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effect by all such means and provisions, as are peculiarly within the province and the competency of the house of representatives to supply. This, sir, is the substance of the point immediately in question: but it will, in examining it, be proper to keep constantly in view another proposition which was made yesterday, by the gentleman from Pennsylvania,* and referred to the committee, and which will be taken up of course, if the immediate question shall be decided in the negative.
Sir, if the proposition for carrying the treaty into effect be agreed to by the house, it must necessarily be upon some one or other of the three following considerations : that the legislature is bound by a constitutional necessity to pass the requisite laws, without examining the treaty or considering its merits—or, that on due examination, the treaty is deemed to be in itself a good one-or that, apart from these considerations, there shall appear extraneous reasons of sufficient weight to induce the house to carry the treaty into effect, even though it be in itself a bad treaty. The first of these considerations, however, is now completely excluded by the late decision of the house, that they have a right to judge of the expediency or inexpediency of passing laws relative to treaties; the question then first to be examined by the committee, is that which relates to the merits of the present treaty.. I will now, therefore, proceed to discuss those merits, and to present them to the committee under three different aspects. The first, as it relates to the execui tion of the treaty of peace, made in the year 1783. The second, as it bears upon and determines the several points in the law of nations connected with it. And the third, as it infringes upon, and may be supposed to affect the commercial intercourse of the two nations.
* Mr. Maclay, who moved a resolution that it is not expedient at this time to concur in passing the laws necessary for carrying the said treaty into effect."
Sir, in animadverting upon the first of these, I will not take upon me the invidious office of inquiring, which party it is to whom the censure may justly be ascribed of having more than the other contributed to the delay of its execution, though I am far from entertaining any desire to shrink from the task, under an apprehension that the result might be disadvantageous to this country. The present treaty has itself, in express terms, waved this inquiry, and professes, that its purpose is to adjust all controversies on the subjects of which it is conversant, without regard to the mutual complaints or pretensions of the parties. Naturally, therefore, and most justly it was to be expected, that the arrangements for carrying that treaty into effect, would have been founded on the most exact, scrupulous and equitable reciprocity. But has this been the case, sir? I venture to say that it has not, and it grieves me to add, what nevertheless truth and justice compel me to declare, that, on the contrary, the arrangements were founded on the grossest violation of this principle. This, sir, is undoubtedly strong language, and as such I should be one of the last men living to give it utterance, if I were not supported in it by facts no less strong and unequivocal. There are two articles in the old treaty, for the execution of which, no provision whatsoever is made in the new one. The first is that which relates to the restitution of, or compensation for, the negroes and other property carried away by the British. The second, that which provides for the surrender to the United States of the posts, so long withheld by them, on our territory. The article that remains unexecuted on the part of the United States, is that which stipulates for the payment of all bona fide debts owing to British creditors; and the present treaty guarantees the carrying of this article into the most complete effect by the United States, together with all damages sustained by the delay, even to the most rigid extent of exaction, while it contains no stipulation whatever, on the part of Great Britain, for the faithful performance
of the articles left unexecuted by her. Look to the treaty, sir, and you will find nothing like it, nothing allusive to it. No, on the contrary, she is entirely and formally absolved from her obligation to fulfil that article, which relates to the negroes, and is discharged from making any compensation whatsoever for her having delayed to fulfil that, which provides for the surrender of the posts.
I am aware, sir, of its being urged in apology, or by way of extenuation for these very unequal stipulations, that the injury which may possibly be sustained by us in consequence of the detention of the posts by the British government, is not susceptible of an accurate valuation; that between such an injury and money there is no common measure, and that therefore, the wrong is incapable of liquidation, and affords no fair basis for à calculation of pecuniary damages. This apology, sir, may appear plausible, but it is by no means satisfactory. Commissioners might easily have been appointed, (as they are, vested too with full discretion, for other purposes,) to take charge of this subject, with instructions to do what they could, if unable to do what they ought, and if incapable of effecting positive justice, at least to mitigate the injustice of doing nothing
For the very extraordinary abandonment of the compensation due for the negroes and other property carried off by the British, apologies have also been lamely attempted; and these apologies demand consideration. It is said to be at least doubtful whether this claim is authorized by the seventh article of the treaty of peace, and that Great Britain has uniformly denied the meaning put by the United States on that article. In reply to these assertions, it is sufficient for me to remark, that so far from its being true, that Great Britain has uniformly denied the American construction of this article, it is susceptible of positive proof, that till very lately, Great Britain has uniformly
admitted our construction of it, and that she has rejected the claim on no other ground than the alleged violation of the fourth article on the part of the United States. But on the supposition that it had been true, that Great Britain had uniformly asserted a different construction of the article, and refused to accede to ours, I beg leave to ask the house what ought to have been done ? Ought we to have acceded at once to her construction? You will anticipate me, sir, in saying, assuredly not. Each party had an equal right to interpret the compact; and if they could not agree, they ought to have done in this, what they did in other cases, where they could not agree; that is, have referred the settlement of the meaning of the compact to arbitration: but, for us to give up the claim altogether because the other party to the compact thought proper to disallow our construction of it, was in effect to admit nothing less than that Great Britain had a better right than the United States to explain the point in controversy, or that the United States had done something which in justice called for a sacrifice of one of their essential rights.
From this view of the subject, sir, I consider it to be evident, that the arrangements in this treaty which relate to the treaty of peace of 1783, are in several instances deficient both in justice and reciprocity. And here a circumstance occurs, that in my opinion deserves the very particular attention of the committee. From the face of the treaty generally, and particularly from the order of the articles, it would seem that the compensation for the spoliations on our trade have been combined with the execution of the treaty
peace, and may therefore have been viewed as a substitute for the equivalent stipulated for the negroes. If this be really the meaning of the instrument, it cannot be the less obnoxious to reasonable and fair judges. No man can be more firmly convinced than I'myself am, of the perfect jus
tice on which the claims of the merchants on Great Britain are founded, nor can any one be more desirous to see them fully indemnified. But surely, sir, it will not be asserted that compensation to them is a just substitute for the compensation due to others. It is impossible that any claims can be better founded than those of the sufferers under the seventh article of the treaty of peace; because they are supported by positive and acknowledged stipulation, as well as by equity and right. Just and undeniable as the claims of the merchants may be, and certainly are, the United States cannot be obliged to take more care of them than of the claims equally just and unquestionable of other citizens; much less to sacrifice the latter to the former. To set this matter in a light, that will exhibit it in the clearest and most familiar way possible to the understanding and the bosom of every member in this house, I will invert the case. Let us suppose for a moment, that instead of relinquishing the claims for property wrongfully carried off at the close of the war, and obtaining stipulations in favor of the mercantile claims, the mercantile claims had been relinquished, and the other claims provided for-I ask, would not the complaints of the merchants have been as univer-. sal and as loud as they would have been just ?
Sir, besides the omissions in favor of Great Britain, which I have already pointed out, as particularly connected with the execution of the treaty of peace, the committee will perceive, that there are conditions annexed to the partial execution of it in the surrender of the western posts, which increase the general inequality of this part of the treaty, and essentially affect the value of those objects. I beseech the committee to examine the point with the attention, a subject of so very important a character demands.
The value of the posts to the United States is to be estimated by the influence of those posts: first, on the trade with the Indians, and secondly, on the temper and conduct of the Indians to the United States..