THAT public ſervants, my fellow-citizens, owe thoſe who employ them an exact account of whatever they do in diſcharge of their truſt, has always appeared to me a truth equally clear and important. This truſt, from its very nature and its objects, muſt be exerciſed according 〈◊〉 the diſcretion of the agent. He is appointed for that very purpoſe; appointed to enquire, gain information, deliberate, and decide on public meaſures, according to what he may conſider as the beſt intereſt of his conſtituents and the community. But tho' they give him the power of acting for them, they retain the right of judging whether he has exerted that power with prudence and fidelity; of continuing or withdrawing their confidence, as he may appear to have merited approbation or become juſtly liable to cenſure.

It is therefore the duty of every repreſentative to give his conſtituents a faithful account not only of what he has done upon every important occaſion, but of the reaſons and motives which have influenced his conduct, that they may be enabled to judge whether that conduct and thoſe motives are ſuch as they ought to approve, and to decide at a future election, whether they ought to continue or alter their choice.

Under the influence of this perſuaſion, fellow-citizens, I have thought it incumbent on me to addreſs you on the ſubject of the treaty with Great-Britain—a ſubject which has produced a ſtronger and a more univerſal impreſſion on the public mind than any that has occurred ſince I received your appointment, to tell you the means I have uſed to form a right judgment, the deciſion I have at length made, and the reaſons on which 〈◊〉 i • founded.

And here let me declare that if I could conſider this treaty as "degrading to the National honour, dangerous to the political exiſtence, and deſtructive of the Agricultural, Manufacturing, Commercial, and Shipping intereſts of the people of the United States"Charleſton Advertiſement, City Gazette, July 14th, 1795. . Could I conſider it as "proſtituting the deareſt rights of freemen and laying them proſtrate at the feet of Royalty"Chief Juſtice Rutledge's Speech, City Gazette, July 17th, 1795. . Could I conſider it as "a proſtitution of the Sovereignty of the United States, and a wanton ſacrifice of the rights of this free nation"Savannah Reſolutions.. Could I conſider it "inſulting to the dignity, injurious to the intereſts, dangerous to the ſecurity, and repugnant to the Conſtitution of the United States"Richmond Reſolutions.. If I could conſider it as containing "conceſſions incompatible with the object of the embaſſy, derogatory to the honour and injurious to the intereſts of America, and openly and pointedly hoſtile to the cauſe of France"Peterſburg Reſolutions.. If I could conſider it as "highly injurious to the commercial intereſts of the United States, derogatory to their National honor and Independence, and dangerous to the peace and happineſs of their citizens"Boſton Reſolutions.—If I could conſider it as pregnant with "many evils that threaten our ruin"Portſmouth (N. H.) Reſolutions.—If I could conſider it as "injurious to the Agriculture, Manufactures and Commerce of the United States, derogatory from their national honour, and 〈◊〉 to their welfare peace and proſperity"New-York Reſolutions.— 〈◊〉 inconſider it "as invading the conſtitution and legiſlative authority of the country; as abandoning their important and well founded claims againſt the Britiſh Government: as impoſing unjuſt and impolitic reſtraints on their commerce; as injurious to their agriculture: as conceding without an equivalent, important advantages to Great-Britain; as hoſtile and ungrateful to France; as committing our peace with that great Republic; as unequal in every reſpect to America, as hazarding her internal peace and proſperity; and as derogatory from her ſovereignty and independence"New-York Reſolutions.—Could I believe that it "in effect admits another government to controul the legiſlative functions of the Union"Philadelphia Memorial.—Could I believe it "degrading to the national honour, dangerous to the public intereſt, and deſtructive to the agricultural and commercial views of the United States"Trenton Reſolutions.—Could I, after ſober reflection and a careful inveſtigation of the ſubject, regard this act of our government in theſe hideous and formidable points of view; did that cool and deliberate conſideration of which every important public act ought to be the reſult, preſent it to my mind in theſe fearful and horrid colours: I have no heſitation in declaring that I ſhould think it my indiſpenſible duty to lift up my voice againſt it in Congreſs, to ſtruggle to the laſt againſt its going into operation; and if all theſe means ſhould be found ineffectual, to return among you, ſound the alarm, and join you in a reſort to the laſt expedients for preventing the execution of a contract which was to place the legiſlative functions of the Union, under the controul of a foreign government, and end in "proſtituting the deareſt rights of freemen, and laying them proſtrate at the feet of Royalty."

But, fellow-citizens, let me aſk you, and let me appeal to your calm diſpaſſionate judgment for an anſwer, let me aſk you can theſe frightful events, theſe deſtructive conſequences, 〈◊〉 juſtly apprehended from a treaty the whole commercial part o •• which is to expire at the end of twelve years, and may be terminated by ourſelves within two years after the cloſe of 〈◊〉 ſent war? Can any poſſible operation of a treaty, admittion to be a diſadvantageous, an unwiſe one, ſo ſoon deſtroy, ſo ſpeedily ruin, or even in ſo ſhort a period materially injure the agriculture, the manufactures, the commerce of America, which during the preſent univerſal ſhock in Europe, and under the depredations of all parties, have flouriſhed and encreaſed beyond all former example? I confeſs I cannot conceive it.

Let me further aſk you, fellow citizens, what reaſons there are to believe that Mr. Jay would conclude, major Pinckney approve, two thirds of the Senate ſanction, and the Preſident finally ratify a treaty "degrading to the national honour, and dangerous to the political exiſtence of the United States,"—a treaty containing "a proſtitution of their ſovereignty, and a wanton ſacrifice of their rights."—a treaty which "admits another government to controul the legiſlative functions of the Union," "proſtitutes the deareſt rights of freemen, and lays them proſtrate at the feet of royalty?"

Mr. Jay had a reputation to ſupport, a reputation gained by a long and active public life; would he blaſt it at once? He has a family growing up around him: would he throw a gloom over all their opening proſpects, and nip the bud of their proſperity by an act which muſt involve himſelf and them in one common diſgrace? He held a diſtinguiſhed office from which the voice of his country might remove him; would he raiſe the voice of that country againſt him, by "proſtituting its ſovereignty, and making a wanton ſacrifice of its rights?" At the time when he agreed to this treaty, at the time when he diſpatched it to the United States, at the time when, without unforeſeen and accidental delays, it muſt have arrived and been made public, at that time he was a candidate for an high office in his own State, to which he could be raiſed only by the approbation of his fellow citizens at large; would he enſure their diſapprobation by betraying their deareſt intereſts? He was oppoſed by a numerous and powerful party, by a popular and reſpectable competitor; would he furniſh this oppoſition with irreſiſtable arms againſt himſelf, by an act which muſt have drawn on him the public execration? He is ſaid to be a candidate for the higheſt truſt his country can beſtow, a candidate in oppoſition to men diſtinguiſhed throughout Europe as well as America, for their talents and their virtues: would he forever blaſt whatever proſpects he may have by agreeing to "admit another government to controul the legiſlative functions of his country?" No, 〈◊〉 citizens! The ſtations which Mr. Jay has filled, the long period for which he has enjoyed a ſpotleſs reputation and poſſeſſed the confidence of his country, argue at leaſt, a common portion of talents and integrity; and a man muſt be depraved and fooliſh to an unuſual degree, who, ſituated as Mr. Jay was, could conſent to ſo attrocious an act as the treaty is repreſented; could conſent to "degrade the national honour, endanger the political exiſtence, and deſtroy the agricultural, manufacturing, commercial, and ſhipping intereſts" of his country: fooliſh if he could conſent to it without ſeeing its tendency, and both fooliſh and depraved if he ſaw it and yet conſented.

But if Mr. Jay was corrupted by the Britiſh court, as a perſon in Charleſton has thought proper to inſinuate;Mr. Charles Pinckney's ſpeech. The expreſſion is, "to oppoſe him (Mr. Jay) ſingly, at their own court, to the talents, experience, and perhaps temptations, of their ableſt ſtateſmen." if, as is alledged, "his diſlike to the French" and "his partiality for Britiſh government and meaſures" be ſo great that "the Britiſh miniſter was ſure of his acquieſcence in every demand,"Ibid. If he was of a diſpoſition to "barter away the rights of his country, to ſacrifice the intereſts of the weſtern territory, and diſſever it from the Union,"Ibid. If he was inclined to make "an eaſy and ready conceſſion to the Britiſh of every privilege they could think of inſerting,"Ibid. If he was willing to make "an infamous and degrading ſurrender of the rights and character of his country," and has "attempted to impoſe ignominious ſhackles"Ibid. upon it: If we ſhould believe all this of Mr. Jay upon the aſſertion of perſons, who, to ſay the leaſt of them, have given no greater proofs than he has of ability or virtue, what ſhall we ſay of major Pinckney? Are we to include him in this charge of folly and wickedneſs? He was on the ſpot during the whole negociation, and for many months preceding it; he had frequently communicated with the Britiſh court on the ſubject, he knew their jealouſy, haughtineſs, and obſtinacy; he was conſulted by Mr. Jay in every ſtage of the negociation, and gave his moſt decided approbation of the treaty. In a letter to the Secretary of State dated, London, Nov. 16th 1794, he ſays, "Mr. Jay communicated freely with me upon this ſubject during the courſe of the negociation, and I have witneſſed the great difficulties which have occurred in adjuſting ſeveral of the articles. Although ſome points might have been arrang •• more benefically for us if the treaty had been dictated entire •• by the United States, yet when it is conſidered as a compoſition of differences where mutual complaints had rendered mutual conceſſions neceſſary to eſtabliſh a good underſtanding, I think it may fairly be ſaid that as little has been conceded by Mr. Jay, and as much obtained for the United States, as all circumſtances conſidered, could be expected. The buſineſs upon the whole has been concluded more beneficially for us, than I had any hope we could obtain by negociation ſix months ago, and in my opinion places us in a more advantageous ſituation than we ſhould have been by becoming parties to the war." This opinion, fellow citizens, I confeſs had great weight with me. You all know major Pinckney, you know his modeſt worth, his retiring virtue, his diſintereſtedneſs, his unaſſuming firmneſs of character, his ſolid judgment, his conſcientious attention to the diſcharge of every public and private duty. You have ſeen him act in all the various ſtations of civil life, and many of you have ſeen him bleed at your ſides in defence of the rights and liberties of America. Can you conceive that he has given his ſanction to an inſtrument by which thoſe rights and liberties are to be laid proſtrate at the feet of royalty; by which our national honour is to be degraded, our independence deſtroyed; our public proſperity ruined or endangered, and the legiſlative functions of our country ſubjected to the controul of a foreign government? Could he be ſo deceived in the nature of that inſtrument as to think it advantageous to America, if it were in f •• t ſubverſive of our rights, liberties, conſtitution, and happineſs?

But if Mr. Jay and major Pinckney be intitled to no confidence, if we conclude that they were impoſed on or corrupted, is no regard due to the opinion of two thirds of the Senate, acting on oath and in diſcharge of the high truſt which their fellow citizens have repoſed in them? Theſe men have been ſelected from various parts of the Union for thoſe qualities which entitle citizens in a free government, to public confidence. Their intereſts are involved with the intereſts of the community. Their promotion depends on the approbation of their fellow citizens. Many of them are old and tried ſervants who have grown grey in the public councils of their country, and whoſe wiſdom and integrity have hitherto been highly valued. I know many of them perſonally, and I know no men of more accurate or extenſive information, than are to be found among them, no men more reſpectable for their talents or their virtues. Why ſhould ſuch men betray their truſt? What temptation have they to prove unfaithful to a country whoſe confidence they poſſeſs? They enjoyed the beſt means of information; they poſſeſs a good capacity of judging; they beſtowed a long and 〈◊〉 conſiderations on the ſubject, and why ſhould 〈◊〉 conclude that they have decided unwiſely? Have we better means of information? Have we more wiſdom than they? Or have we given the buſineſs a more mature, a more attentive inveſtigation? Have we given more proofs than they of wiſdom and integrity, that we ſhould harſhly and poſitively pronounce their act to be "a proſtitution of the deareſt rights of their country at the feet of royalty?"

But if the perfidy or folly of two thirds of the Senate have been added to that of Mr. Jay and major Pinckney, can we derive no ſecurity from the integrity of Gen. Waſhington; from his prudence, his long tried patriotiſm, his ſound underſtanding, his cautious deliberating character, from his extenſive means of information, from the long conſideration which his ſituation has enabled him to beſtow on this ſubject? Theſe qualities were once thought to intitle him to public confidence; how has this title been forfeited? Has it been by the firmneſs and wiſdom with which, a thing unexampled in other countries and other times, he ſuppreſſed a formidable inſurrection without ſhedding one drop of blood? Has it been by the ſingular mixture of prudence and fortitude wherewith he has preſerved to this young and riſing country all the bleſſings of peace and unexampled proſperity, amidſt the deſtructive fury of that tempeſt by which Europe and the Weſt-Indies have been afflicted and torn? Is it becauſe we have dwelt ſafely under his adminiſtration, and there have been none to make us afraid? Is it becauſe our credit has been reſtored, our agriculture doubled, our commerce, manufactures, and ſhipping encreaſed nearly three-fold during the ſhort period for which he has preſided over our government, that we ought now to withdraw from him our confidence; now to ſuppoſe that he would ratify a treaty by which "our deareſt rights would be laid proſtrate at the feet of royalty"? Is it the magnanimity wherewith he was foremoſt in acknowledging the French Republic,This is a fact. Our government was the firſt to acknowledge the French Republic. while every power in Europe was leagued againſt it, or ſtood aloof, from which we are to conclude that he would enter into a compact "hoſtile and ungrateful to France"?

If miſchiefs of this kind really lurked in this treaty, is it conceivable that they could eſcape the Preſident's knowledge and attention? He has hitherto been conſidered as prudent and cautions. He had the beſt poſſible means of information on this ſubject. He was apprized of every ſtep that was taken, knew the whole courſe of the negociation, and underſtood well the ſubſtance of the treaty before it was concluded. He 〈◊〉 the inſtrument in his poſſeſſion from the time of its arrival in this country, early in March, until he finally ratified it ſ ••• 〈◊〉 in July. During this whole period it was under his conſideration, aided by the advice of every man in the United States whom he thought it neceſſary to conſult, furniſhed with all the information, from every quarter, that was requiſite for enlightening and guiding his own underſtanding, he at length decided. And is no reſpect due to ſuch a deciſion? I confeſs, fellow citizens, I cannot think ſo. Were I diſpoſed to differ from it, I ſhould ſtill imagine that with ſuch an authority oppoſed to me, I might probably be in the wrong. I ſhould hold it neceſſary, before I pronounced poſitively that this deciſion was wicked or fooliſh, to aſk myſelf whether I had given more evidences of wiſdom, virtue, and patriotiſm than General Waſhington; whether I had paſſed through more or ſeverer trials; whether I had poſſeſſed more ample means of information on this ſubject than he, or beſtowed on it a longer, a more 〈◊〉 examination? And finally, whether I ought, on a ſhort inveſtigation of my own, or a ſtill ſhorter one of others, to reject this deciſion, ſupported by the talents and knowledge of two thirds of the Senate, by thoſe qualities of Mr. Jay which have gained him ſuch high and repeated teſtimonies of public confidence, and by the prudence, the ſound diſcretion, the knowledge, and the tried patriotiſm of major Pinckney?

Theſe conſiderations inclined me to think favourably of the treaty before I had given it that attentive and thorough conſideration which ought to precede every deciſion on important public meaſures. But I knew that it was my duty to how implicitly to no authority, however weighty, but to judge and act for myſelf. I knew that you had ſent me to form opinions of my own, not to adopt thoſe of other perſons, however reſpectable. I therefore reſolved to ſpare no pains for underſtanding the ſubject, and forming a right judgment about it. For this purpoſe I converſed, as far as I had opportunity, both with the friends of the treaty, and its oppoſers. I carefully weighed all their objections. I read attentively every thing that was written in favour of it and againſt it. I gained all the information in my power, and from the moſt reſpectable ſources, reſpecting thoſe branches of our commerce which it affects. I took the treaty itſelf with me on my journey, as well as the publications reſpecting it, which from time to time appeared. I faithfully and repeatedly ſtudied it, recurred to it on every occaſion, and carefully compared it with our other treaties, with the laws of nations, and with our own conſtitution.

From the time when the treaty was publiſhed, till the preſent moment, more than five months, this has been my chief occupation.

The reſult, fellow citizens, of this examination, which I am hold to declare has been a fa • thful, a laborious, and an impartial one, is a firm and complete perſuaſion that the treaty, ſituated as we were, was proper and expedient; that, to uſe the words of major Pinckney, "as little has been conceded by the United States, and as much gained for them as, all circumſtances conſidered, could be expected: That the buſineſs has been concluded more beneficially for us than there was reaſon to hope could be obtained by negociation, ſome months before; and that it places us in a more advantageous ſituation than we ſhould have been in by becoming parties to the war."

The caſe between us and Great Britain, at the time when Mr. Jay was ſent, ſtood thus:

We charged Great Britain with having, greatly to our detriment, retained the weſtern poſts which ſhe was bound by the treaty of peace to give up; with having carried away from New York, at the evacuation of it, a great number of negroes, the property of American citizens, contrary to the expreſs ſtipulations of that treaty; and with having given orders, during the preſent war, for the capture of a great number of our veſſels, contrary to the law of nations and the rights of neutrality.

Great Britain, on her part, alledged, that we had committed the firſt infraction of the treaty of peace, by permitting legal impediments to the recovery of Britiſh debts, contrary to the fourth article, and that ſhe retained the poſts as a pledge for our performance of that article; ſhe denied that the negroes carried away from New-York were American property at the time of ſigning the treaty, having been made lawful prize by her army during the war. And as to the captures made on us in the preſent war, ſhe pretended that they were authorized by the law of nations.

In this ſtate of things there were but three poſſible courſes for us to take. Firſt, To ſubmit quietly to the continuation and repetition of the injuries. Secondly, To purſue redreſs by meaſures of compulſion: Or thirdly, To ſeek it by meaſures of negociation.

To remain as we were, to ſit down quietly under the injuries of which we complained, would have been not only daſtardly and diſhonourable, but unwiſe in the extreme; for experience proves, that among nations as well as individuals, to ſubmit tamely to injuries is to invite a repetition of them; and our government muſt have relinquiſhed all claim to the reſpect of foreigners and the confidence of its own citizens, had it ſuffered important parts of our territory to be withheld, and extenſive depredations to be made on our property, without taking any ſteps to aſſert and vindicate its rights. To ſeek effectual and honourable redreſs then, in ſome mode or other, was clearly indiſpenſable. The choice was between meaſures of compulſion and meaſures of negociation.

Compulſory meaſures were of four kinds: Firſt, war—ſecondly, commercial reſtrictions—thirdly, prohibition of intercourſe—and fourthly, ſequeſtration of debts and ſtock in our banks and funds.

War had but few open advocates, and probably not a very great number of ſecret ones. The public reſentment was at one period inflamed to ſuch a degree by the depredations of the Britiſh that great numbers felt ſtrongly diſpoſed to the moſt hoſtile meaſures; but when they reflected on the ſtate of total un-preparation in which we were, without a frigate at ſea, or a regiment on foot, more than was neceſſary for the Indian war, our harbours unfortified, our arſenals and magazines unfurniſhed, and five hundred thouſand tons of ſhipping afloat with cargoes of immenſe value: when they reflected on the uncertain event of war, and the certain miſchiefs by which it is attended; the immenſe expence, the vaſt accummulation of debt, the increaſe of taxation, the deſtruction of property, the ſuſpenſion of induſtry, the loſs of revenue, and the total derangement of our finances; when they maturely weighed all theſe conſiderations, they regarded war as the greateſt of evils, to be ſubmitted to only in the laſt reſort, only when every other expedient had be • n fairly tried without ſucceſs.

The caſe, however, was different with reſpect to commercial reſtrictions. They found ſupport in the firſt talents and reputation of our country, and became a favorite object with very conſiderable numbers. It was conceived that by laying heavy burdens on the Britiſh commerce, on their ſhipping in our ports and their commodities in our country, their government might be brought to a temper more amicable or more juſt towards us, might be compelled to make us reparation for the paſt, and to refrain from future injuries. But it was obſerved, on the other ſide, that theſe reſtrictions would probably widen the breach between us and Britain inſtead of cloſing it; would irritate rather than heal the wound; would provoke them to further acts of injuſtice, not entice them to a conduct more equitable and friendly: that the reſtrictions would be hurtful to ourſelves as well as the Britiſh, and perhaps in an equal, or even a greater degree; that they would probably lay on our commerce counter reſtrictions, whereby we ſhould ſoon be engaged in a war of commercial reſtrictions with them, in which it might happen that they would hold out longeſt. In fine, it was conſidered, that this mode of compulſion would be attended by great and certain inconveniences, that its ſucceſs would be very doubtful, and that, if unſucceſsful, it could not fail to prove highly miſchievous.—The plan of commercial reſtrictions was therefore rejected.

It was next propoſed to ſuſpend all commercial intercourſe with Great Britain, to receive none of her commodities in our ports, and to ſend her none of our own. The ſupporters of this plan ſuppoſed our commerce to be of ſuch importance to Great-Britain, that ſooner than loſe it, even for a time, ſhe would come to our own terms. But here again it was objected, that the inconveniences of this meaſure were great and certain, its ſucceſs doubtful; that it would injure us extremely, as well as the Britiſh; that they could, and in all probability would, do without our commerce quite as long as we ſhould find it convenient to do without theirs; and that if their government ſhould happen to be obſtinate, an event extremely probable, conſidering its arrogance and pride, we ſhould be obliged at laſt to give up the meaſure, and recur to other means, after having uſeleſsly embarraſſed our trade and deranged one of its moſt conſiderable branches.

Theſe propoſitions therefore of a commercial war, of reſtrictions and prohibitions as means of compulſion, were rejected, and, as it appears to me, upon unanſwerable reaſons.

The laſt compulſory expedient propoſed was ſequeſtration. Debts to a very great amount are known to be due in our country to the ſubjects of Great Britain; and they are ſuppoſed alſo to poſſeſs property to a conſiderable extent in our banks and public funds. It was ſuppoſed that by ſeizing on theſe debts and this property, and ſubjecting them to ſequeſtration, we might ſo embarraſs the Britiſh government as ſpeedily to bring it to terms; or at any rate, that the ſequeſtered effects would ſerve as a fund out of which our loſſes by her violent acts might be indemnified.

But it was objected, in the firſt place, that to infringe the ſecurity of private property would be a very unwiſe meaſure, as it reſpected ourſelves: that it would greatly leſſen the confidence repoſed at preſent by foreigners in the good faith of our government; prevent the extenſion, if not put an end to the exiſtence, of that commercial credit by which the want of capital in this young country, has hitherto been ſupplied, and ſuch immenſe advantages given to our commerce, our agriculture, and our infant manufactures; and that in proportion as debts were leſs ſecure, all that we borrowed or bought on credit muſt be borrowed at an higher intereſt or bought at a greater price, the injuries ariſing from which would ſoon be much greater than thoſe for which theſe meaſures were intended as a remedy.

It was urged, in the ſecond place, that ſo violent a meaſure as the ſequeſtration of debts and property in funds, could hardly fail to be immediately introductive of an open rupture; that we could hardly expect the Britiſh government to ſubmit to it without reprizals; and as we have little or no property of that kind in their reach, their mode of repriſals would probably be to iſſue lettres of marque and privateer commiſſions againſt our commerce; in which caſe we muſt either negociate, wherefore our ſituation would be far more unfavourable than before, or have recourſe to lettres of marque and privateers on our ſide, and thus be immediately involved in a war, for which we were totally unprepared, and which could not fail to he productive of the greateſt injury, beſide being moſt uncertain in its event. This meaſure alſo was therefore given up; and it was reſolved to make an effort for obtaining redreſs by means of negociation, and, in the mean time, to prepare vigorouſly for the worſt, in order that, if this effort ſhould fail, we might be in a condition to adopt and purſue, with effect, ſuch meaſures of compulſion as the circumſtances of the caſe might render unavoidable. By this expedient it was conceived that we ſhould not only gain time for preparation, which was abſolutely neceſſary, but give ourſelves the opportunity of profiting by that favourable change of circumſtances in Europe which the enthuſiaſtic valour of the French, their wife meaſures, and unheard of exertions, joined to the diviſions and folly conſpicuous in the councils of their enemies, rendered extremely probable.

This ſyſtem of conduct being agreed on, it being reſolved to adopt meaſures of negociation in the firſt place, and reſerve meaſures of compulſion for the laſt reſort, the next queſtion was as to the mode of negociating. It was thought that an embaſſy extraordinary was preferable, that being the cuſtomary mode in caſes of unuſual importance, and carrying with it ſtronger indications of a determina • ion on the part of our government, to purſue its object with the utmoſt firmneſs and 〈◊〉 . Mr. Jay, at that time chief juſtice of the United States, was nominated by the Preſident for this purpoſe, and approved by the Senate.

Objections both perſonal and conſtitutional, have been made to Mr. Jay. He has been ſaid to be prepoſſeſſed in favour of Britain, and an avowed e ••• y to France. If this had been true it would ſurely have been a ſufficient reaſon for rejecting him; but it is not true. I can contradict it, and do ſo, on my own knowledge. I have heard Mr. Jay expreſs in public and private, and thoſe who have been much more and much longer acquainted with him, aſſure me that he always has expreſſed the utmoſt pleaſure in the French revolution, and the warmeſt wiſhes for its ſucceſs, the greateſt diſlike of the former government, and ſentiments of the higheſt eſteem and regard for the nation. Mr. Jay indeed thought that the conduct of a late French miniſter was exceedingly improper, that he was endeavouring to gain and undue influence over the government, and involve the country in confuſion: but Mr. Jefferſon alſo thought ſo, as his letter on that ſubject to our miniſter at Paris fully proves, and Mr. Jefferſon was never thought to hate the French, though like Mr. Jay and numberleſs others of our beſt and wiſeſt citizens, he thought that our government ought not to be ſubject to the controul, or inſults of their miniſter. So Mr. Jay has given it as his opinion, as chief juſtice of the United States, that intereſt ought to be paid on Britiſh debts during the war. This is not my opinion, but I know that it is the opinion of ſeveral other judges of the ſupreme court, if not all, and of a great number of our ſoundeſt and moſt eminent lawyers. Was it ever heard before that becauſe a judge decided againſt one party and in favour of the other, he was an enemy to the former or a friend to the latter? Mr. Jay, as ſecretary for foreign affairs, gave it as his opinion, it is ſaid, that we had made infractions of the treaty as well as Great Britain. The fact is notoriouſly ſo. We agreed not to impede the recovery of juſt debts, and we did impede it in various inhances. Such are the proofs of Mr. Jay's hatred to France and partiality to Great Britain. But if he were ever ſo partial to one and inimical to the other, what has that to do with the treaty? Muſt it ſtand or fall by its own merits or demerits, or by thoſe of the negociator?

It is alſo ſaid that it was contrary to the conſtitution to beſtow this appointment on Mr. Jay, while chief juſtice of the United States. If the Preſident in this inſtance wilfully infringed the conſtitution, let thoſe who think ſo impeach him. If I can be convinced of it, I, for one, will not only vote for the impeachment, but ſupport it with all my might. For, conſidering that the conſtitution is the charter of our liberties, and the guarantee of them to our poſterity, I think the wilful infringement of it an offence which no conſideration ſhould induce us to pardon or overlook. If it were only an error in his judgment, and he too is liable to error, though perhaps not more ſo than thoſe who accuſe him, the error ſhould have been corrected, and all legal and proper means uſed for that purpoſe. But in the mean time, what has the merit or demerit of the treaty to do with the error o • the offence? The queſtion is, whether the treaty be a proper, a beneficial one; not whether the miniſter who negociated it, were conſtitutionally appointed. If the miniſter were weak, ignorant or wicked, that would be a good reaſon for ſuſpecting the treaty to be a bad one: but can his talents for negociation, or his integrity, be leſſened or increaſed by the conſtitutionality or unconſtitutionality of his appointment? But how does it appear that Mr. Jay's appointment was unconſtitutional? The conſtitution ſays, that the legiſlative, executive, and judicial powers ſhall be diſtinct and ſeparate. But is negociating a treaty a legiſlative or an executive act? So far from it, that it is not, in the eye of the law or the conſtitution, an act of any kind. To make a treaty is partly an executive, partly a legiſlative act; but the miniſter does not make it any more than a lawyer makes a will or a deed which he is employed to draw up. It derives its legal exiſtence and efficacy not from the act of the miniſter who negociates and ſigns it, but from that of the Preſident and Senate, who ratify it. They make the treaty, and the negociator is only an inſtrument in their hands for that purpoſe; as much an inſtrument a • the clerk who is employed to engroſs, or the meſſenger who carries it. But the ſame perſon, it is ſaid, cannot perform two different functions at once. How does this appear? The conſtitution ſays no ſuch thing. It will ſeldom be poſſible, and more ſeldom will it be expedient, for the ſame perſon to ſuſtain two functions at one time; but the conſtitution does not forbid it, when poſſible and expedient; and of this poſſibility and expediency, the Preſident and Senate, in whom reſts the power of appointment, are to judge. It is further contended, that a judge will have an improper bias, in favour of a treaty which he has negociated, which he has been concerned in making; and ſhould therefore never be employed for that purpoſe. It would be juſt as wiſe to ſay, that no perſon who had negociated a treaty, who had been a member of Congreſs, or of any State Legiſlature, could ever after be made a judge; becauſe in all thoſe caſes he would be called upon to expound and enforce laws which he had been concerned in making. At this rate, before the Preſident can place a man of the moſt diſtinguiſhed talents on the federal bench, he muſt enquire, whether the candidate has ever been thought worthy of a ſeat in the Legiſlature of his own ſtate, and if he has, reject him. He will probably find but few who poſſeſs this neceſſary qualification; of which I am ſure that not one of the preſent judges can boaſt. They have all been members of their ſtate legiſlatures, and moſt of them members of Congreſs. One of them was taken from the ſenate to be made a judge. I would aſk whether it would be unconſtitutional for the Preſident to call for the advice of the judges about ſome executive act, the ratification of a treaty for inſtance? And yet a judge who adviſes a treaty may have as ſtrong a bias in favour of it, as one who negociates it; and one caſe is juſt as much a blending of the executive and judicial departments • s the other. Would it be unconſtitution 〈◊〉 the Preſident if he were going on a military expedition during the receſs of Congreſs, to make a member of either houſe his aidde-camp? Yet this would be employing a member of the legiſlative body in functions appertaining to the executive department.

For theſe reaſons, fellow-citizens, it appeared to me that Mr. Jay's appointment could not be juſtly conſidered as unconſtitutional, or improper; and that if it were both the one and the other, ſtill this would not affect the merits of the treaty; from an attentive and impartial examination of which, a correct judgment can alone be formed.

Among the numerous objections which have been made to the treaty itſelf, none appear to have produced a ſtronger impreſſion on the public mind, than its giving up the claim for negroes carried away at the end of the war, and its making no proviſion againſt the impreſſing of American ſeamen into the Britiſh naval ſervice.

The laſt of theſe objection ſeems to me to ariſe from an overfight; or from very great inattention to the inſtrument. The nineteenth article provides, that "for the ſecurity of the reſpective ſubjects and citizens of the contracting parties, and to prevent their ſuffering injuries by the men of war or privateers of either party, all commanders of ſhips of war, privateers, and all others the ſaid ſubjects and citizens, ſhall forbear doing any damage to thoſe of the other party, or committing any outrage againſt them." Does not this amount to a complete prohibition againſt the impreſſing of American ſeamen? For what greater injury or outrage can be done to a man than to ſeize him by force, and carry him to ſerve on board a ſhip of war? Beſide even this was unneceſſary; for to impreſs our ſeamen is an illegal act, expreſsly contrary to the law of nations; as much ſo as to take our ſhips, invade our territory, or burn our towns; and it would have been juſt as reaſonable to require a ſtipulation againſt theſe or any other acts of hoſtility. It would be like inſiſting on a neighbour to give bond and ſecurity that he would not rob us or burn our houſes. It will often be difficult to diſtinguiſh American from Britiſh ſeamen, and miſtakes no doubt will ſometimes be committed. The Britiſh claim a right to impreſs their own ſeamen wherever they find them; there are great numbers of them on board of our ſhips, where they get better wages than in their own. In taking them, American citizens will often be taken by miſtake, and ſometimes by deſign; for we can never be perfectly guarded againſt inſolence and violence; but this would alſo happen if a thouſand treaties were made. The treaty on ſome occaſions would, thro' miſtake or deſign, be diſregarded, as the law of nations now is. Our government muſt paſs a law to furniſh its citizens with proper certificates, and if thoſe who have them are impreſſed, it muſt interfere efficaciouſly in their behalf, and get them releaſed.

On the ſubject of the negroes, there has been much miſconception. The number taken away, as far as it can be aſcertained, does not exceed three thouſand, of theſe one thouſand were free, or belonged to perſons who went off with the Britiſh. Two thouſand conſequently is the whole number for which payment could be demanded. A very great number died, and a ſtill greater perhaps was ſent off to the Weſt-Indies during the war; but the treaty of peace does not comprehend theſe. Its words are "his Britanic majeſty ſhall, with all convenient ſpeed, and without cauſing any deſtruction, or carrying away any negroes, or other property of the American inhabitants, withdraw all his armies, &c. This can relate only to negroes to be carried away at the evacuation, by Britiſh authority, and the number of theſe does not exceed two thouſand. Stating theſe two thouſand at two hundred dollars each, the whole amount is four hundred thouſand dollars. Is this a ſum for two countries to quarrel about? A war of three months would coſt five times as much. The Britiſh government abſolutely refuſed to give up the point. They were preſſed again and again, and ſtill adhered to it with inflexible obſtinacy. They contended, that we had no right to payment for theſe negroes; that the treaty of peace meane only ſuch negroes as were American property at the time of the evacuation; and that they having been taken in war, had by the laws of war become booty and were no longer American property, any more than horſes, cattle, or any thing elſe which had been taken. Whether they were in the right, or we, is not eaſy or neceſſary to decide. They inſiſted on it, and the queſtion was whether we would give it up, or break off the negociation and come to an open quarrel with them. Would it have been wiſe to do ſo? I think not. I think it was much better to give up the four hundred thouſand dollars; and for our government to pay it, if neceſſary to the ſufferers. To act otherwiſe would, in my opinion, have been like two men going to law about the value of a cow, and expending an hundred pounds a piece in the diſpute. Nations as well as individuals, muſt ſometimes make conceſſions if they wiſh to live in peace; and for each party to inſiſt obſtinately on all that he thinks himſelf intitled to, would prevent the poſſibility of terminating differences in an amicable manner.

Another objection of great force againſt the treaty is, that it is hoſtile towards France.

But wherein does this hoſtility conſiſt? All the rights of France under her treaties with us are expreſsly ſaved▪ for in the twenty fifth article, it is ſtipulated that "nothing in this treaty contained ſhall, however, be conſtrued or operate, contrary to former and exiſting public treaties with other ſovereigns or ſtates." Theſe are the words. How then can any of the rights of France be infringed? The treaty, it is ſaid, will prove diſadvantageous to the intereſts of France. But, fellow citizens, what does this amount to? It amounts, as I think, to ſaying, that the government of America is not to be guided by the intereſts of its own citizens, but by thoſe of its allies. We have nothing to do with the intereſts of France or any other power. We muſt take care not to infringe their rights, and leave the care of their intereſts to themſelves. It is the intereſt of France to make us quarrel with Britain, and of Britain to make us quarrel with France; becauſe both wiſh to render us ſubſervient and uſeful to themſelves, and to make their commerce flouriſh at our expence. It is our intereſt to be in peace with them both, and to prevent either from gaining influence in our councils; which we may be aſſured they will direct, as far as they can direct them, for their own intereſt and not for ours. What becomes of the independence of our country, if we can make no treaty without firſt enquiring whether France or any other power, will be injured or benefited by it? This would make us her ſubjects, not her allies. Has ſhe conſulted us in any of the treaties which ſhe has made? It would be very much to our intereſt for her to remain at war with all Europe, becauſe ſhe and her enemies are obliged to purchaſe our proviſions at an enormous price, and our neutrality gives us immenſe advantages in the carrying trade; yet it would be unreaſonable in us to expect, and very fooliſh in her to agree, that the war ſhould continue longer than neceſſary, becauſe it conduces to our advantage.

It is contended that this treaty puts our commerce with Britain on a footing very injurious to France, and is therefore an infringement of her rights under the laws of neutrality. This would be a ſolid objection, if it were true; but is it true? I apprehend not. The treaty, it is ſaid, prevents us from exporting to France the commodities of her iſlands. But it was the twelfth article from which this effect was apprehended, and the twelfth article was rejected by the Senate. Beſide, the twelfth article did not ſay that we ſhould not carry the produce of the iſlands to France. It only ſaid that we ſhould not bring them into our own country, and then re-export them to any country; but we might ſtill, even if the twelfth article had been ratified, carry them from the iſlands directly to France, whenever the French themſelves would allow us the privilege. It is further ſaid, that the treaty, by the eighteenth article, gives up the right of carrying proviſions to France during the war, and allows the Britiſh to capture our veſſels if they make the at • empt. This, if true, would be a ſufficient objection to over-ſet the treaty; but it is not true: The words of the eighteenth article are theſe; "And whereas the difficulty of agreeing on the private caſes in which alone proviſions and other articles not generally contraband, may be regarded as ſuch, renders it expedient to provide againſt the inconveniencies and miſunderſtandings which might thence ariſe, it is further agreed, that whenever any ſuch articles ſo becoming contraband according to the exiſting law of nations, ſhall for that reaſon be ſeized, the ſame ſhall not be confiſcated; but the owners thereof ſhall be ſpeedily and completely indemnified." Every body knows that there are caſes in which proviſions may become contraband by the law of nations. If there be no ſuch caſes, then this clauſe has no effect; for it applies to caſes where ſuch articles become contraband according to the exiſting laws of nations, and to them only. If there be ſuch caſes, then the article provides that the proviſions inſtead of being confiſcated, as they would be by the law of nations, ſhall be paid for, with frieght, charges, and a mercantile profit. This ſtipulation of conſequence, is greatly in our favour; ſince in many caſes it ſaves our proviſions from confiſcation, to which they would otherwiſe be liable. It alſo operates favourably to France; for our merchants will be more apt to ſend proviſions there, when all the riſk they run is that of being carried into England and paid for, than if they were in danger of being not only carried in, but confiſcated. Yet this article is repreſented as hoſtile to France, and has been called "an attempt to bring even proviſions under the head of contraband."(a)

With as little juſtice has the treaty been charged with defining and puniſhing piracy. It does no ſuch thing. It agrees in the twenty-firſt article, that if any of our citizens privateer againſt the Britiſh under foreign commiſſions, and are taken, the Britiſh may puniſh them as pirates. That is, that if our citiizens chooſe to put themſelves out of the protection of our government by committing hoſtilities againſt a nation with which we are at peace, we will not countenance them; we will not protect them; we will not quarrel with that nation on their account. The treaty does not ſay that we will puniſh them as pirates, but that the Britiſh may, if they catch them. And the Britiſh make the ſame agreement on their part. Is not this perfectly reaſonable? Ought we to engage in the quarrel of every perſon among us whom avarice or idleneſs may induce to turn privateer againſt nations with whom we are at peace? I conceive not. When our citizens take commiſſions from other powers for privateering, they muſt look to thoſe powers for protection, and not expect that we ſhould be drawn in to endleſs quarrels for the irregularity of their conduct.

This clauſe about piracy has been repreſented as extending to perſons who take commiſſions in the land and naval ſervice of powers at war; but this is a miſtake. It is confined intirely to privateers and lettres of marque. As to other commiſſions it is agreed, that our citizens ſhall not accept them againſt the Britiſh nor the Britiſh againſt us; and that the laws againſt ſuch offences ſhall be punctually executed. The treaty ſpeaks of no new laws on this ſubject; it expreſſes only that thoſe already made or which may be made hereafter, ſhall be enforced.

Surely ſuch laws as the legiſlature has thought proper to make ought to be enforced. If they are unwiſe or improper the legiſlature can repeal them; and whether there ſhall be any additional ones, depends on its own wiſdom, and future conſideration. Surely thoſe who have the ſtrongeſt impreſſion of our obliga • ions to our allies, will not contend that we ought, thro' complaiſance to them, to ſuſpend the execution of our own laws, or forbear to make ſuch others, from time to time, as we may • udge expedient for the ſafety and proſperity of our country. make, but alſo what laws we ſhall make, and what we ſhall execute, we muſt give up; in my opinion, all claim to the character of an independent nation.

In all our other treaties, • in that with France, article 21, in that with Holland, article 19, in that with Sweden, article 23, and in that with Pruſſia, article 20, it is expreſsly ſtipulated, that if, while the two parties are at peace, the citizens or ſubjects of one take commiſſions or lettres of marque from any foreign power to privateer againſt the citizens or ſubjects of the other, they ſhall be liable to be puniſhed as pirates. In every treaty which we have made this has been a part. If it were unwiſe or improper, why has it been done on every other occaſion; or why has it never been complained of? If wiſe and proper why ſhould it not be done now? Why ſhould we refuſe to do that in a commercial treaty with Great-Britain, which we have already done in commercial treaties with the kings of Sweden and Pruſſia, with whom we have little or no intercourſe, and whoſe commerce with us is of very little importance?

Another ground of ſtrong objection to the treaty is, that it did not obtain an immediate, or at any rate, an early, ſurrender of the weſtern poſts.(a) The true ſtate of that buſineſs ſeems to me to be thus: Great-Britain is in poſſeſſion of the Poſts, and we, to whom they belong, wiſh to get them. Great-Britain promiſes to give them up in eighteen months; but abſolutely refuſes to do it ſooner. The queſtion then is, will we wait this eighteen months, or attempt by force to get them ſooner? If we do it ſooner, it muſt be by force; for though very hard preſſed on that ſubject, and repeatedly preſſed, as I am authorized to declare, they poſitively and obſtinately refuſed. Let thoſe who might be inclined to uſe force, recollect that ſuch an attempt would be the beginning of a war; and that is a ſhort war which laſts only eighteen months. Let them recollect how much trouble the Indians have given us in that quarter; what a vaſt expence; and how many years it has coſt us to bring them to reaſon; and how much more unmanagable we ſhould have found the Britiſh and Indians together. The Britiſh, it is ſaid, have encouraged the Indians in the war. That may be. I belive it is ſo; but there is a vaſt difference between ſecret encouragement and open direct aſſiſtance. It has been ſaid, that our Envoy ought to have broken off the treaty, unleſs the poſts were immediately delivered. But would that have brought us any nearer getting them? Suppoſe the treaty had been broken off, what ſhould we have done next? We muſt have let the Britiſh keep the poſts, fought to recover them, or begun a new treaty. Would this new treaty have been likely to ſucceed better than the other? I think not. They who ſay the negotiation ought to have been broken off, ſeem to me to forget that it was we not the Britiſh, who wiſhed to treat. They were in poſſeſſion of all they wanted, except their old Debts, and they held the poſts as a ſecurity for them. We wiſhed to get poſſeſſion of our rights unjuſtly witheld from us; and we had the choice of negociation or compulſion, for that purpoſe. Which was beſt? negociation in my opinion; becauſe compulſion is uncertain, tedious, and very expenſive.

But it is ſaid, that we have only the promiſe of the Britiſh to give up the poſts on the firſt of June 1796, and they may break their word. So they may: and if they had promiſed to ſurrender them in ſix months, or three, or in a fortnight, ſtill we ſhould only have their word; and that is all we can have in agreements with nations or individuals. Suppoſe we ſhould go to war with them, and get the advantage; it is very uncertain whether we ſhould be able to take the poſts, for that would require a very great force: All we could do would be to compel the Britiſh to make peace, and agree to give them up by ſuch a day. Here we ſhould have no more than their promiſe: and that we have got without a war. It is their intereſt however to keep this promiſe; for our government, in conſideration of it, has agreed to pay their ſubjects the damages which they have ſuſtained by the legal impedement to the recovery of their debts. The poſts are to be delivered before this payment becomes due; and if they ſhould not be delivered, we ſhall be at liberty to withhold the payment. This promiſe, beſide, is now ſoon to be performed. The poſts are to be delivered the firſt of next June, about ſix monhts, and we underſtand the Britiſh are now making preparations for the ſurrender. Had we not better wait this ſix months, and ſee whether they will perform their promiſe, than quarrel about the delay?

Suppoſe fellow citizens, one of you ſhould come to me as a lawyer and tell me that a perſon was in poſſeſſion of a tract of your land, lived on it, and had a crop growing: that provided you would leave ſome old accounts to arbitration and agree to pay what might be given againſt you, he was willing to acknowlege your requeſt, and give from under his hand to move off in the fall, as ſoon as he could get in his crop, and provide a place for his family; but abſolutely refuſed to go ſooner. Should I adviſe you to go to law under theſe circumſtances, or wait till the 〈…〉 adviſed the ••• mony for me, I think, that I never gave ſuch adviſe, But how much more miſchievous would it be in the affairs of a nation; where millions of expence, and thouſands of lives would probably pay the forfeit!

The treaty has been charged with permitting by the firſt article, "the unconditional return to our country of all perſons who were proſcribed during the late war." (a) I confeſs I cannot ſee how this permiſſion is to be found in the firſt article. It ſays, "there ſhall be a firm, inviolable, and univerſal peace, and a true and ſincere friendſhip, between his Britanic Majeſty, and the United States, and between their reſpective countries, territories, cities, towns, and people of every degree, without exception of perſons or places." If this permits the unconditional return of baniſhed perſons, how comes it to paſs that they did not return under the treaty of peace, between us and Great Britain, which contains preciſely ſuch a ſtipulation. In the ſeventh article of the treaty of peace, it is aſſerted that "theſe ſhall be a firm and perpetual peace between his Britanic Majeſty and the ſaid States, and between the ſubjects of the one and the citizens of the other." The perſons who adhered to the Britiſh, the royaliſts and tories, were all Britiſh ſubjects, and yet none of them had a right to return under this ſtipulation in the treaty of peace. How then can they have it under a ſimilar ſtipulation in the treaty of commerce? The truth is, as it ſtrikes me, that peace and reſidence, are things entirely diſtinct. A nation may be at peace with another, and yet preclude from its territories, or from all but certain places, all the individuals of that other; as the Chineſe and Japaneſe conſtantly do; as well as the Engliſh and Dutch with reſpect to their Eaſt-India poſſeſſions, and the Spaniards with reſpect to their dominions in South America. Where two nations intend not only to be at peace, but to give the people of each other mutually the right of reſidence, for commerce or any other purpoſe, there is always an expreſs ſtipulation to that effect. Suppoſe we ſhould paſs a law making a certain offence puniſhable by perpetual baniſhment, and a ſubject of Great Britain ſhould come here, commit the offence, be convicted of it, and baniſhed? Would he have a right under this article, to return, notwithſtanding his baniſhment? I conceive not. Suppoſe a Britiſh ſubject ſhould be tranſported to Botany Bay, for fourteen years, ſhould eſcape from thence immediately, and come to America? By reſiding here five years, concealing his circumſtances, and conducting himſelf well, he might become an American citizen. Could he, under this article, return and 〈…〉 whom they are willing to be at peace. Becauſe I agree to live peaceable with my neighbours, are they at liberty to come and live in my houſe?

It has been charged againſt the treaty, that it "eſtabliſhes by the ſecond article, a Britiſh colony within our limits, with peculiar privileges."(a) One would ſuppoſe from this expreſſion, that the perſons whom the treaty permits to remain within our limits without becoming American citizens, were to be free from our laws and juriſdiction, and ſubject to thoſe of Great-Britain; for that is the import of the word "colony." But is this the caſe? Certainly not. Theſe perſons, as it appears to me, are to remain within our territory, as Britiſh ſubjects, preciſely in the manner as hundreds of Britiſh ſubjects and ſubjects of every other country, remain in other parts of our territory; at Charleſton, Philadelphia, New-York, and elſewhere; ſubject to our laws in every reſpect, liable to taxes, military duty, and all the other burdens of citizens, but deprived of the privileges. The number of theſe people is inconſiderable; not more than four thouſand at all the poſts; ſome affirm not more than three. By the ſurrender of the poſts to the United States, the inhabitants would not only have become citizens, but would have loſt the character of Britiſh ſubjects, which numbers of them, may wiſh to retain. Sooner than relinquiſh this character, many of them, perhaps all, would probably have removed before the evacuation, and carried with them into Canada their capital, their induſtry, their knowledge of Indian trade, and their Indian connections. Thus by the ſurrender of the poſts we ſhould have obtained ſome ſpots of earth, of little value, while the Indian trade, the great object of our wiſhes, would have been transferred with the inhabitants, to the Britiſh dominions. To prevent this, the treaty wiſely provides, that theſe people though they continue in our country, may if they pleaſe, remain Britiſh ſubjects; a proviſion without which they would by the act of continuing have become American citizens. By this mean ma • of them may be induced to remain. Their induſtry will be for us; the proſperity they acquire, the improvements they make, the commerce they eſtabliſh, for us; their families will grow up citizens; and it is highly probable, that they themſelves will ſoon wiſh to become ſo. Thoſe who accuſe the treaty of having admitted theſe people to the rights of citizenſhip, ſeem to have forgotten, that if the poſts had been given up without ſaying a word about them, they would have become citizens. And if they had not, what ſhould we have done with them? Drive other caſes, which has been to intice people into our country, not expel them from it. They are diſpoſed, it is ſaid, to do us miſchief, and have joined the Indians againſt us. Some of them may have done ſo; but there is no proof that the number was conſiderable. And if it were what ſhould we have gained by driving them off? Would their hoſtile diſpoſition be diminiſhed by being expelled from their homes, and ſeizing their property? Or would it leſſen their power to hurt us? No: for they need only move to the other ſide of a river, and then they would be in the Britiſh dominions, free to execute their malice and reſentment on every favourable occaſion; whereas, while they ſtay among us, we have their families and their property, as pledges for their good conduct. But extraordinary privileges, it is ſaid, are granted to theſe people. What are theſe privileges? To keep their property if they ſtay, and fell it if they go. Theſe privileges do not ſeem to have any thing very extraordinary in them. To let them ſtay, and yet take their property from them, would be ſomewhat extraordinary; and as to allowing them to ſell it if they go away, that is always permitted even to enemies, on the breaking out of a war.

It has been alleged that theſe people hold vaſt quantities of land, which by the treaty they are allowed to retain. They can hold no lands but what were held at the treaty of peace, either by them or thoſe under whom they claim. The Britiſh government has made no grants ſince; and if it had, they would be invalid, being made within what that government itſelf acknowledged to be our territory. The quantities of land held there at the treaty of peace, are not, as far as I have been able to learn, by any means conſiderable: and be it much or little, the perſons who held it, had a right to retain it by the treaty of peace, in common with all other perſons whoſe lands lay within the limits then eſtabliſhed.

A further accuſation againſt the treaty is, that it "erects a tribunal new and unknown to our conſtitution; inaſmuch as it transfers the right of deciding on the claims of Britiſh creditors from the courts and juries of America to commiſſioners; a majority of whom may be Britiſh ſubjects and by their deciſions, tax the revenue of theſe ſtates at pleaſure." (a) This objection is made to the ſixth article.

But is this the ſenſe of the article? The caſe appears to me to ſtand thus. Our citizens owed conſiderable debts to Britiſh ſubjects, contracted before the peace. The recovery of theſe debts had, in many inſtances, been delayed ſince the peace, by 〈…〉 under laws. During theſe delays many of the debtors became inſolvent, wholly or in part, ſo that even after the impediments were removed, the creditors were not able to obtain payment "in the ordinary courſe of Juſtice." In theſe caſes our government undertakes to indemnify them for the loſs, provided it ſhould appear not to have ariſen from their own "delay, negligence, or wilful omiſſion," or from "ſuch other cauſes as would have equally operated to produce ſuch loſs, if the illegal impediment had not exiſted." The claim muſt ſtill be decided on by our own courts; the creditor muſt ſue there; the debtor may make any defence, may ſhew that the debt never was due, or has been paid, or that a compoſition has been accepted, judgment muſt be obtained, and execution iſſued, and the money recovered from the debtor if he be able to pay. Till all this is done, it cannot appear that the debt cannot be obtained "in the ordinary courſe of judicial proceedings." When this appears, the buſineſs of the court ends, becauſe they have done all that was in their power. The government then undertaken to be anſwerable, and the creditor goes before the commiſſioners. The inſolvency being aſcertained by theſe proceedings, the commiſſioners enquire whether it aroſe from the "lawful impediments aforeſaid," or has been occaſioned by the delay, negligence, or wilful omiſſion of the creditor, or any other cauſe which would have produced it, had no legal impediment exiſted? In the latter caſe he can recover nothing. If the inſolvency took place during the war, before the legal impediments commenced, or after they ceaſed, he can recover nothing. If while the legal impediment exiſted, he neglected to go as far towards ſecuring his debt as it would have permitted, he can recover nothing. The legal impediment for inſtance, might hinder him from ſelling the property of his debtor, without hindering him from obtaining a judgment and execution ſo as to bind that property: if he neglected to do ſo he can recover nothing. It might hinder him from obtaining judgment, but not from compelling ſecurity; if he did not compel it, he can recover nothing. Hence it appears, that the United States will be liable in comparatively few caſes; and that the buſineſs of the commiſſioners is, not to decide upon the debt, to liquidate or enforce it, but where it has been loſt, to pronounce whether the loſs has proceeded from a legal impediment created by our government, or from the neglect of the creditor himſelf.

Fault has been found with the method of appointing commiſſioners. Our government is to appoint two, the Britiſh ſon, and thoſe of the Britiſh another; and from theſe two perſons, ſo named, one is to be drawn by lot, and to be the 〈◊〉 commiſſioner. This fifth commiſſioner, and one of thoſe choſen by each party, muſt always be preſent in order to make a board. Could there be a fairer way of appointing theſe arbitrators? I think not. A majority it is true, may be Britiſh ſubjects, and Britiſh creditors; but it may likewiſe, happen that the majority will be American citizens and American debtors. The chance is preciſely as great for one as for the other. The probability is, that the choice will be an impartial one on both ſides, and will fall on men of talents and integrity, as little connected as poſſible, with either party.

"The ſeventh article," it is ſaid, "makes reſtitution for the extenſive ſpoliations lately committed on our commerce, remote, expenſive, and uncertain." (a) It ſeems to me, juſt as much ſo, and no more, as the reſtitution which we undertake to make Britiſh creditors for the loſſes occaſioned by legal impediments to the recovery of their debts. Nor do I ſee how it could be more ſpeedy in either caſe. They undertake to pay us for irregular captures, where indemnification cannot be obtained in the ordinary court of judicial proceedings, we muſt ſue in their courts as they muſt in ours, before it can appear whether indemnification can be obtained in that mode. Thus far it is perfectly equal on both ſides; but we have a very great advantage i • this reſpect, that our government indemnifies the Britiſh creditors againſt the inſolvency of the debtor only, and that in thoſe caſes alone where the loſs has ariſen in conſequence of ſome legal impediment; whereas the Britiſh government indemnifies our merchants not only againſt the inſolvency of the captors, in all caſes where they themſelves have been guilty of no neglect, but alſo againſt the orders of the government, and the deciſions of their courts, where thoſe orders and deciſions are contrary to "juſtice, equity, and the laws of nations" thoſe being the land marks eſtabliſhed by the treaty to guide the deciſions of the commiſſioners.

There have been a great variety of other objections made to this inſtrument, which the compaſs of this addreſs, already, I fear, too long, does not permit me to conſider. I have, however, carefully examined them all, and think them all capable of a ſatisfactory anſwer. Thoſe which I have ſtated appear to me to be the moſt material. Perhaps they may have more weight than I have imagined; but while I think them void of foundation, I cannot allow them to influence my conduct; for which I have, and ought to have, no other guide than my own underſtanding.

Theſe objections are againſt the expediency of the treaty, 〈◊〉 is alſo objected to as unconſtitutional. The Preſident and Senate, it is ſaid, have exerted powers which belong to the whole legiſlature, and in ſo doing have violated the conſtitution. But, fellow citizens, the conſtitution is the ſupreme law of the land, and any treaty, or other act of the government, which is contrary to it muſt be a nullity. The judges of the ſupreme and inferior courts, whoſe office it is to expound and enforce the laws, muſt diſregard ſuch an act. They are to judge whether it is law or not; in other words, whether it is contrary to the conſtitution. In one inſtance, they declared a law paſſed by congreſs to be void, becauſe they thought it againſt the conſtitution; and no doubt if this treaty ſhould appear ſo, to them, they will treat it in the ſame manner.

But I cannot conceive that the treaty is contrary to the conſtitution. The legiſlative power, and the treaty-making power are diſtinct in their nature, different in their objects, and placed in different hands. The legiſlative power depends for its exertion, on the will of our own government alone: the treaty-making power requires the conſent of another government. The legiſlative power applies to objects internal, to acts within our own territory, to relations exiſting between our citizens themſelves, or between them and ſtrangers who come among us. The treaty-making power on the contrary applies to objects external, to acts which may be done in foreign countries as well as our own; to the relations between us as a nation, and other nations. The legiſlative power regulates the conduct of one individual towards another individual; the treaty-making power, that of one people towards another people. The firſt of theſe powers, the legiſlative, is by our conſtitution veſted in congreſs; by which I underſtand the two houſes, the ſenate and repreſentatives; the ſecond, the treaty-making power, is given to the Preſident, under the controul of the Senate.

When therefore the conſtitution ſays in one place, that congreſs, meaning the two houſes, ſhall have power "to regulate commerce with foreign nations, and among the ſeveral ſtates, and with the Indian tribes;" and in another that the Preſident "ſhall have power, by and with the advice and conſent of the Senate, to make treaties, provided two thirds of the ſenators. preſent concur" how is it to be underſtood? The power to make treaties is unlimited and univerſal; and we know very well that four fifths of the treaties which have been made for the laſt hundred years, either relate wholly to commerce, or contain commercial regulations. Out 〈◊〉 ſix treaties which the old congreſs made, four are commer •• 〈…〉 . If we ſay that the Preſident and Senate 〈…〉 of commerce with a foreign nation, we ſhall render the power to make treaties, which the conſtitution gives them, almoſt a dead letter. Yet the ſame conſtitution ſays, that congreſs "ſhall have power to regulate commerce with foreign nations." The difficulty at once diſappears by recurring to the difference between the legiſlative and treaty-making powers, in their nature and objects. Congreſs poſſeſſes the legiſlative power: it being declared by the 1ſt ſection of the 1ſt article of the conſtitution, that "all legiſlative powers therein granted ſhall be veſted in a congreſs of the United States, which ſhall conſiſt of a ſenate and houſe of repreſentatives." The regulations of commerce therefore which congreſs is authorized to make, are legiſlative regulations; regulations which depend ſolely on the will and act of our own government, without requiring the conſent and concurrence of another government; regulations which are to operate in our own country alone. But thoſe regulations of commerce which are not legiſlative, which require the concurrence of other governments, which are to operate in foreign countries, cannot be made by the legiſlature; they can be effected only by treaty; and the power of making treaties is given by the conſtitution, not to congreſs, not to the legiſlature, but to the Preſident and ſenate.

When therefore the conſtitution ſays in one place that "all legiſlative powers ſhall be veſted in congreſs" and afterwards enumerates among theſe powers that of "regulating commerce," it explicitly declares, that the regulations of commerce which congreſs is to make, are legiſlative regulations and no other; and when it goes on to give the treaty making power to the Preſident and ſenate, it declares no leſs explicitly, that thoſe branches of the government ſhall have power to make all thoſe commercial regulations, which requiring the conſent of other governments, lie beyond the reach of our own laws, and can be affected only by treaty.

This conſtruction is ſupported by the authority of a gentleman whom every American muſt always be proud to quote. Mr. Madiſon, ſupporting the conſtitution in the convention of Virginia, and refuting ſome objections which had been made to the manner of placing the treaty-making power, laid down the diſtinction between that and the legiſlative power, and obſerved, "that the exerciſe of the power muſt be conſiſtent with the object of the delegation." That is, that the treaty making power muſt apply only to ſuch acts, ſuch regulations, as are the proper objects of treaties; and the legiſlative power to ſuch as are the proper object of laws. To raiſe money for inſtance, is the object of a law, but to agree with a foreign nation for the the Preſident and Senate therefore may contract with another power by treaty, to pay it a ſum of money, yet they cannot lay a 〈◊〉 by treaty to raiſe the money. That muſt be done by congreſs; by the legiſlative power.

This diſtinction has been adopted and acted upon by our government in a variety of inſtances which have never been complained of. Treaties have been made with moſt, if not all, of the Indian nations on our borders; and one has lately been concluded with all the tribes northweſt of the Ohio. All theſe treaties contain regulations reſpecting our commerce with the different tribes. This has never been conſidered as unconſtitutional; has never been objected to; and yet the conſtitution ſays that congreſs, among the legiſlative powers that are veſted in it, ſhall have that of "regulating commerce with the Indian tribes." The meaning, evidently is, and has always been ſo underſtood, that congreſs ſhall have power to make all the legiſlative regulations that may be neceſſary in our commerce with the Indians: all the regulations which, depending ſolely on the act of our own government, might be effected by our own laws: while thoſe which required the concurrence of the Indians themſelves, conſidered as independent nations, and could therefore be accompliſhed only by treaty, were left, under the treaty making power, to the Preſident and Senate.

This has alſo been the conſtant ſenſe of the American people, and of the United States, in Congreſs aſſembled under the old confederation. The old Congreſs had no power to make any legiſlative regulations reſpecting commerce of any kind. All this the States reſerved to themſelves. The firſt ſection of the ninth article of confederation and perpetual union, enumerates the powers granted to the United States in Congreſs aſſembled, and among them is that of "entering into treaties and alliances; provided that no treaty of commerce ſhall be made whereby the legiſlative power of the reſpective ſtates ſhall be reſtrained from impoſing ſuch impoſts on foreigners as their own people are ſubject to." Here the people of the United States, by their repreſentatives in the ſtate legiſlatures, declare in the moſt explicit manner, that under the power of "entering into treaties and alliances" treaties of commerce may be made; and alſo that thoſe treaties, unleſs it had been expreſsly guarded againſt by a proviſo, might "reſtrain the legiſlative powers of the reſpective ſtates," in regulating their own commercial affairs. According to this principle the old Congreſs, under the power of "entering into treaties and alliances" exactly the ſame power which is given to the Preſident and Senate by our preſent conſtitution, went on to make commercial treaties with all the powers of Europe that could be prevailed on to enter into them; with France, Holland, Sweden and Pruſſia; and made repeated over into 〈◊〉 the ſame purpoſe, to Great-Britain. Had he ſtates confide •• 〈◊〉 theſe commercial treaties entered into by the old Congreſs, 〈◊〉 an infringement of their rights, as an undue extenſion of the power of "entering into treaties and alliances" which had been granted to the confederation, would they not have complained? Would they not have remonſtrated? They were ſufficiently jealous of the confederation; ſufficiently 〈◊〉 in the powers with which they agreed to inveſt it. Would 〈◊〉 have quietly ſubmitted to ſee th • ſe powers illegally, improperly enlarged? Surely not. They underſtood perfectly the diſtinction between legiſlative regulations of commerce, and regulations by treaty, and while they retained the former in their own hands, ſaw the propriety of leaving the latter to that body which the American nation had appointed to repreſent it in its tranſactions with foreign nations; had inveſted with the power of "entering into treaties and alliances."

The Preſident and Senate, with reſpect to treaties, and commercial regulations, now ſtand on the ſame ground, which under the old confederation, was occupied by the United States in congreſs aſſembled. The Conſtitution gives the power of making treaties to the Preſident, under the controul of the Senate: the old confederation; gave that power to Congreſs. Whatever therefore, the old Congreſs could do on this ſubject under the confederation, the Preſident and Senate can do under the conſtitution. The old congreſs could regulate commerce with foreign nations and the Indian tribes, as far as thoſe regulations were to depend on foreign powers, and to be made by treaty. They did it in many inſtances, attempted it in more, and the people of the United States confirmed their acts. It can of conſequence be done by the Preſident and Senate, who have the power, formerly veſted in the old congreſs, of "entering into treaties and alliances." Under the old confederation the power of regulating commerce internally, by legiſlative acts, remained with the reſpective ſtates; under the conſtitution, it is given to Congreſs. In both caſes it is equally diſtinct from the treaty making power. Its being expreſsly given to Congreſs makes no difference in that reſpect; for before it was ſo given it remained in the ſtates, was the ſame in nature and extent, and could no more controul the treaty making power in one caſe than in the other.

Hence it appears clearly to me that the treaty is not contrary to the conſtitution; not beyond the powers thereby given to the Preſident and Senate.

It has often been aſked, what benefit do we derive from the treaty? How does it conduce to our advantage? In the firſt place it ſettles our former differences with Great-Britain, differences which every day became more and more ſerious and embarraſſing, and ſettles them in a manner conſiſtent with our rights and our honour. As it was a caſe of mutual and contrary demands, we have given up ſomething in order to gain the reſt, and to avoid the danger of a quarrel; which, in my poſſible event, muſt have been attended with very great miſchief. And ſecondly as to our commerce, we have gained important advantages in many parts of it, particularly the Eaſt-India and Canada trade, without making any unuſual or improper conceſſion; we have placed the whole of it, for a certain time, on a permanent footing inſtead of the precarious ſtate in which it formerly was, dependent on the temporary proclamation of the Britiſh government; and we have laid the foundation for a more laſting, and a more extenſively beneficial arrangement.

The queſtion is not whether this treaty be as advantageous as we could wiſh, or had a right to expect; but whether, ſuch as it is, our intereſt requires, all circumſtances conſidered, that it ſhould be accepted? Whether there be reaſonable ground to hope for more advantageous terms by further negociation; and if not, whether theſe terms, ſuch as they are, be not preferable to an acquiſcence under the injuries of which we complain, or an attempt to redreſs them by meaſures of compulſion? I can diſcern, after the moſt careful conſideration, no reaſonable ground to hope for more advantageous terms from negociation; and I am moſt decidedly of opinion that between accepting theſe, and either acquieſcing tamely in our wrongs, or attempting to vindicate them by compulſory meaſures, of any kind, there ought to be no heſitation.

I cannot conclude, fellow citizens, without taking ſome notice of the means which have been employed to prejudice and inflame the public mind againſt this meaſure. The moſt unlimitted abuſe has been heaped on its authors, its adviſers, and its ſupporters. They have been charged with being corrupted by Britiſh gold, with being actuated by a violent hatred to France, and a ſervile attachment to Great-Britain. Its particular proviſions have been miſrepreſented, and the whole inſtrument, the reſult of many months conſideration, has been ſtigmatized and condemned after a haſty reading, and very often without any reading at all. One writerFeatures of the treaty. among various other groſs miſrepreſentations, has been ſo ſhameleſs as to call this treaty, "an alliance with Great-Britains' no leſs than ten times in a work of 67 pages; and to fill ſeveral of thoſe pages with objections founded wholly on the 12th article which he knew to have been rejected by the Senate, and conſequently no part of the treaty. I ſay "ſhameleſs," becauſe the other parts of the book ſhew that he is by no means ſo ignorant as not to underſtand the difference between a treaty of commerce, and "an alliance." Thus alſo a perſon in Philadelphia writing to his friend in Charleſton, on June 29th, 1795. a few days after the treaty was ratified, ſays, that in conſequence of the treaty "we muſt either limit exceedingly our Weſt-Indian trade, or burn the returns which we bring from thence over and above our own conſumption, becauſe Britain, Mr. Jay, and the Senate, have prohibited the citizens from re-ſhipping them,Charleſton City Gazette, July 14, 1795. This writer, as he had read the treaty, muſt have known that all the regulations reſpecting the Weſt-India trade were contained in the twelfth article, which the ſenate had rejected; and yet he wilfully miſrepreſents that very article as the expreſs act of the ſenate. With the ſame view of miſleading and inflaming the public mind, it is conſtantly repeated that the great body of the people are oppoſed to the treaty; that it has received the unequivocal diſapprobation of the citizens from New-Hampſhire to Georgia. Nothing is leſs true. I have lately ſeen in the South Carolina State Gazette, of October 27, 1795, a letter from ſome perſon in Philadelphia to his friend in Charleſton, dated October 10th, in which the writer ſays, that he had lately made a tour through the eaſtern ſtates, and found ſeven eighths of the people diſguſtted with the adminiſtration, and oppoſed to the treaty and that ſyſtem of intrigue and wicked policy which contrived it. I can contradict this aſſertion on my own knowledge. I have ſpent the whole fall in travelling through thoſe ſtates, and I have no difficulty in declaring that a very great majority of the people in all of them, perhaps I might ſay ſeven-eighths, are perfectly well ſatisfied with the treaty: and that I believe is nearly the caſe with all the ſtates north of the Patowmac. I mention theſe among a vaſt variety of inſtances, to ſhew how much paſſion and miſrepreſentation has been employed in deciding on a meaſure which ought to have been judged of with coolneſs, candor, and good ſenſe.

But, fellow-citizens if the treaty were, what I do not think it is, a diſadvantageous and unequal one, are there no reaſons why we ſhould acquieſce in it? It is an act of our government, a law, agreed on and enacted by the proper majority of thoſe whom we ourſelves have appointed to make treaties. Is it right to reſiſt every law which we do not approve, which we believe to be a bad one? When a meaſure is under deliberation it is the duty, as well as the right of every citizen to expreſs 〈◊〉 opinion about it, and to give his reaſons. When the rea ••• s have been heard, and the majority have decided, the reſt ought to ſubmit: otherwiſe government never can go on, never can exiſt. If the government be wrong alter it; If its powers be too great, abridge them: but while it remains unaltered it ought to be obeyed; otherwiſe the laws will ceaſe to rule, and the dominion of force be ſet up in their ſtead. On this ſubject I • ake great pleaſure in citing the opinion of a very reſpectable ſenator, who voted againſt the treaty. The day after it was ratified in the ſenate, he told me "that he diſliked it, and had thought it his duty to vote againſt it in the ſenate; but that it was now done, was ſo far an act of government, to which every good citizen ought to ſubmit; and that he wiſhed ſincerely that the people of the United States might be ſatisfied with it." This ſentiment does him the higheſt honour, and is worthy in my opinion, of imitation by every friend to his country.

Such, fellow citizens, are the reaſons which have induced me to believe that the treaty in queſtion is "proper and expedient." It is uncertain whether any, queſtion will ariſe upon it this ſeſſion; I do not know or believe that there is any intention in any part of the houſe to appear it. The ratification 〈…〉 , though we have 〈…〉 the Engliſh newſpapers, of its having taken place. Whenever it comes before us. I ſhall give my voice for its going fully into effect; convinced that it is conſiſtent with the honour and conducive to the intereſt and happineſs of my country; of that country among whoſe citizens, and whoſe ſons it is my boaſt, and my pride to be numbered, and to which it is my higheſt ambition to be uſeful. But if I cannot be retained in its ſervice without renouncing my independence, without giving up my underſtanding, on queſtions of the greateſt magnitude, to the guidance of others, without exerciſing that truſt which the people have repoſed in me, in a manner which, after the fulleſt conſideration, my own mind condemns, let me return to a private ſtation. I know that the opinions of many of you, on this ſubject, differ from mine. I have told you the truth without diſguiſe or concealment: I have explained my motives and principles; and it is for you to judge whether they merit a continuation of your confidence. If you deſire a faithful repreſentative, who will employ all his time and talents, whatever they may be, in finding out the beſt means of promoting your intereſt and happineſs; who will think and act for himſelf, and not by the direction of others; who will go with you at all hazards, when he thinks you in the right, and have courage enough to differ from you and oppoſe you when he thinks you in the wrong, I am bold to declare that I deſerve your choice. But if you 〈◊〉 for one of a contrary character, one who before he gives 〈◊〉 in congreſs will conſider, not how far it may conduct to 〈◊〉 public good, but what effect it may have on his own population whoſe object it ſhall be not to ſerve his country, but to 〈◊〉 himſelf in place; who inſtead of aſſiſting, with whatever abilities he may have, in carrying on the government ſo as to promote and ſecure the public happineſs, ſhall content himſelf with making declamations againſt all its acts, I am not the man: 〈◊〉 your choice on another. I ſhall be grieved at loſing your confidence, but I ſhall not repine or complain; for I ſhall carry with me the conſciouſneſs of having deſerved to retain it. I ſhall return among you, purſue thoſe occupations to which my life has been devoted, and prepare myſelf to ſerve my country with effect, whenever and in whatever manner, it may think proper to call for my ſervices. You will do me the juſtice to declare that altho' I wiſhed for your appointment, I did not purſue it by means unbecoming the independence and dignity of the republican character; that I ſought your approbation and your ſuffrages, by ſervices and induſtry, not by ſolicitation or flattery; that I waited till I was called for, and might have been called ſooner had I expreſſed ſuch a wiſh. Such of you I have ſeen me 〈◊〉 the legiſlature of our own ſtate, will alſo 〈◊〉 witneſs that I attached my ſelf to no party, and that I devoted my whole time to the public buſineſs, that while I advocated your rights with a firmneſs and zeal I truſt not unbecoming their importance, I voted differently from your other repreſentatives, when I thought the public good lay on the oppoſite ſide. You can atteſt that while I laboured to change our ſtate government in that part where I thought it hoſtile to the rights of a great majority of the people, I nevertheleſs conſtantly recommended a perfect ſubmiſſion to it while it ſhould continue to be our government, and diſſuaded from any attempt to effect the deſired alteration in any other than the conſtitutional mode: convinced that the buſineſs of the people is to make or alter governments, not to direct their adminiſtration; and that altho' it be not only their right but their duty to amend whatever may be wrong in the eſtabliſhed ſyſtem, every principle of ſocial order and public happineſs requires that until they think, proper to make the alteration, the government, however defective, ought to be obeyed. The ſame conduct I ſhall purſue here; the ſame principles ſhall ſtill be my guide. If you approve them, your approbation will be a pleaſing and precious reward: if you ſhall diſapprove, I ſhall cheerfully ſubmit to your determination▪