in a course of alleviation, and our situation totally defenceless; the savages who bordered on our frontiers were numerous, strong, and fierce, and our armies had but recently suffered a dreadful carnage and terrible defeat; we were destitute of manufactories which could supply us with arms, or the means of filling our arsenals; a civilized nation of Europe, then great and powerful, bordered her colonies on our Southern frontier, and disputed with us the navigation of our rivers. Sir, if circumstances could ever sanction a dereliction of right, and a compromitment of interest, those circumstances, then, might be said to exist. Then, indeed, there might have been a semblance of apology, in our infant and crippled state, for leaning, in some measure, on the strength of a nation which was supposed to stand firm. I confess, sir, I would rather, even at that time, have had no treaty, than such a one as was then made; it has set a bad example. But what was our situation in December, 1806—adverting again to circumstances, which are made the test in this case, when the treaty, since rejected, was signed in London? Our strength and population increased to a most envious and flattering degree; our foreign debts discharged, and our domestic one, which we had honorably assumed the payment of, reduced—our credit established abroad, our Treasury overflowing, and our resources flourishing; manufactories of arms were every where reared, and had furnished the nation with the best means of defence; the savages on our frontiers were subdued, or civilized; our Southern frontier was extended and had grown strong: England, instead of her prosperity and powerful combinations of 1793, was left almost single-handed; the subordinate powers of Europe had become a part of France, the great nations were either under her control, or struggling in their last efforts of disastrous conflict: France, instead of being confined to the defence of her own dominion, was carrying on offensive war, and England had been made to tremble for her own existence. What then are the circumstances alleged, to palliate the evils of such a treaty as was offered us? Was England about to be suddenly relieved in an instant from her embarrassments and burdens? How? We are told, indeed, that France had pushed her conquests too far, that her Emperor had so far stretched his arm of conquest, as to leave himself exposed to the most imminent danger at home; was it therefore that England elevated her hopes, and carried her demands? Stuff, sir, fit only for the cook-shops and coffee-houses of London; I should never have expected it to find its way into the semi-official letter which has been read to us, from a character who has deservedly stood high in the rank of politicians. But our own internal situation, threatened with conspiracy, the extent and magnitude of which was unknown, was another reason it has been suggested for hastening the execution of this treaty. How, in December, 1806, accounts so alarming could have reached England of the extent of Burr’s conspiracy, I cannot but be at a loss to conjecture. The alarm at that time here, was not I believe very serious; not such, at least, as would have been a reason with any man in this country to have thrown ourselves into the lap of a foreign nation, or to have made a treaty which compromitted our rights, and left our interests unprovided for. I must say I think too much alarm was felt on this subject, and that it would at least have been as honorable a sentiment towards the people and Government of America, to have entertained an entire confidence in them, that without any great or dangerous effort they were capable of quelling the conspiracies which might be engendered against their peace. I assert that independent of circumstances which I have endeavored to show were more unfavorable as they regarded the United States, and far more favorable as they regarded England in 1794, than in December, 1806, the treaty of the latter date is worse than that of the former. The former did provide redress in some sort for previous injuries. That of the latter date contains no provisions for any kind of redress or compensation, which was due to us, for the very many spoliations which had been committed on our commerce—it offers no alleviation to the evils of the former—is silent as to the injuries and insults which we had sustained in our waters; totally, sir, although these were subjects of special instruction from our Government, and although we were told by our embassy that a treaty was concluded on the different points of commercial interest. Was it forgotten, sir, to what an immense amount America had suffered under the different orders of the King in council, even from the very date of the former agreement for reparation? Were not our losses under the orders particularly of 1798, which gave rise to so much of the havoc our neutral commerce had groaned under, and which placed the nations of Europe in a better situation than the United States in the conveyance of colonial produce, known to our Ministers? It must have been recollected, for it was enforced in their instructions, how our vessels had been incessantly sent into the ports of Britain and her colonies for adjudication, and the unjust condemnations which had taken place, under the construction of those orders. It must have been recollected how far in the first instance the orders themselves had gone towards the subversion of the laws of nations. The time was, indeed, when a great jurist, Lord Mansfield, had declared, that neither the orders of the King in council nor even an act of Parliament which contravened the law of nations was binding on any one; this was said in the case of the Silesia loan, but those days were past. Sir William Scott has since told us, that the text of the instructions are his guide, and King George the Third is thus, by his single voice, to make and expound the law, which is adjudged to be paramount in modern times to the laws of nations. The adjudications, it is a well-known fact, have been in conformity to the Royal will, stimulated alone by the shipping interests of England; principles of adjudication have been established in the British Courts of Admiralty, which had on the most unjust pretensions wrested from our citizens many millions of their property. Why by this treaty give up our claims to reparation, as they were most emphatically, by signing a treaty which yielded no redress for them while the claims were still unsatisfied; by making a compact which wholly pretermitted them? It is said, sir, that the disputes respecting the colonial trade are adjusted by this treaty. How—by agreeing to a duty on exports? Where was our constitution, now so strongly pressed in discussion, when this stipulation was made; when it was solemnly covenanted, that we should directly invade one of its provisions by laying an export duty? And that, in addition to the deduction on drawbacks allowed by law, an export duty of one, two, or three per cent. should be imposed on colonial articles? Why make the extraordinary and vain stipulation too, contained in the fifth article, that we should have a right to lay the same export duty which England should have a right to impose, if we could lay none by our constitution?
The subject of blockades also, sir, was one on which some stipulation was made absolutely necessary, by the novel doctrines lately asserted, and insisted on by the nations of Europe; it was important that their extent should in some way have been defined, their nature described, when a blockade should be said to exist, and that it should not be a question left entirely to the discretion or interest of a belligerent, or the caprice of her officers. This single question had already led us at different times to the very brink of war with England. In June, 1793, she asserted all France to be in a state of blockade, and ordered our vessels to be captured which should attempt to enter any of her ports with our produce. France had in May of the same year issued an inhibitory order against our trade, of a nature but little less hostile, in consequence, as it was said, of the Russian convention made in London, I think in March of the same year. In the fall of 1793, the British had issued secret orders on the same principle of blockade, which entrapped our West India commerce, to an immense amount, before they were known by us to be in existence; this it was said was a principal reason for the proposition contained in a bill for prohibiting all intercourse with England, which had in the early part of 1794 received the sanction of the House of Representatives, and was rejected in the Senate but by the majority of one vote, and which was succeeded by Mr. Jay’s mission. To the same class, too, may be assigned the British orders of May 1795, against our vessels laden with provisions, which brought President Washington to a stand on the British Treaty, and caused him, it is said, to demand a previous explanation, which was at that time I presume, satisfactorily made, but which has been since in innumerable instances violated, and the same vague and undefined principles of blockade enforced; at one time by declaring a blockade to exist from Brest to the river Elbe, at others by proclamations of blockade equally extravagant, and more than once by the declaration of the British naval commanders, that a whole kingdom should be cut off, at a stroke of the pen, from all the trade of neutral nations. But, sir, if the general and extensive evils which the new doctrine of blockades had superinduced, were not of sufficient importance to claim a stipulation against their exercise in future, there was one species of injury which seemed really to merit, and to claim indispensably, some notice either by redress or stipulation against its future practice. I know not how to class it; it may be assimilated to a modern blockade, inasmuch as it assumes a jurisdiction wholly ideal; I mean that which was a particular subject of complaint, from the assumption made of a right by a British naval officer in the port of New York, in claiming jurisdiction and the exercise of the right of impressment, and of course every one less inimical to natural right, within the distance of the buoys from his ship. To this assertion of authority I see no disclaimer in this applauded treaty, or any hint at redress for the injury inflicted by the particular occasion on which it was exercised. If this new claim of naval sovereignty is insisted on, or thus tacitly permitted, it is time it should be so understood; for with the same propriety with which the British commander in New York claimed jurisdiction within his buoys, another might claim British jurisdiction from Boston to Charleston, if he could so far stretch a cable.