Mr. Madison said, on a subject of such extent and importance, he should not attempt to go through all the observations that might be applicable to it. A general view of the subject was all that he meant at present. His omissions would be more than supplied by others who might enter into the discussion.

The proposition immediately before the committee was, that the treaty with Great Britain ought to be carried into effect by such provisions as depended on the house of Representatives. This was the point immediately in question. But it would be proper in examining it, to keep in view also the proposition of the gentleman from Pennsylvania (Mr. Maclay)1 which had been referred to the committee, and which would be taken up of course, if the immediate question should be decided in the negative.

If the proposition for carrying the treaty into effect be agreed to, it must be from one of three considerations: either that the legislature is bound by a constitutional necessity to pass the requisite laws, without examining the merits of the treaty, or that, on such examination the treaty is deemed in itself a good one; or that there are good extraneous reasons for putting it into force although it be in itself a bad treaty.

The first consideration being excluded by the decision of the house, that they have a right to judge of the expediency or inexpediency of passing laws relative to treaties; the question first to be examined must relate to the merits of the treaty. He then proceeded to consider the treaty under three aspects: First as it related to the execution of the treaty of peace in 1783. Secondly, as it determines the several points in the law of nations. Thirdly, as it respects the commerce between the two nations.

First. He would not enquire on which side the blame lay, of having first violated the treaty of 1783, or of having most contributed to delay its execution, although he did not shrink from the task under any apprehension that the result could be disadvantageous to this country. The treaty itself had waved this enquiry, and professed to adjust all controversies on this subject, without regard to the mutual complaints or pretensions of the parties. It was therefore justly and naturally to be expected, that the arrangements for carrying that treaty into effect, would have been founded in the most exact and scrupulous reciprocity. Was this the case? He was sorry that on the contrary, the arrangements were founded on the grossest violation of that principle.

There were two articles which had not been executed by Great Britain; that which related to the negroes and other property carried away, and that which required a surrender of the posts. The article unexecuted by the United States was, that which required payment of all bona fide debts according to the treaty now in question; this article is now to be carried into the most compleat effect by the United States, and damages to the last fraction are to be paid for the delay. Is there a reciprocal stipulation by Great Britain with respect to the articles unexecuted by her? Nothing like it. She is wholly absolved from the obligation to fulfil one of the articles, viz. that relating to the negroes, &c. and she is to make no compensation whatever for delaying to fulfil the other, viz. the surrender of the posts.

It had been urged in apology for those very unequal stipulations, that the injury resulting from a forbearance to surrender the posts, was not susceptible of any precise liquidation into pecuniary damages. However plausible this might appear, it was by no means satisfactory. Commissioners, such as were appointed, with full discretion for other purposes, might have been charged with this subject, and if they could not have done exact justice might have mitigated the injustice of doing nothing.

Apologies had been attempted also, for the very extraordinary abandonment of the compensation due for the negroes, &c. It was said to be at least doubtful whether this claim was authorised by the 7th art. of the treaty of peace, and that Great Britain had uniformly denied the meaning put by the United States on that article.2 In reply he made two remarks. First, that it was not true that Great Britain had uniformly denied the American construction of that article, on the contrary he believed it could be proved, that till of late, Great Britain had uniformly admitted this construction, and had rejected the claim on no other ground, than the alledged violation of the 4th article,3 on the part of the United States.

But had it been true that Great Britain had uniformly asserted a different construction of the article, and refused to accede to ours; what ought to have been done? ought we to have at once acceded to hers? By no means. 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 an arbitration. To give up the claim altogether, was to admit either that Great Britain had a better right than the United States to explain the controverted point, or that the United States had done something which in justice called for a sacrifice of their equal right.

It was evident, he thought from this view of the subject; that the arrangements with respect to the treaty of peace, were frequently wanting both in justice and reciprocity.

It would seem from the face of the treaty, and the order of the articles, that the compensation for the spoliations on our trade had been combined with the execution of the treaty of peace; and might therefore have been viewed as a substitute for the compensation for the negroes &c. If this was the meaning of the instrument, it could not be the less obnoxious to reasonable and fair judges. No man was more thoroughly convinced than himself of the perfect justice on which the claims of the merchants against Great Britain were founded, nor any one more desirous to see them fully indemnified. But compensation to them could never be a just substitute for the compensation due to others. It was impossible that any claims could be better founded than those of the sufferers under the 7th article of the treaty of peace; because they were supported by positive and acknowledged stipulation, as well as by equity and right. Just and strong as the claim of the merchants might be, and certainly were, the United States could not be obliged to take more care of them than of the claims equally just and strong of other citizens; much less to sacrifice to them the claims of other citizens. 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 favour of the mercantile claims, the mercantile claims had been relinquished, and the other claims provided for; he asked whether the complaints of the merchants would not have been as universal and as loud as they would have been just.

Besides the omissions in favour of Great Britain, already pointed out with respect to the execution of the treaty of peace, he observed, that conditions were annexed to the partial execution of it in the surrender of the western posts, which increased the general inequality of this part of the treaty, and essentially affected the value of those objects.

The value of the posts to the United States was to be estimated by their influence, 1. On the Indian trade; 2d. On the temper and conduct of the Indians towards the United States.

Their influence on the Indian trade depended principally on the exclusive command they gave to the several carrying places connected with the posts. These places were understood to be of such importance in this respect, that those who possessed them exclusively would have a monopoly, or nearly a monopoly, of the lucrative intercourse with a great part of the savage nations. Great Britain having hitherto possessed these places, exclusively, has possessed this advantage. It was expected that the exclusive transfer of them would transfer the advantage to the United States. By the treaty now concluded, the carrying places are to be enjoyed in common, and it will be determined by the respective advantages under which British and American traders will engage in the trade, which of them is to share most in it.4 In this point of view he thought the regulation highly impolitic and injurious. He would say little of the advantage which the British would have in their superior capital: that must be encountered in all our commercial rivalships. But there was another consideration which ought to have great weight on this subject. The goods imported for the Indian trade through Canada, pay no duties. Those imported through the United States for that trade, will have paid duties from seven to ten per-cent, and every one must see that a drawback is impracticable, or would be attended with an expence which the business would not bear. So far then as the importance of the posts is to be considered in a commercial view, they are in a very great measure stript of it, by the condition annexed to the surrender of them. Instead of a monopoly in our favor, the carrying places are made common under circumstances which may leave a monopoly in the hands of Great Britain. And this is done too by an article which is to last for ever.

2. The influence of the posts on the general conduct of the Indians is well known to depend chiefly on their influence on the Indian trade. In proportion therefore as the condition annexed to the surrender of posts affects the one, it must affect the other. If the British should continue to enjoy the Indian trade, they would continue to influence the Indian conduct; if not in the same degree as heretofore, at least in so great a degree as to condemn the article in question.

He mentioned the permission to aliens to hold land in perpetuity as a very extraordinary feature in this part of the treaty.5 He would not enquire how far this might be authorized by constitutional principles. But he would continue to say that no example of such a stipulation was to be found in any treaty that ever was made, either where territory was ceded or where it was acknowledged by one nation to another. Although it was common and right in such cases to make regulation in favor of the property of the inhabitants, yet he believed that in every case that had ever happened, the owners of landed property were universally required to swear allegiance to the new sovereign, or to dispose of their landed property within a reasonable time.

He took notice also of the inequality of the stipulation which opened all the ports of the United States, as the condition of having those of an unimportant province of Great Britain opened in return.6

With respect to the Mississippi, he could not but consider the clause relating to it as being singularly reprehensible.7 Happily the adjustment of our claims with Spain had been brought about before any evil operation of the clause had been experienced. But the tendency of it, he thought, could not be doubted. It was the more remarkable, that this extension of the privileges of Great Britain on the Mississippi beyond those in the treaty of peace, should have been admitted into the new treaty; because it is supposed by the treaty itself, that Great Britain may be deprived, by her real boundary, of all pretensions to a share in the banks and waters of the Mississippi.8

Secondly, With respect to the great points in the law of nations, comprehended in the stipulations of the treaty, the same want of real reciprocity, and the same sacrifice of the interests of the United States, were conspicuous.

It was well known to have been a great and favourite object with the United States, “that free ships make free goods.” They had established this principle in all their other treaties. They had witnessed with anxiety the general effort and the successful advances towards incorporating this principle into the law of nations; a principle friendly to all neutral nations, and particularly interesting to the United States. He knew that at a former period it had been conceded on the part of the United States, that the law of nations stood as the present treaty regulates it.9 But it did not follow that more than acquiescence in that doctrine was proper. There was an evident distinction between silently acquiescing in it, and giving it the support of a formal and positive stipulation. The former was all that could have been required, and the latter was more than ought to have been unnecessarily yielded.

In the enumeration of contraband articles the treaty was liable to similar observations. The circumstances and interests of the United States had given way to the particular views of the other party. The example in all our other treaties had been disregarded. Hemp, tar, pitch, turpentine, &c. important staples of this country, are without even a pretext of reciprocity, subjected to confiscation. No nation, which produced these articles had, he believed, treaties at present making the same sacrifice, except Denmark, who, in the year 1780, had been induced, he knew not by what means, into an explanation of the treaty of 1670, by which these articles are declared to be contraband. He observed, that this supplementary and explanatory agreement between Great Britain and Denmark appeared to have been the model selected for the contraband list in the treaty now in question.10 The enumeration in the latter was transcribed word for word from the former, with a single exception, which might be thought remarkable. The article of Horses which was included in the original, was dropt in the copy. In this particular the article had departed from Vattel also, although in general the treaty seemed to have availed itself wherever it readily could of his authority.

But what was far more remarkable, the copy had proceeded just as far as answered the purposes of Great Britain and stopt at the very point, where the original would have answered the just and essential purposes of the United States. After enumerating the articles to be deemed contraband, the Danish article goes on in the words following, viz.

“But it is expressly declared that among contraband merchandizes, shall not be comprehended fish and meats, whether fresh or salted, wheat, flour, corn or other grain, beans, oil, wine, and generally whatever serves for the nourishment and support of life, all of which may at all times be sold and transported like any other merchandizes, even to places held by an enemy of the two crowns, provided they be not besieged or blockaded.”11

This view of the subject naturally led him to take notice of the clause in the British treaty relating to provisions; which, to say the least, wore an ambiguous countenance that was extremely disagreeable, or which rather seemed to carry a necessary implication that provisions tho’ not bound to besieged or blockaded places, might according to the existing law of nations, be regarded as contraband. According to the genuine law of nations, no articles which are not expressly and generally contraband, are so, except in the single case of their going to a besieged place; yet it is admitted in the treaty, that there are other cases when provisions may be contraband, whence the implication results that one of the cases might be that which had been assumed & put in force by Great Britain in relation to the United States.12 The little cases which might be devised as appurtenant to the law which condemns what is bound to blockaded places, cannot satisfy the import of the stipulation, because such cases cannot be presumed to have been in contemplation of the parties. And if the particular case of provisions bound to a country at war, although not to a besieged place, was not meant to be one of the cases of contraband according to the existing law of nations, how necessary was it to have said so; and how easy and natural would that course have been, with the Danish example on the subject before their eyes.

On the supposition that provisions in our own vessels bound to countries at war with Great Britain, can be now seized by her for her own use, on the condition stipulated; this feature of the treaty presents itself in a very serious light indeed, especially if the doctrine be resorted to as laid down by the executive, in the letter of the then secretary of state (Mr. Jefferson) to Mr. Pinckney, on the 7th September, 1793.13 This letter is a comment on the British instructions of June 8, 1793, for seizing neutral provisions. After stating the measure as a flagrant breach of the law of nations, and as ruinous to our commerce and agriculture, it has the following paragraph. “This act too tends directly to draw us from that state of peace in which we are wishing to remain. It is an essential character of neutrality to furnish no aids (not stipulated by treaty,” that is, said Mr. M. by a treaty made prior to the war) “to one party which we are not equally ready to furnish to the other. If we permit corn to be sent to Great Britain and her friends, we are equally bound to permit it to France. To restrain it would be a partiality which must lead to war; and between restraining it ourselves and permitting her enemies to restrain it unrightfully is no difference. She would consider this as a mere pretext of which she would not be the dupe; and on what honorable ground could we otherwise explain it. Thus we should see ourselves plunged, by this unauthorised act of Great Britain, into a war with which we meddle not, and which we wish to avoid, if justice to all parties, and from all parties will enable us to avoid it.” He entreated the committee to bestow on this interesting executive document all the attention which it demanded.

The article prohibiting sequestration was next considered by Mr. M.14 He said he should probably be among the last, who would be disposed to resort to such an expedient for redress. But he could not approve of a perpetual and irrevocable abandonment of a defensive weapon, the existence of which might render the use of it unnecessary. The situation of this country in relation to Great Britain was a peculiar one. As we had not fleets and armies to command a respect for our rights, we ought to keep in our hands all such means, as our situation gave us. This article was another instance in which no regard was paid to reciprocity. British subjects it was well known had and were likely to have in this country a great deal of property of the kind made sacred. American citizens, it was as well known, had little and were likely to have little of the kind in Great Britain. If a real reciprocity had been intended, why were not other kinds of private property, as vessels and their cargoes, equally protected against violation. These even within the jurisdiction of Great Britain, are left open to seizure and sequestration, if Great Britain find it expedient. And why was not property on the high seas under the protection of the law of nations, which is said to be a part of the law of the land, made secure by a like stipulation? This would have given a face of equality and reciprocity to the bargain. But nothing of this sort makes a part of it, where Great Britain had a particular interest at stake, the treaty watchfully provides for it, when the United States have an equal interest at stake, and equally entitled to protection, it is abandoned to all the dangers which it has experienced.

After taking this brief notice of the positive evils in this part of the treaty, he might, he said, add the various omissions, which were chargeable on it. But as he should not pretend to exhaust the subject, he would mention one only; the not providing for the respect due to the exhibition of sea papers.15 He could not but regard this omission as truly extraordinary, when he observed that in almost every modern treaty, and particularly all our other treaties, an article on this subject was regularly inserted. Indeed it had become almost an article of course in the treaties of the present century.

Thirdly, The commercial articles of the treaty presented the third aspect under which he was to consider it. In the free intercourse stipulated between the United States and Great Britain, it could not be pretended that any advantage was gained by the former. A treaty was surely not necessary to induce Great Britain to receive our raw materials, and to sell us her manufactures. On the other hand consider what was given up by the United States.

When the government came into operation, it is well known that the American tonnage employed in the British trade bore the most inconsiderable proportion to the British tonnage. There being nothing on our side to counteract the influence of capital and other circumstances on the British side, that disproportion was the natural state of things. As some balance to the British advantages, and particularly that of her capital, our laws had made several regulations in favor of our shipping, among which was the important encouragement resulting from the difference of ten per cent. in the duties paid by American and foreign vessels. Under this encouragement the American tonnage has increased to a very respectable proportion to the British tonnage. Nor has Great Britain ever deemed it prudent to attempt any countervailing measures for her shipping; well knowing that we could easily keep up the differences by further measures on our side. But by the treaty she has reserved to herself the right to take such countervailing measures against our existing regulations;16 and we have surrendered our right to pursue further defensive measures against the influence of her capital. It is justly to be apprehended therefore that under such a restoration of the former state of things, the American tonnage will relapse to its former disproportion to the British tonnage.

When he turned his attention to the West India branch of the subject, [there was] still greater cause for wonder and dissatisfaction. As the treaty now stood,17 Great Britain was left as free as she ever had been, to continue the entire monopoly of the intercourse, to British vessels. Recollecting as he did, and as every member of the committee must do the whole history of this subject from the peace of 1783, through every subsequent stage of our Independence down to the mission of the late envoy, it was impossible for him to express his astonishment that any treaty of commerce should have ever been acceded to, which abandoned the very object for which such a treaty was ever contemplated. He never could have believed that the time was so near, when all the principles, claims, and calculations which have heretofore prevailed among all classes of people, in every part of the Union, on this interesting point, were to be so completely renounced. A treaty of commerce with Great Britain, excluding a reciprocity for our vessels in the W. India trade, is a phenomenon which had filled him with more surprise than he knew how to express.

He might be told perhaps 1st. That Great Britain granted to no other nation the privilege granted to the United States of trading at all with her West Indies; and 2d. That this was an important relaxation of the colony system established among the nations of Europe.

To the first, it was enough to reply that no other nation bore the same relation to the West Indies as the United States; that the supplies of the United States were essential to those islands; and that the trade with them had been permitted purely on that account, and not as a beneficial privilege to the United States.

To the second, that it was not true, that the colony system required an exclusion of foreign vessels from the carrying trade between the colonies and foreign countries. On the contrary, the principle and practice of the colony system were to prohibit as much as would be convenient, all trade between the colonies and foreign countries; but when such a trade was permitted at all as necessary for the colonies; then to allow the vessels of such foreign countries a reciprocal right of being employed in the trade. Great Britain had accordingly, restrained the trade of her Islands with this country as far as her interest in them would permit. But had she allowed our vessels their reciprocal right to carry on the trade, so far as it was not restrained? No. Here she enforced a monopoly in her own favour, contrary to justice, and contrary to the colony system of every European nation having colonies; which without a single exception, never opens a trade between their colonies and other countries, without opening it equally to vessels on both sides. This is evidently nothing more than right and fair. A colony is a part of an Empire. If a nation choose, they may prohibit all trade between a colony, and a foreign country, as they may between any other part of their dominions and a foreign country. But if they permit such a trade at all, it must be free to vessels on both sides as well in the case of colonies, as of any other parts of their dominions. Great Britain has the same right to prohibit foreign trade between London and the United States, as between Jamaica and the United States, but if no such prohibition be made with respect to either she is equally bound to allow foreign vessels a common right with her own, in both. If Great Britain were to say that no trade whatever should be carried on between London and the United States, she would exercise a right which we could not complain of. If she were to say that no American vessel should be employed in the trade, it would produce just complaint, and justify a reciprocal regulation as to her vessels. The case of the trade from a port in the West-Indies is precisely similar.

To place the omission of the treaty to provide a reciprocity for our vessels in the West India trade, in its true light, it would be proper to attend to another part of the treaty, which tied up the hands of this country against every effort, for making it the interest of Great Britain to yield to our reasonable claims. He then pointed to the clause which restrains the United States from imposing prohibitions or duties in any case on Britain which did not extend to all other nations;18 observing that the clause made it impossible to operate on the unreasonable policy of that nation, without suspending our commerce at the same time, with all other nations whose regulations with respect to us might be ever so favorable and satisfactory.

The XV. Article had another extraordinary feature which must strike every observer. In other treaties putting the parties on the footing of the most favored nation: it was stipulated that where new favours were granted to a particular nation in return for favors received, the party claiming the new favour, should pay the price of it. This was just and proper where the footing of the most favored nation is established at all. But this article gives to Great Britain the full benefit of all privileges that may be granted to any other nation, without requiring from her the same or equivalent privileges with those granted by such nation. Hence it would happen that if Spain, Portugal or France, should open their colonial ports to the U. States in consideration of certain privileges in our trade, the same privileges would result gratis, and ipso facto, to Great Britain. He considered this stipulation as peculiarly impolitic, and that it could not fail in the view of the committee, to form a very solid and weighty objection to the treaty.

He was not unaware of the stress that would be laid on the article relating to the East Indies.19 He should leave to others better acquainted than himself, with this branch of the subject, to examine and explain it. He made two observations however, one was that judicious and well informed gentlemen, equally judicious and well informed with any who could be consulted, considered the article as offering not a shadow of advantage to the United States. The other was, that no privilege was stipulated which had not been uniformly heretofore granted without stipulation; and as the grant could have proceeded from no motive but a pure regard to the British interest in that country, there was every reasonable security that the trade would continue open as it had been, under the influence of the same consideration.

Such being the character of the treaty, with respect to the execution of the treaty of peace, the great principles of the law of nations, and the regulations of commerce, it never could be viewed as having any claim to be carried into effect on its own account.

Was there then, any considerations extraneous to the treaty that could furnish the requisite motives? On this subject, he observed that the house was wholly without information. And for himself he was ready to declare, that he had neither seen, nor known, nor heard of any circumstances in the general posture of things, or in the particular relation of this country to them, that could account for the unequal and injurious arrangements, which we were now called upon for laws to execute.

But there was something farther to be taken into the account. The continuance of the spoliations on our trade, and the impressment of our seamen; whether (as stated in the motion of the gentleman from Pennsylvania, Mr. Maclay,) to be understood as practical comments on the treaty, or as infractions of it, could not but enforce on the minds of the committee the most serious reflections. Here he referred again to the passage he had read in the letter from Mr. Jefferson to Mr. Pinckney; and asked, if as there stated by the Executive, our neutrality and peace were to be exposed, by permitting practices of that kind, what might be thought of our giving effect, in the midst of such practices, to a treaty from which a countenance might be derived by the nation for going on with them.

He was aware that the Executive, notwithstanding the doctrine and policy laid down as above, had finally concurred in the treaty under such circumstances. But he did not consider that as invalidating the reasoning drawn from the present state of things. He might, he said, be stepping on delicate ground, but he could not think it improper to remark, that it was a known fact that the Executive actually paused for some weeks after the concurrence of the Senate, before the treaty received his signature; that it is fairly to be presumed that a renewal of the spoliations and a recollection of the light in which they had been represented, were a ground of the pause; that, on that supposition he was probably influenced in signing the treaty when he did, by an expectation that such a mark of confidence in the British government, would produce an abolition of the unlawful proceeding, and consequently, if it had been foreseen that the spoliations would have been continued as we find them to be the treaty would not have been then signed, or if it had not been then signed, it would not be signed, under the circumstances of the moment when it falls under our consideration.20

He should conclude he said, with taking notice of two considerations which had been much used as inducements to carrying the treaty into effect.

1. It was said that the greater part of the treaty was to continue two years only after the present war in Europe; and that no very great evils could grow out of it within that period. To this he replied, in the first place, that ten of the articles containing many very objectionable stipulations were perpetual. In the next place, that it would be in the power of Great Britain, at the expiration of the other articles, to produce the same causes for a renewal of them, as are now urged in their favor. If we are now to enforce the treaty, lest Great Britain should stir up the Indians, and refuse to pay the merchants for the property of which she has plundered them, can she not at the end of two or three years, plunder them again to the same or a greater amount; cannot the same apprehensions also be then revived with respect to the Indians, and will not the arguments then, be as strong as they are now, for renewing the same treaty, or making any other equal sacrifice that her purposes may dictate.

2. It was asked what would be the consequence of refusing to carry the treaty into effect? He answered, that the only supposable consequence was, that the executive, if governed by the prudence and patriotism, which he did not doubt would govern that department, would of course pursue the measures most likely to obtain a reconsideration and remodification of the offensive parts of the treaty. The idea of war, as a consequence of refusing to give effect to the treaty, was too visionary and incredible to be admitted into the question. No man would say that the United States, if an independent people, had not a right to judge of their own interests, and to decline any treaty that did not duly provide for them. A refusal therefore, in such cases, could give no cause nor pretext, nor provocation for war or for any just resentment. But apart from this, was it conceivable that Great Britain, with all the dangers and embarrassments which are thickening upon her, would wantonly make war on a country which was the best market she had in the world for her manufactures, which paid her an annual balance in specie, of ten or twelve millions of dollars; and whose supplies were moreover essential to an important part of her dominions? Such a degree of infatuation ought not to be ascribed to any nation. And at the present crisis for reasons well known, an unprovoked war from Great-Britain on this country, would argue a degree of madness greater than under any other circumstances that could well be imagined.

With all the objections therefore to the treaty which he had stated, he hoped that it would not now be carried into effect: and that an opportunity would take place for reconsidering the subject on principles more just and more favorable to the United States.