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Part III. The French Revolution and the People - Lance Banning, Liberty and Order: The First American Party Struggle 
Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004).
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A Candid State of Parties” 22 September 1792
As it is the business of the contemplative statesman to trace the history of parties in a free country, so it is the duty of the citizen at all times to understand the actual state of them. Whenever this duty is omitted, an opportunity is given to designing men, by the use of artificial or nominal distinctions, to oppose and balance against each other those who never differed as to the end to be pursued, and may no longer differ as to the means of attaining it. The most interesting state of parties in the United States may be referred to three periods. Those who espoused the cause of independence and those who adhered to the British claims formed the parties of the first period, if, indeed, the disaffected class were considerable enough to deserve the name of a party. This state of things was superseded by the treaty of peace in 1783. From 1783 to 1787 there were parties in abundance, but being rather local than general, they are not within the present review.
The Federal Constitution, proposed in the latter year, gave birth to a second and most interesting division of the people. Everyone remembers it, because everyone was involved in it.
Among those who embraced the Constitution, the great body were unquestionably friends to republican liberty, tho’ there were, no doubt, some who were openly or secretly attached to monarchy and aristocracy, and hoped to make the Constitution a cradle for these hereditary establishments.
Among those who opposed the Constitution, the great body were certainly well affected to the union and to good government, tho’ there might be a few who had a leaning unfavorable to both. This state of parties was terminated by the regular and effectual establishment of the federal government in 1788; out of the administration of which, however, has arisen a third division, which being natural to most political societies, is likely to be of some duration in ours.
One of the divisions consists of those who, from particular interest, from natural temper, or from the habits of life, are more partial to the opulent than to the other classes of society; and having debauched themselves into a persuasion that mankind are incapable of governing themselves, it follows with them, of course, that government can be carried on only by the pageantry of rank, the influence of money and emoluments, and the terror of military force. Men of those sentiments must naturally wish to point the measures of government less to the interest of the many than of a few, and less to the reason of the many than to their weaknesses; hoping perhaps in proportion to the ardor of their zeal, that by giving such a turn to the administration, the government itself may by degrees be narrowed into fewer hands and approximated to a hereditary form.
The other division consists of those who, believing in the doctrine that mankind are capable of governing themselves and hating hereditary power as an insult to the reason and an outrage to the rights of man, are naturally offended at every public measure that does not appeal to the understanding and to the general interests of the community, or that is not strictly conformable to the principles and conducive to the preservation of republican government.
This being the real state of parties among us, an experienced and dispassionate observer will be at no loss to decide on the probable conduct of each.
The antirepublican party, as it may be called, being the weaker in point of numbers, will be induced by the most obvious motives to strengthen themselves with the men of influence, particularly of moneyed, which is the most active and insinuating influence. It will be equally their true policy to weaken their opponents by reviving exploded parties and taking advantage of all prejudices, local, political, and occupational, that may prevent or disturb a general coalition of sentiments.
The Republican party, as it may be termed, conscious that the mass of people in every part of the union, in every state, and of every occupation must at bottom be with them, both in interest and sentiment, will naturally find their account in burying all antecedent questions, in banishing every other distinction than that between enemies and friends to republican government, and in promoting a general harmony among the latter, wherever residing or however employed.
Whether the republican or the rival party will ultimately establish its ascendance is a problem which may be contemplated now; but which time alone can solve. On one hand experience shows that in politics as in war, stratagem is often an overmatch for numbers: and among more happy characteristics of our political situation, it is now well understood that there are peculiarities, some temporary, others more durable, which may favor that side in the contest. On the republican side, again, the superiority of numbers is so great, their sentiments are so decided, and the practice of making a common cause, where there is a common sentiment and common interest, in spight of circumstantial and artificial distinctions, is so well understood, that no temperate observer of human affairs will be surprised if the issue in the present instance should be reversed, and the government be administered in the spirit and form approved by the great body of the people.
The French Revolution and the People
On 1 February 1793, eleven days after the execution of Louis XVI, the infant French Republic, already at war with Austria and Prussia, declared war also on Great Britain. By April, as the Republic’s first ambassador, “Citizen” Edmond Genet, made his way triumphantly from Charleston to Philadelphia, Washington’s cabinet was meeting repeatedly to deliberate the proper policy for the country in what was now a worldwide war pitting the former mother country (and much the most important trading partner of the new United States) against the revolutionary nation with which America still had a treaty of alliance. Although the treaty of 1778 obliged the United States to defend the French West Indies only in the event of a defensive war, and all of Washington’s secretaries agreed that the United States was not obliged to fulfill this guarantee, other clauses gave France superior advantages as a belligerent in American ports. It was difficult to define a policy that would not, in practice, favor one or the other of the warring powers and risk entanglement in the conflict. The president’s decision incorporated some of both Hamilton’s and Jefferson’s advice. Genet would be received as the representative of the legitimate government of France. The treaty would not be abrogated. But on 22 April 1793, Washington proclaimed that the United States would pursue a “friendly and impartial” conduct toward the belligerent powers.
“An Old French Soldier” (Philadelphia) General Advertiser 27 August 1793
The period so earnestly wished for by your enemies and by ours is at length at hand. Who would have thought, when the blood of Frenchmen drenched the foundation of the temple of your liberty, that a day would come when the interests of your former tyrants and those of your allies should be weighed in the same balance, and that those of the first should preponderate? Who … would have imagined that efforts tending to break off the bonds that unite us would ever have obtained the approbation of the American people? I surely had no thoughts of this kind when, at Yorktown, I saw a whole army of your tyrants render homage to your rights to independence and bend under the united standards of America and France. Let those brave soldiers who witnessed that memorable day, let your illustrious general whose labors it crowned with victory, ask themselves, and let them tell me, whether a Frenchman will not ever be to them as a brother and a friend? Whether our interests, our perils, and our glory can be indifferent to them?
Who, then, has been able to effect the sudden change I am so unfortunate as to witness? Do you, also, wish to punish us for being free; and generous Americans, if it is a crime, recollect that you set the example. What; because we are free, rights are disputed which would have been acknowledged if the tyrant were yet alive; because we are free our friendship is disregarded when the good will of our last master was courted with so much care and attention. It is because we are free that our advances are despised and that advantages which were solicited so earnestly of our former government are now, when granted, disregarded—Americans: the whole world, posterity will judge you. What can you answer? Your public prints overflow with learned discussions. All the rubbish of low writers is brought forward, authorities are scraped up, all to prove to you that ingratitude is a virtue in certain cases. But do you not feel something within you that spurns at such a decline? My friends! the honest and upright man has no need to consult voluminous works to determine what is right; his heart and his conscience are sufficient guides. What is right cannot cease to be so, and virtue is out of the reach of elaborate calculations.
I am not deep in political knowledge, but I have been forcibly impressed with this truth—that the present war in Europe is a war of principle; it is a war between liberty and despotism. Your situation does not permit you to take a part in this war; well, then, we will fight alone in the common cause; but at least give us the consolation to see that on every occasion your wishes are with us, as you have sworn it. Let your own interest prevent your throwing yourselves in the arms of your bitterest enemies.—Do not furnish them with weapons against you by abandoning your only friends.
alexander hamilton “Pacificus,” No. 1 29 June 1793
Despite a sharp initial reaction, public opinion shifted steadily in support of the administration’s course. Among the reasons were the increasingly outrageous conduct of Citizen Genet, who eventually threatened to appeal his disagreements with the administration to the public, and the seven essays of “Pacificus,” which appeared initially in the Gazette of the United States between 29 June and 30 July 1793. The pseudonym, as usual, did not disguise the author’s pen.
… What is the nature and design of a proclamation of neutrality?
The true nature & design of such an act is—to make known to the powers at war and to the citizens of the country whose government does the act that such country is in the condition of a nation at peace with the belligerent parties and under no obligations of treaty to become an associate in the war with either of them; that this being its situation its intention is to observe a conduct conformable with it and to perform towards each the duties of neutrality; and as a consequence of this state of things, to give warning to all within its jurisdiction to abstain from acts that shall contravene those duties, under the penalties which the laws of the land (of which the law of nations is a part) annexes to acts of contravention… .
… If this be a just view of the true force and import of the Proclamation, it will remain to see whether the President in issuing it acted within his proper sphere or stepped beyond the bounds of his constitutional authority and duty.
It will not be disputed that the management of the affairs of this country with foreign nations is confided to the Government of the U States.
It can as little be disputed that a Proclamation of Neutrality, when a nation is at liberty to keep out of a war in which other nations are engaged and means so to do, is a usual and a proper measure. Its main object and effect are to prevent the nation being immediately responsible for acts done by its citizens, without the privity or connivance of the Government, in contravention of the principles of neutrality.
An object this of the greatest importance to a country whose true interest lies in the preservation of peace.
The inquiry then is—what department of the Government of the U States is the proper one to make a declaration of neutrality in the cases in which the engagements of the nation permit and its interests require such a declaration.
A correct and well informed mind will discern at once that it can belong neither to the Legislative nor Judicial Department and of course must belong to the Executive.
The Legislative Department is not the organ of intercourse between the U States and foreign nations. It is charged neither with making nor interpreting treaties. It is therefore not naturally that organ of the Government which is to pronounce the existing condition of the nation with regard to foreign powers, or to admonish the citizens of their obligations and duties as founded upon that condition of things. Still less is it charged with enforcing the execution and observance of these obligations and those duties.
It is equally obvious that the act in question is foreign to the Judiciary Department of the Government. The province of that Department is to decide litigations in particular cases. It is indeed charged with the interpre-tation of treaties; but it exercises this function only in the litigated cases; that is where contending parties bring before it a specific controversy. It has no concern with pronouncing upon the external political relations of treaties between government and government. This po-sition is too plain to need being insisted upon.
It must then of necessity belong to the Executive Department to exercise the function in question—when a proper case for the exercise of it occurs.
It appears to be connected with that department in various capacities, as the organ of intercourse between the nation and foreign nations—as the interpreter of the national treaties in those cases in which the Judiciary is not competent, that is in the cases between government and government—as that power which is charged with the execution of the laws, of which treaties form a part—as that power which is charged with the command and application of the public force.
This view of the subject is so natural and obvious—so analogous to general theory and practice—that no doubt can be entertained of its justness, unless such doubt can be deduced from particular provisions of the Constitution of the U States.
Let us see then if cause for such doubt is to be found in that constitution.
The second Article of the Constitution of the U States, section 1st, establishes this general proposition, That “The Executive Power shall be vested in a President of the United States of America.”
The same article in a succeeding section proceeds to designate particular cases of executive power. It declares among other things that the President shall be Commander in Chief of the army and navy of the U States and of the militia of the several states when called into the actual service of the U States, that he shall have power by and with the advice of the senate to make treaties; that it shall be his duty to receive ambassadors and other public ministers and to take care that the laws be faithfully executed.
It would not consist with the rules of sound construction to consider this enumeration of particular authorities as derogating from the more comprehensive grant contained in the general clause, further than as it may be coupled with express restrictions or qualifications, as in regard to the cooperation of the Senate in the appointment of officers and the making of treaties, which are qualifications of the general executive powers of appointing officers and making treaties: Because the difficulty of a complete and perfect specification of all the cases of executive authority would naturally dictate the use of general terms—and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution in regard to the two powers the Legislative and the Executive serves to confirm this inference. In the article which grants the legislative powers of the government the expressions are—“All Legislative powers herein granted shall be vested in a Congress of the U States;” in that which grants the Executive Power the expressions are, as already quoted, “The Executive Power shall be vested in a President of the U States of America.”
The enumeration ought rather therefore to be considered as intended by way of greater caution, to specify and regulate the principal articles implied in the definition of executive power, leaving the rest to flow from the general grant of that power, interpreted in conformity to other parts of the constitution and to the principles of free government.
The general doctrine then of our Constitution is that the Executive Power of the Nation is vested in the President, subject only to the exceptions and qualifications which are expressed in the instrument.
Two of these have been already noticed—the participation of the Senate in the appointment of officers and the making of treaties. A third remains to be mentioned: the right of the Legislature “to declare war and grant letters of marque and reprisal.”
With these exceptions the Executive Power of the Union is completely lodged in the President. This mode of construing the Constitution has indeed been recognized by Congress in formal acts, upon full consideration and debate. The power of removal from office is an important instance.
And since upon general principles for reasons already given, the issuing of a proclamation of neutrality is merely an executive act, since also the general Executive Power of the Union is vested in the President, the conclusion is that the step which has been taken by him is liable to no just exception on the score of authority.
It may be observed that this inference would be just if the power of declaring war had not been vested in the Legislature, but that this power naturally includes the right of judging whether the nation is under obligations to make war or not.
The answer to this is that however true it may be that the right of the Legislature to declare war includes the right of judging whether the nation be under obligations to make war or not—it will not follow that the Executive is in any case excluded from a similar right of judgment in the execution of its own functions.
If the Legislature have a right to make war on the one hand—it is on the other the duty of the Executive to preserve peace till war is declared; and in fulfilling that duty, it must necessarily possess a right of judging what is the nature of the obligations which the treaties of the country impose on the government; and when in pursuance of this right it has concluded that there is nothing in them inconsistent with a state of neutrality, it becomes both its province and its duty to enforce the laws incident to that state of the nation. The Executive is charged with the execution of all laws, the laws of nations as well as the municipal law, which recognizes and adopts those laws. It is consequently bound, by faithfully executing the laws of neutrality, when that is the state of the nation, to avoid giving a cause of war to foreign powers.
This is the direct and proper end of the proclamation of neutrality. It declares to the U States their situation with regard to the powers at war and makes known to the community that the laws incident to that situation will be enforced. In doing this, it conforms to an established usage of nations, the operation of which as before remarked is to obviate a responsibility on the part of the whole society for secret and unknown violations of the rights of any of the warring parties by its citizens.
Those who object to the proclamation will readily admit that it is the right and duty of the Executive to judge of, or to interpret, those articles of our treaties which give to France particular privileges, in order to the enforcement of those privileges; but the necessary consequence of this is that the Executive must judge what are the proper bounds of those privileges—what rights are given to other nations by our treaties with them—what rights the law of nature and nations gives and our treaties permit in respect to those nations with whom we have no treaties; in fine what are the reciprocal rights and obligations of the United States & of all & each of the powers at war.
The right of the Executive to receive ambassadors and other public ministers may serve to illustrate the relative duties of the Executive and Legislative Departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will and ought to be recognized or not: And where a treaty antecedently exists between the U States and such nation that right involves the power of giving operation or not to such treaty. For until the new government is acknowledged, the treaties between the nations, as far at least as regards public rights, are of course suspended.
This power of determining virtually in the case supposed upon the operation of national treaties as a consequence of the power to receive ambassadors and other public ministers is an important instance of the right of the Executive to decide the obligations of the nation with regard to foreign nations. To apply it to the case of France, if there had been a treaty of alliance offensive and defensive between the U States and that country, the unqualified acknowledgment of the new government would have put the U States in a condition to become an associate in the war in which France was engaged—and would have laid the Legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war.
This serves as an example of the right of the Executive, in certain cases, to determine the condition of the nation, though it may consequentially affect the proper or improper exercise of the power of the Legislature to declare war. The Executive indeed cannot control the exercise of that power—further than by the exercise of its general right of objecting to all acts of the Legislature; liable to being overruled by two thirds of both houses of Congress. The Legislature is free to perform its own duties according to its own sense of them—though the Executive in the exercise of its constitutional powers may establish an antecedent state of things which ought to weigh in the legislative decisions. From the division of the Executive Power there results, in reference to it, a concurrent authority in the distributed cases.
Hence in the case stated, though treaties can only be made by the President and Senate, their activity may be continued or suspended by the President alone.
No objection has been made to the Presidents having acknowledged the Republic of France by the reception of its minister, without having consulted the Senate, though that body is connected with him in the making of treaties, and though the consequence of his act of reception is to give operation to the treaties heretofore made with that country: But he is censured for having declared the U States to be in a state of peace & neutrality with regard to the Powers at War, because the right of changing that state & declaring war belongs to the Legislature.
It deserves to be remarked that as the participation of the Senate in the making of treaties and the power of the Legislature to declare war are exceptions out of the general “Executive Power” vested in the President, they are to be construed strictly—and ought to be extended no further than is essential to their execution.
While therefore the Legislature can alone declare war, can alone actually transfer the nation from a state of peace to a state of war—it belongs to the “Executive Power” to do whatever else the laws of nations cooperating with the treaties of the country enjoin in the intercourse of the U States with foreign powers.
In this distribution of powers the wisdom of our constitution is manifested. It is the province and duty of the Executive to preserve to the nation the blessings of peace. The Legislature alone can interrupt those blessings, by placing the nation in a state of war.
But though it has been thought advisable to vindicate the authority of the Executive on this broad and comprehensive ground—it was not absolutely necessary to do so. That clause of the Constitution which makes it his duty to “take care that the laws be faithfully executed” might alone have been relied upon, and this simple process of argument pursued.
The President is the constitutional executor of the laws. Our treaties and the laws of nations form a part of the law of the land. He who is to execute the laws must first judge for himself of their meaning. In order to the observance of that conduct which the laws of nations combined with our treaties prescribed to this country in reference to the present war in Europe, it was necessary for the President to judge for himself whether there was any thing in our treaties incompatible with an adherence to neutrality. Having judged that there was not, he had a right, and if in his opinion the interests of the nation required it, it was his duty, as executor of the laws, to proclaim the neutrality of the nation, to exhort all persons to observe it, and to warn them of the penalties which would attend its non-observance.
The Proclamation has been represented as enacting some new law. This is a view of it entirely erroneous. It only proclaims a fact with regard to the existing state of the nation, informs the citizens of what the laws previously established require of them in that state, & warns them that these laws will be put in execution against the infractors of them.
james madison “Helvidius,” No. 1 24 August 1793
Though Jefferson seemed satisfied, at first, with the administration’s actions, Madison was quick to write him from Virginia of their countrymen’s dismay over a policy of strict neutrality and of his own concern that the executive’s initiative had usurped the legislature’s power to decide on war and peace. Quickly, Jefferson retreated, and as popular opinion moved behind the proclamation, he increasingly expressed his own concern, not least about the constitutional interpretations Hamilton was using to defend the proclamation. “Nobody answers him,” he wailed, “and his doctrines will therefore be taken for confessed. For God’s sake, my dear Sir, take up your pen, select the most striking heresies, and cut him to pieces in the face of the public. There is nobody else who can and will enter the lists with him.” Madison’s response appeared in the Gazette of the United States between 24 August and 18 September 1793.
Several pieces with the signature of Pacificus were lately published, which have been read with singular pleasure and applause by the foreigners and degenerate citizens among us, who hate our republican government and the French Revolution; whilst the publication seems to have been too little regarded or too much despised by the steady friends to both.
Had the doctrines inculcated by the writer, with the natural consequences from them, been nakedly presented to the public, this treatment might have been proper. Their true character would then have struck every eye and been rejected by the feelings of every heart. But they offer themselves to the reader in the dress of an elaborate dissertation; they are mingled with a few truths that may serve them as a passport to credulity; and they are introduced with professions of anxiety for the preservation of peace, for the welfare of the government, and for the respect due to the present head of the executive, that may prove a snare to patriotism.
In these disguises they have appeared to claim the attention I propose to bestow on them; with a view to show, from the publication itself, that under color of vindicating an important public act of a chief magistrate who enjoys the confidence and love of his country, principles are advanced which strike at the vitals of its constitution, as well as at its honor and true interest.
As it is not improbable that attempts may be made to apply insinuations which are seldom spared when particular purposes are to be answered to the author of the ensuing observations, it may not be improper to premise that he is a friend to the constitution, that he wishes for the preservation of peace, and that the present chief magistrate has not a fellow-citizen who is penetrated with deeper respect for his merits or feels a purer solicitude for his glory.
This declaration is made with no view of courting a more favorable ear to what may be said than it deserves. The sole purpose of it is to obviate imputations which might weaken the impressions of truth; and which are the more likely to be resorted to in proportion as solid and fair arguments may be wanting.
The substance of the first piece, sifted from its inconsistencies and its vague expressions, may be thrown into the following propositions:
That the powers of declaring war and making treaties are, in their nature, executive powers:
That being particularly vested by the constitution in other departments, they are to be considered as exceptions out of the general grant to the executive department:
That being, as exceptions, to be construed strictly, the powers not strictly within them remain with the executive:
That the executive consequently, as the organ of intercourse with foreign nations and the interpreter and executor of treaties and the law of nations, is authorized to expound all articles of treaties, those involving questions of war and peace, as well as others; to judge of the obligations of the United States to make war or not, under any casus federis or eventual operation of the contract relating to war; and to pronounce the state of things resulting from the obligations of the United States as understood by the executive:
That in particular the executive had authority to judge whether in the case of the mutual guaranty between the United States and France, the former were bound by it to engage in the war:
That the executive has, in pursuance of that authority, decided that the United States are not bound: And,
That its proclamation of the 22nd of April last is to be taken as the effect and expression of that decision.
The basis of the reasoning is, we perceive, the extraordinary doctrine that the powers of making war and treaties are in their nature executive; and therefore comprehended in the general grant of executive power, where not specially and strictly excepted out of the grant.
Let us examine this doctrine; and that we may avoid the possibility of mistating the writer, it shall be laid down in his own words: a precaution the more necessary, as scarce any thing else could outweigh the improbability that so extravagant a tenet should be hazarded, at so early a day, in the face of the public.
His words are—“Two of these (exceptions and qualifications to the executive powers) have been already noticed—the participation of the Senate in the appointment of officers and the making of treaties. A third remains to be mentioned—the right of the legislature to declare war; and grant letters of marque and reprisal.”
Again—“It deserves to be remarked, that as the participation of the Senate in the making of treaties and the power of the legislature to declare war are exceptions out of the general executive power vested in the President, they are to be construed strictly, and ought to be extended no farther than is essential to their execution.”
If there be any countenance to these positions, it must be found either 1st, in the writers of authority on public law; or 2nd, in the quality and operation of the powers to make war and treaties; or 3rd, in the Constitution of the United States.
It would be of little use to enter far into the first source of information, not only because our own reason and our own constitution are the best guides but because a just analysis and discrimination of the powers of government according to their executive, legislative and judiciary qualities are not to be expected in the works of the most received jurists, who wrote before a critical attention was paid to those objects and with their eyes too much on monarchical governments, where all powers are confounded in the sovereignty of the prince. It will be found however, I believe, that all of them, particularly Wolfius, Burlamaqui and Vattel, speak of the powers to declare war, to conclude peace, and to form alliances as among the highest acts of the sovereignty, of which the legislative power must at least be an integral and preeminent part.
Writers such as Locke and Montesquieu, who have discussed more particularly the principles of liberty and the structure of government, lie under the same disadvantage, of having written before these subjects were illuminated by the events and discussions which distinguish a very recent period. Both of them too are evidently warped by a regard to the particular government of England, to which one of them owed allegiance* and the other professed an admiration bordering on idolatry. Montesquieu, however, has rather distinguished himself by enforcing the reasons and the importance of avoiding a confusion of the several powers of government than by enumerating and defining the powers which belong to each particular class. And Locke, notwithstanding the early date of his work on civil government and the example of his own government before his eyes, admits that the particular powers in question, which, after some of the writers on public law, he calls federative, are really distinct from the executive, though almost always united with it and hardly to be separated into distinct hands. Had he not lived under a monarchy, in which these powers were united; or had he written by the lamp which truth now presents to lawgivers, the last observation would probably never have dropt from his pen. But let us quit a field of research which is more likely to perplex than to decide and bring the question to other tests of which it will be more easy to judge.
2. If we consult for a moment the nature and operation of the two powers to declare war and make treaties, it will be impossible not to see that they can never fall within a proper definition of executive powers. The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts therefore, properly executive, must pre-suppose the existence of the laws to be executed. A treaty is not an execution of laws: it does not pre-suppose the existence of laws. It is, on the contrary, to have itself the force of a law and to be carried into execution, like all other laws, by the executive magistrate. To say then that the power of making treaties, which are confessedly laws, belongs naturally to the department which is to execute laws, is to say that the executive department naturally includes a legislative power. In theory, this is an absurdity—in practice a tyranny.
The power to declare war is subject to similar reasoning. A declaration that there shall be war is not an execution of laws: it does not suppose pre-existing laws to be executed: it is not in any respect an act merely executive. It is, on the contrary, one of the most deliberative acts that can be performed; and when performed, has the effect of repealing all the laws operating in a state of peace, so far as they are inconsistent with a state of war; and of enacting as a rule for the executive a new code adapted to the relation between the society and its foreign enemy. In like manner a conclusion of peace annuls all the laws peculiar to a state of war and revives the general laws incident to a state of peace.
These remarks will be strengthened by adding that treaties, particularly treaties of peace, have sometimes the effect of changing not only the external laws of the society, but operate also on the internal code, which is purely municipal, and to which the legislative authority of the country is of itself competent and compleat.
From this view of the subject it must be evident that, although the executive may be a convenient organ of preliminary communications with foreign governments on the subjects of treaty or war, and the proper agent for carrying into execution the final determinations of the competent authority, yet it can have no pretensions from the nature of the powers in question compared with the nature of the executive trust, to that essential agency which gives validity to such determinations.
It must be further evident that, if these powers be not in their nature purely legislative, they partake so much more of that than of any other quality, that under a constitution leaving them to result to their most natural department, the legislature would be without a rival in its claim.
Another important inference to be noted is, that the powers of making war and treaty being substantially of a legislative, not an executive nature, the rule of interpreting exceptions strictly must narrow instead of enlarging executive pretensions on those subjects.
3. It remains to be enquired whether there be any thing in the constitution itself which shows that the powers of making war and peace are considered as of an executive nature and as comprehended within a general grant of executive power.
It will not be pretended that this appears from any direct position to be found in the instrument.
If it were deducible from any particular expressions it may be presumed that the publication would have saved us the trouble of the research.
Does the doctrine then result from the actual distribution of powers among the several branches of the government? Or from any fair analogy between the powers of war and treaty and the enumerated powers vested in the executive alone?
Let us examine.
In the general distribution of powers, we find that of declaring war expressly vested in the Congress, where every other legislative power is declared to be vested, and without any other qualification than what is common to every other legislative act. The constitutional idea of this power would seem then clearly to be that it is of a legislative and not an executive nature.
This conclusion becomes irresistible when it is recollected that the constitution cannot be supposed to have placed either any power legislative in its nature entirely among executive powers or any power executive in its nature entirely among legislative powers, without charging the constitution with that kind of intermixture and consolidation of different powers which would violate a fundamental principle in the organization of free governments. If it were not unnecessary to enlarge on this topic here, it could be shown that the constitution was originally vindicated, and has been constantly expounded, with a disavowal of any such intermixture.
The power of treaties is vested jointly in the President and in the Senate, which is a branch of the legislature. From this arrangement merely, there can be no inference that would necessarily exclude the power from the executive class: since the Senate is joined with the President in another power, that of appointing to offices, which as far as relate to executive offices at least, is considered as of an executive nature. Yet on the other hand, there are sufficient indications that the power of treaties is regarded by the constitution as materially different from mere executive power and as having more affinity to the legislative than to the executive character.
One circumstance indicating this is the constitutional regulation under which the Senate give their consent in the case of treaties. In all other cases the consent of the body is expressed by a majority of voices. In this particular case, a concurrence of two thirds at least is made necessary, as a substitute or compensation for the other branch of the legislature, which on certain occasions could not be conveniently a party to the transaction.
But the conclusive circumstance is that treaties, when formed according to the constitutional mode, are confessedly to have the force and operation of laws, and are to be a rule for the courts in controversies between man and man, as much as any other laws. They are even emphatically declared by the constitution to be “the supreme law of the land.”
So far the argument from the constitution is precisely in opposition to the doctrine. As little will be gained in its favor from a comparison of the two powers with those particularly vested in the President alone.
As there are but few it will be most satisfactory to review them one by one.
“The President shall be commander in chief of the army and navy of the United States, and of the militia when called into the actual service of the United States.”
There can be no relation worth examining between this power and the general power of making treaties. And instead of being analogous to the power of declaring war, it affords a striking illustration of the incompatibility of the two powers in the same hands. Those who are to conduct a war cannot in the nature of things be proper or safe judges whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.
“He may require the opinion in writing of the principal officers in each of the executive departments upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offences against the United States, except in case of impeachment.” These powers can have nothing to do with the subject.
“The President shall have power to fill up vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of the next session.” The same remark is applicable to this power, as also to that of “receiving ambassadors, other public ministers and consuls.” The particular use attempted to be made of this last power will be considered in another place.
“He shall take care that the laws shall be faithfully executed and shall commission all officers of the United States.” To see the laws faithfully executed constitutes the essence of the executive authority. But what relation has it to the power of making treaties and war, that is, of determining what the laws shall be with regard to other nations? No other certainly than what subsists between the powers of executing and enacting laws; no other consequently, than what forbids a coalition of the powers in the same department.
I pass over the few other specified functions assigned to the President, such as that of convening of the legislature, &c. &c., which cannot be drawn into the present question.
It may be proper however to take notice of the power of removal from office, which appears to have been adjudged to the President by the laws establishing the executive departments; and which the writer has endeavoured to press into his service. To justify any favorable inference from this case, it must be shown that the powers of war and treaties are of a kindred nature to the power of removal, or at least are equally within a grant of executive power. Nothing of this sort has been attempted, nor probably will be attempted. Nothing can in truth be clearer than that no analogy, or shade of analogy, can be traced between a power in the supreme officer responsible for the faithful execution of the laws to displace a subaltern officer employed in the execution of the laws; and a power to make treaties, and to declare war, such as these have been found to be in their nature, their operation, and their consequences.
Thus it appears that by whatever standard we try this doctrine, it must be condemned as no less vicious in theory than it would be dangerous in practice. It is countenanced neither by the writers on law, not by the nature of the powers themselves, not by any general arrangements or particular expressions, or plausible analogies, to be found in the constitution.
Whence then can the writer have borrowed it?
There is but one answer to this question.
The power of making treaties and the power of declaring war are royal prerogatives in the British government, and are accordingly treated as Executive prerogatives by British commentators.
We shall be the more confirmed in the necessity of this solution of the problem by looking back to the era of the constitution and satisfying ourselves that the writer could not have been misled by the doctrines maintained by our own commentators on our own government. That I may not ramble beyond prescribed limits, I shall content myself with an extract from a work which entered into a systematic explanation and defence of the constitution, and to which there has frequently been ascribed some influence in conciliating the public assent to the government in the form proposed. Three circumstances conspire in giving weight to this cotemporary exposition. It was made at a time when no application to persons or measures could bias; the opinion given was not transiently mentioned, but formally and critically elucidated; it related to a point in the constitution which must consequently have been viewed as of importance in the public mind. The passage relates to the power of making treaties, that of declaring war being arranged with such obvious propriety among the legislative powers as to be passed over without particular discussion.
“Tho’ several writers on the subject of government place that power (of making treaties) in the class of Executive authorities, yet this is evidently an arbitrary disposition. For if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws; or in other words, to prescribe rules for the regulation of the society. While the execution of the laws and the employment of the common strength, either for this purpose, or for the common defence, seem to comprize all the functions of the Executive magistrate. The power of making treaties is plainly neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones, and still less to an exertion of the common strength. Its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong properly neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations point out the executive as the most fit agent in those transactions: whilst the vast importance of the trust, and the operation of treaties as Laws, plead strongly for the participation of the whole or a part of the legislative body in the office of making them.” Federalist vol. 2. p. 273.
It will not fail to be remarked on this commentary that, whatever doubts may be started as to the correctness of its reasoning against the legislative nature of the power to make treaties, it is clear,consistent and confident, in deciding that the power is plainly and evidently not an executive power.
james madison “Helvidius,” No. 4 14 September 1793
The last papers completed the view proposed to be taken of the arguments in support of the new and aspiring doctrine which ascribes to the executive the prerogative of judging and deciding whether there be causes of war or not in the obligations of treaties, notwithstanding the express provision in the constitution by which the legislature is made the organ of the national will on questions whether there be or be not a cause for declaring war. If the answer to these arguments has imparted the conviction which dictated it, the reader will have pronounced that they are generally superficial, abounding in contradictions, never in the least degree conclusive to the main point, and not unfrequently conclusive against the writer himself; whilst the doctrine—that the powers of treaty and war are in their nature executive powers—which forms the basis of those arguments, is as indefensible and as dangerous as the particular doctrine to which they are applied.
But it is not to be forgotten that these doctrines, though ever so clearly disproved, or ever so weakly defended, remain before the public a striking monument of the principles and views which are entertained and propagated in the community.
It is also to be remembered that, however the consequences flowing from such premises may be disavowed at this time or by this individual, we are to regard it as morally certain that in proportion as the doctrines make their way into the creed of the government and the acquiescence of the public, every power that can be deduced from them will be deduced and exercised sooner or later by those who may have an interest in so doing. The character of human nature gives this salutary warning to every sober and reflecting mind. And the history of government, in all its forms and in every period of time, ratifies the danger. A people, therefore, who are so happy as to possess the inestimable blessing of a free and defined constitution cannot be too watchful against the introduction, nor too critical in tracing the consequences, of new principles and new constructions that may remove the landmarks of power.
Should the prerogative which has been examined be allowed in its most limited sense to usurp the public countenance, the interval would probably be very short before it would be heard from some quarter or other that the prerogative either amounts to nothing, or means a right to judge and conclude that the obligations of treaty impose war, as well as that they permit peace. That it is fair reasoning to say that if the prerogative exists at all, an operative rather than an inert character ought to be given to it.
In support of this conclusion, there could be enough to echo “that the prerogative in this active sense, is connected with the executive in various capacities—as the organ of intercourse between the nation and foreign nations—as the interpreter of national treaties” (a violation of which may be a cause of war) “as that power which is charged with the execution of the laws of which treaties make a part—as that power which is charged with the command and application of the public force.”
With additional force, it might be said, that the executive is as much the executor as the interpreter of treaties: that if by virtue of the first character it is to judge of the obligations of treaties, it is by virtue of the second equally authorized to carry those obligations into effect. Should there occur, for example, a casus federis claiming a military co-operation of the United States, and a military force should happen to be under the command of the executive, it must have the same right as executor of public treaties to employ the public force as it has in quality of interpreter of public treaties to decide whether it ought to be employed.
The case of a treaty of peace would be an auxiliary to comments of this sort. It is a condition annexed to every treaty that an infraction even of an important article on one side extinguishes the obligations on the other: and the immediate consequence of a dissolution of a treaty of peace is a restoration of a state of war. If the executive is “to decide on the obligation of the nation with regard to foreign nations”—“to pronounce the existing condition (in the sense annexed by the writer) of the nation with regard to them; and to admonish the citizens of their obligations and duties as founded upon that condition of things”—“to judge what are the reciprocal rights and obligations of the United States, and of all and each of the powers at war”:—add, that if the executive moreover possesses all powers relating to war not strictly within the power to declare war, which any pupil of political casuistry could distinguish from a mere relapse into a war that had been declared: With this store of materials and the example given of the use to be made of them, would it be difficult to fabricate a power in the executive to plunge the nation into war whenever a treaty of peace might happen to be infringed?
But if any difficulty should arise, there is another mode chalked out by which the end might clearly be brought about, even without the violation of the treaty of peace; especially if the other party should happen to change its government at the crisis. The executive, in the case, could suspend the treaty of peace by refusing to receive an ambassador from the new government, and the state of war emerges of course.
This is a sample of the use to which the extraordinary publications we are reviewing might be turned. Some of the inferences could not be repelled at all. And the least regular of them must go smoothly down with those who had swallowed the gross sophistry which wrapped up the original dose.
Every just view that can be taken of this subject admonishes the public of the necessity of a rigid adherence to the simple, the received and the fundamental doctrine of the constitution, that the power to declare war including the power of judging of the causes of war is fully and exclusively vested in the legislature: that the executive has no right in any case to decide the question whether there is or is not cause for declaring war: that the right of convening and informing Congress, whenever such a question seems to call for a decision, is all the right which the constitution has deemed requisite or proper: and that for such more than for any other contingency, this right was specially given to the executive.
In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture of heterogeneous powers, the trust and the temptation would be too great for any one man: not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war a physical force is to be created, and it is the executive will which is to direct it. In war the public treasures are to be unlocked, and it is the executive hand which is to dispense them. In war the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast, ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.
Hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.
As the best praise then that can be pronounced on an executive magistrate is that he is the friend of peace, a praise that rises in its value as there may be a known capacity to shine in war, so it must be one of the most sacred duties of a free people to mark the first omen in the society of principles that may stimulate the hopes of other magistrates of another propensity, to intrude into questions on which its gratification depends. If a free people be a wise people also, they will not forget that the danger of surprise can never be so great as when the advocates for the prerogative of war can sheathe it in a symbol of peace.
The constitution has manifested a similar prudence in refusing to the executive the sole power of making peace. The trust in this instance also would be too great for the wisdom, and the temptations too strong for the virtue, of a single citizen. The principal reasons on which the constitution proceeded in its regulation of the power of treaties, including treaties of peace, are so aptly furnished by the work already quoted more than once, that I shall borrow another comment from that source.
“However proper or safe it may be in a government where the executive magistrate is an hereditary monarch to commit to him the entire power of making treaties, it would be utterly unsafe and improper to entrust that power to an elective magistrate of four years duration. It has been remarked upon another occasion, and the remark is unquestionably just, that a hereditary monarch, though often the oppressor of his people, has personally too much at stake in the government to be in any material danger of being corrupted by foreign powers. But that a man raised from the station of a private citizen to the rank of chief magistrate, possessed of but a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interest of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind as those which concern its intercourse with the rest of the world to the sole disposal of a magistrate, created and circmstanced, as would be a President of the United States.”
I shall conclude this paper and this branch of the subject with two reflections which naturally arise from this view of the Constitution.
The first is that, as the personal interest of a hereditary monarch in the government is the only security against the temptation incident to a commitment of the delicate and momentous interests of the nation which concern its intercourse with the rest of the world to the disposal of a single magistrate, it is a plain consequence that every addition that may be made to the sole agency and influence of the Executive in the intercourse of the nation with foreign nations is an increase of the dangerous temptation to which an elective and temporary magistrate is exposed; and an argument and advance towards the security afforded by the personal interest of a hereditary magistrate.
Secondly, as the constitution has not permitted the Executive singly to conclude or judge that peace ought to be made, it might be inferred from that circumstance alone that it never meant to give it authority, singly, to judge and conclude that war ought not to be made. The trust would be precisely similar and equivalent in the two cases. The right to say that war ought not to go on would be no greater than the right to say that war ought to begin. Every danger of error or corruption incident to such a prerogative in one case, is incident to it in the other. If the Constitution therefore has deemed it unsafe or improper in the one case, it must be deemed equally so in the other case.
Commerce and Seizures
France and Britain both intended to deny the other the benefits of neutral commerce; and during 1793, seizures of American vessels posed an increasing problem, especially with Great Britain. Partly as a consequence of this and partly as a consequence of their continuing disgust with British commercial restrictions and British domination of the American import trade, Jefferson and Madison determined to renew the old campaign for commercial discrimination. On 16 December 1793, two weeks before retiring from his position as secretary of state, Jefferson delivered to the first session of the Third Congress a huge “Report on the Privileges and Restrictions on the Commerce of the United States with Foreign Countries,” comparing British policies unfavorably with those of France. Madison followed up, in January 1794, by introducing seven resolutions to retaliate against Great Britain’s mercantilistic regulations. Events defeated him again. By early March, the British had seized some 250 U.S. vessels trading with the French West Indies. The Republicans in Congress moved behind a bill to introduce nonintercourse with Britain and a measure to sequester British debts. The Federalists preferred a final effort to negotiate the crisis, accompanied by measures to bolster the national defenses. Madison’s resolutions were dropped. John Adams cast a tie-breaking vote defeating nonintercourse in the Senate. On 16 April 1794, Washington nominated Chief Justice John Jay to make a final effort at a diplomatic resolution of the crisis.
william loughton smith Speech in the House of Representatives 13 January 1794
The most effective speech against Madison’s resolutions was delivered by his old foe, William Loughton Smith of South Carolina. In his biography of Hamilton, however, John C. Hamilton reported that the speech was drafted by his father.
The House again resolved itself into a Committee of the Whole House on the Report of the Secretary of State on the Privileges and Restrictions on the Commerce of the United States in Foreign Countries. When
Mr. Smith, of South Carolina, rose and addressed the Chair as follows:
Mr. Chairman:—Among the various duties which are assigned by the Constitution to the Legislature of the United States, there is, perhaps, none of a more important nature than the regulation of commerce, none more generally interesting to our fellow-citizens, none which more seriously claims our diligent and accurate investigation… .
It will not be denied that this country is at present in a very delicate crisis, and one requiring dispassionate reflection, cool and mature deliberation. It will be much to be regretted then, if passion should usurp the place of reason, if superficial, narrow, and prejudiced views should mislead the public councils from the true path of national interest.
The report of the Secretary of State … (whatever may have been the design of the reporter) appears … to induce a false estimate of the comparative condition of our commerce with certain foreign nations, and to urge the Legislature to adopt a scheme of retaliating regulations, restrictions, and exclusions.
The most striking contrast which the performance evidently aims at is between Great Britain and France. For this reason, and as these are the two powers with whom we have the most extensive relations in trade, I shall, by a particular investigation of the subject, endeavor to lay before the Committee an accurate and an impartial comparison of the commercial systems of the two countries in reference to the United States, as a test of the solidity of the inferences which are attempted to be established by the report. A fair comparison can only be made with an eye to what may be deemed the permanent system of the countries in question. The proper epoch for it, therefore, will precede the commencement of the pending French Revolution.
The commercial regulations of France during the period of the Revolution have been too fluctuating, too much influenced by momentary impulses, and, as far as they have looked towards this country with a favorable eye, too much manifesting an object of the moment … to consider them as a part of a system. But though the comparison will be made with principal reference to the condition of our trade with France and Great Britain antecedent to the existing revolution, the regulations of the subsequent period will perhaps not be passed over altogether unnoticed.
The table which I have before me comprises the principal features of the subject within a short compass. It is the work of a gentleman of considerable commercial knowledge, and I believe may be relied on for its correctness… .
Accustomed as our ears have been to a constant panegyric on the generous policy of France towards this country in commercial relations and to as constant a philippic on the unfriendly, illiberal, and persecuting policy of Great Britain towards us in the same relations, we naturally expect to find in a table which exhibits their respective systems numerous discriminations in that of France in our favor and many valuable privileges granted to us which are refused to other foreign countries, in that of Great Britain frequent discriminations to our prejudice and a variety of privileges refused to us which are granted to other foreign nations. But an inspection of the table will satisfy every candid mind that the reverse of what has been supposed is truly the case—that neither in France nor the French West Indies is there more than one solitary and important distinction in our favor (I mean the article of fish oil) either with regard to our exports thither, our imports from thence, or our shipping; that both in Great Britain and the British West Indies there are several material distinctions in our favor with regard both to our exports thither and to our imports from thence, and, as it respects Great Britain, with regard also to our shipping; that in the market of Great Britain, a preference is secured to six of our most valuable staples by considerably higher duties on the rival articles of other foreign countries; that our navigation thither is favored by our ships, when carrying our own productions, being put upon as good a footing as their own ships, and by the exemption of several of our productions, when carried in our ships, from duties which are paid on the like articles of other foreign countries carried in the ships of those countries; and that several of our productions may be carried from the United States to the British West Indies, while the like productions cannot be carried thither from any other foreign country; and that several of the productions of those countries may be brought from thence to the United States, which cannot be carried from thence to any other foreign country… .
[Smith then proceeded, item by item, to compare French and British regulations affecting American exports (flour, tobacco, rice, wood, fish, salted meats, etc.), arguing that, in the great majority of cases, British regulations were more favorable to American products than were those of France. He next observed that three-fourths of America’s imports came from Britain and its dominions—some seven and one-half times the dollar value as came from France. This, he said, was not a grievance but a natural consequence of Britain’s ability to “supply us with the greatest number of the articles we want, on the best terms.” It could not be changed except by an effective system of encouraging home manufactures or “by means violent and contrary to our interests”: premiums for imports from other countries or higher duties on British goods “at the expense of the people of the United States.” Turning finally to a comparison of French and British treatment of American shipping, he admitted that French regulations were generally more favorable than those of Britain: American ships carrying American products directly to Great Britain were treated more favorably than those of any other nation, which was not the case in France; but American ships were not permitted to carry the products of other nations to Britain, and Britain excluded American ships from the British West Indies, whereas France admitted American vessels of sixty tons or more. He insisted, nevertheless, that both nations “aimed at securing the greatest possible portion of benefit to themselves, with no greater concession to our interests than was supposed to coincide with their own,” that there were no grounds for extolling the policies of one of them or denouncing those of the other.]
… The system of every country is selfish according to its circumstances and contains all those restrictions and exclusions which it deems useful to its own interest. Besides this, a desire to secure to the mother country a monopoly of the trade of its colonies is a predominant feature in the system of almost every country in Europe. Nor is it without foundation in reason. Colonies, especially small islands, are usually maintained and defended at the expense of the mother country, and it seems a natural recompense for that service that the mother country should enjoy, exclusively of other nations, the benefit of trade with its colonies. This was thought reasonable by the United States while colonies even after their disputes on the point of taxation had begun; and however the question may stand between the mother country and its colonies, between the former and foreign nations, it is not easy to see how the equity of the exclusion can be contested. At any rate, its being the most prevailing system of nations having colonies, there is no room for acrimony against a particular one that pursues it. This ought not to dissuade the United States from availing itself of every just and proper influence to gain admission into the colony trade of the nations concerned; but this object ought to be pursued with moderation, not under the instigation of a sense of injury, but on the ground of temperate negotiation and reasonable equivalent.
These observations ought to produce two effects: to moderate our resentments against particular nations and our partialities for others, and to evince the impracticability and Quixotism of an attempt by violence, on the part of this young country, to break through the fetters which the universal policy of nations imposes on their intercourse with each other… .
The Secretary of State, after pointing out the exclusions, restrictions, and burdens which prevent our enjoying all the advantages which we could desire in the trade with foreign countries, proceeds to indicate the remedies; these are counter-exclusions, restrictions, and burdens.
The reason of the thing and the general observations of the Secretary of State would extend the regulations to be adopted to all the nations with whom we have connexions in trade; but his conclusion would seem to confine them to Great Britain, on the suggestion that she alone has declined friendly arrangements by treaty, and that there is no reason to conclude that friendly arrangements would be declined by other nations… .
Why, then, is Great Britain selected, but that it is most in unison with our passions to enter into collisions with her?
If retaliations for restrictions, exclusions, and burdens are to take place, they ought to be dealt out, with a proportional hand, to all those from whom they are experienced. This, justice and an inoffensive conduct require. If, suffering equal impediments to our trade from one power as another, we retaliate on one and not on another, we manifest that we are governed by a spirit of hostility towards the power against whom our retaliation is directed, and we ought to count upon a reciprocation of that spirit. If, suffering fewer from one than from another, we retaliate only on that party from whom we suffer least, the spirit of enmity by which we were actuated becomes more unequivocal. If, receiving a positively better treatment from one than another, we deal most harshly towards that power which treats us best, will it be an evidence either of justice or moderation? Will it not be a proof either of caprice or of a hatred and aversion of a nature to overrule the considerations both of equity and prudence? …
Whatever may be the motive, the operation may clearly be pronounced to be a phenomenon in political history—a government attempting to aid commerce by throwing it into confusion; by obstructing the most precious channels in which it flows, under the pretence of making it flow more freely; by damming up the best outlet for the surplus commodities of the country and the best inlet for the supplies of which it stands in need; by disturbing, without temptation, a beneficial course of things, in an experiment precarious, if not desperate; by arresting the current of a prosperous and progressive navigation to transfer it to other countries, and by making all this wild work in the blameable, but feeble attempt to build up the manufactures and trade of another country at the expense of the United States… .
It is a project calculated to disturb the existing course of three-fourths of our import trade, two-fifths of our export trade, and the means on which depend two-thirds, at least, of our revenues.
To be politic, therefore, it ought to unite these different ingredients:
First. An object of adequate utility to the country.
Second. A moral certainty, at least, of success.
Third. An assurance that the advantage likely to be obtained is not overbalanced by the inconveniences likely to be incurred, and as an equivalent for the jeopardy to which advantages in our possession are exposed.
1st. The direct object professed to be aimed at is a freer trade with Great Britain and access to her West India Islands, in our own ships. A collateral one, the success of which seems most relied on, is to transfer a part of our too great trade with Great Britain to other nations, particularly France.
The first is no doubt an object of real magnitude, worthy of every reasonable and promising exertion. The second, in the single light of obviating a too great dependence for supply on one nation, is not unworthy of attention, but, as before observed, it ought only to be aimed at by expedients neither embarrassing nor expensive; it is a very insufficient object to be pursued either at hazard or expense to the people of the United States. It has been already shown, that to pursue it, either by prohibitions or partial increase of duties, would be a costly undertaking to this country.
2nd. The second ingredient is, “a moral certainty of success.” The argument used to prove the probability, nay, the certainty of success, is this: the United States are a most important customer to Great Britain; they now take off near three millions in her manufactures, and by the progress of their population, which is likely to exceed that of their manufactures, the probability is that their importance as a customer will increase every year; their importance to Great Britain, as a source of supply, is not less than as a customer for her manufactures; the articles with which they furnish her, are those of prime necessity, consisting of the means of subsistence and the materials for ship-building and manufactures, while the articles we derive from her are mostly those of convenience and luxury; her supplies to us are therefore less useful than ours to her; that it would be contrary to all good policy in Great Britain to hazard the turning of a commerce so beneficial into other channels; besides all this, Great Britain is immersed in debt and in a state of decrepitude; derangement of our commerce with her would endanger a shock to the whole fabric of her credit, and by affecting injuriously the interests of a great portion of her mercantile body, and by throwing out of employ a large number of her manufacturers, would raise a clamor against the Ministry too loud and too extensive to be resisted; and that they would consequently be compelled, by the weight of these considerations to yield to our wishes.
It is as great an error in the councils of a country to over-rate as to under-rate its importance. The foregoing argument does this, and it does it in defiance of experience. Similar arguments were formerly used in favor of a non-importation scheme; the same consequences now foretold were then predicted in the most sanguine manner; but the prediction was not fulfilled. This it would seem, ought to be a caution to us now, and ought to warn us against relying upon the like effects, promised from a measure of much less force, namely, an increase of duties.
If our calculations are made on the ordinary course of the human passions, or on a just estimate of relative advantages for the contest proposed, we shall not be sanguine in expecting that the victory will be readily yielded to us, or that it will be easily obtained.
The Navigation Act of Great Britain, the principles of which exclude us from the advantages we wish to enjoy, is deemed by English politicians as the palladium of her riches, greatness, and security.
After having cherished it for such a long succession of years, after having repeatedly hazarded much for the maintenance of it, with so strong a conviction of its immense importance, is it at all probable that she would surrender it to us without a struggle—that she would permit us to extort the abandonment of it from her without a serious trial of strength?
Prejudices riveted by time and habit, opinions fixed by long experience of advantages, a sense of interest, irritated pride, a spirit of resentment at the attempt, all these strong circumstances would undoubtedly prompt to resistance. It would be felt that if a concession were made to us upon the strength of endeavors to extort it, the whole system must be renounced; it would be perceived that the way having been once successfully pointed out to other nations, would not fail to be followed, and that a surrender to one would be a surrender to all.
Resistance, therefore, would certainly follow in one or other mode, a war of arms or of commercial regulations.
If the first should be determined upon, it would not be difficult for Great Britain to persuade the other powers with whom she is united that they ought to make common cause with her. She would represent that our regulations were in fact only a covert method of taking part in the war by embarrassing her, and that it was the interest of the cause in which they were combined to frustrate our attempts.
If war could be foreseen as the certain consequence of the experiment proposed to be made, no arguments would be necessary to dissuade from it. Everybody would be sensible that more was to be lost than gained, and that so great a hazard ought not to be run.
But we are assured that there is no danger of this consequence, that no nation would have a right to take umbrage at any regulations we should adopt with regard to our own trade, and that Great Britain would take care how she put to risk so much as she would hazard by a quarrel with us.
All this is far more plausible than solid. Experience has proved to us that the councils of that country are influenced by passion as well as our own. If we should seize the present moment to attack her in a point where she is peculiarly susceptible, she would be apt to regard it as a mark of determined hostility. This would naturally tend to kindle those sparks of enmity which are alleged to exist on her side. War is as often the result of resentment as of calculation. A direct and immediate war between us would not be surprising; but if this should not take place, mutual ill offices and irritations, which naturally grow out of such a state of things, would be apt quickly to lead to it. Insults and aggressions might become so multiplied and open as not to permit forbearance on either side… .
Let us, however, take it for granted that she would prefer the other course, that of retaliating regulations; how will the contest stand? The proportion of the whole exports of Great Britain which comes to the United States is about one-fifth; the proportion of our exports which goes to Great Britain is about one-eighth of the whole amount of her imports. Taking the mean of these proportions of imports and exports, the proportion which our trade with Great Britain bears to the totality of her trade is about one-sixth.
The proportion of imports from the dominions of Great Britain into the United States may be stated at three-fourths of our whole importation; the proportion which our exports to the same dominions bears to our total exportation may be stated at two-fifths; taking the mean of those two, the proportion which our trade with Great Britain bears to our whole trade is something more than one-half.
This much greater proportional derangement of our trade than of hers by a contest is a mathematical demonstration that the contest would be unequal on our part; that we should put more to hazard than Great Britain would do; should be likely to suffer greater inconvenience than her, and consequently (the resolution and perseverance of the two parties being supposed equal) would be soonest induced to abandon the contest… .
The main argument for the chance of success is that our supplies to Great Britain are more necessary to her than hers to us. But this is a position which our self-love gives more credit to than facts will altogether authorize. Well-informed men in other countries (whose opportu-nities of information are at least as good as ours) affirm that Great Britain can obtain a supply of most of the articles she obtains from us as cheap and of as good a quality elsewhere, with only two exceptions, namely, tobacco and grain, and the latter is only occasionally wanted; a considerable substitute for our tobacco, though not of equal quality, may be had elsewhere; and even admitting this position to be too strongly stated, yet there is no good reason to doubt that it is in a great degree true. The colonies of the different European powers on this continent, some countries on the Mediterranean, and the northern countries of Europe, are in situations adapted to becoming our competitors.
On the other hand, the manufactured articles which we do not make ourselves (the greatest part of which are, in civilized countries, necessaries) are as important to us as our materials for manufacture (the only articles for which her demand is constant) are to Great Britain. The position is as true that no other nation can supply us as well as that country with several essential articles which we want, as that no nation can supply her equally well with certain articles which she takes from us; and as to other articles of subsistence, it is certain that our demand for manufactured supplies is more constantly urgent than her demand for those articles. Where, indeed, shall we find a substitute for the vast supply of manufactures which we get from that country? No gentleman will say that we can suddenly replace them by our manufactures, or that this, if practicable, could be done without a violent distortion of the natural course of our industry. A substitute of our own being out of the question, where else shall we find one?
France was the power which could best have filled any chasm that might have been created. But this is no longer the case. It is undeniable that the money capitals of that country have been essentially destroyed; that manufacturing establishments, except those for war, have been essentially deranged. The destruction to which Lyons appears to be doomed is a severe blow to the manufactures of France; that city, second in importance, in all respects, was perhaps the first in manufacturing impor-tance. It is more than probable that France, for years to come, will herself want a foreign supply of manufactured articles… .
james madison Speech in the House of Representatives 14 January 1794
The House again resolved itself into a Committee of the Whole House on the Report of the Secretary of State … when Mr. Madison rose in reply to Mr. Smith. … The propositions immediately before the committee turned on the question whether any thing ought to be done at this time, in the way of commercial regulations, towards vindicating and advancing our national interests. Perhaps it might be made a question with some whether, in any case, legislative regulations of commerce were consistent with its nature and prosperity.
He professed himself to be a friend to the theory which gives to industry a free course, under the impulse of individual interest and the guidance of individual sagacity. He was persuaded that it would be happy for all nations if the barriers erected by prejudice, by avarice, and by despotism were broken down and a free intercourse established among them. Yet to this, as to all other general rules, there might be exceptions. And the rule itself required, what did not exist, that it should be general… .
This subject, as had been remarked on a former occasion, was not a novel one. It was co-eval with our political birth and has at all times exercised the thoughts of reflecting citizens. As early as the year succeeding the peace, the effect of the foreign policy which began to be felt in our trade and navigation excited universal attention and inquietude. The first effort thought of was an application of Congress to the states for a grant of power for a limited time to regulate our foreign commerce, with a view to control the influence of unfavorable regulations in some cases and to conciliate an extension of favorable ones in others. From some circumstances then incident to our situation, and particularly from a radical vice in the then political system of the United States, the experiment did not take effect.
The states next endeavored to effect their purpose by separate but concurrent regulations. Massachusetts opened a correspondence with Virginia and other states in order to bring about the plan. Here again the effort was abortive. Out of this experience grew the measures which terminated in the establishment of a government competent to the regulation of our commercial interests and the vindication of our commercial rights.
As these were the first objects of the people in the steps taken for establishing the present government, they were universally expected to be among the first fruits of its operation. In this expectation the public were disappointed. An attempt was made in different forms and received the repeated sanction of this branch of the legislature, but they expired in the Senate. Not indeed, as was alledged, from a dislike to the attempt altogether, but the modifications given to it. It has not appeared, however, that it was ever renewed in a different form in that house; & for some time it has been allowed to sleep in both.
If the reasons which originally prevailed against measures such as those now proposed had weight in them, they can no longer furnish a pretext for opposition.
When the subject was discussed in the first Congress at New-York, it was said that we ought to try the effect of a generous policy towards Great-Britain; that we ought to give time for negotiating a treaty of commerce; that we ought to await the close of negotiations for explaining and executing the treaty of peace. We have now waited a term of more than four years. The treaty of peace remains unexecuted on her part, tho’ all pretext for delay has been removed by the steps taken on ours. No treaty of commerce is either in train or in prospect. Instead of relaxations in former articles complained of, we suffer new and aggravated violations of our rights.
In the view which he took of the subject, he called the attention of the committee particularly to the subject of navigation, of manufactures, and of the discrimination proposed in the motion between some nations and others.
On the subject of navigation, he observed that we were prohibited by the British laws from carrying to Great-Britain the produce of other countries from their ports, or our own produce from the ports of other countries, or the produce of other countries from our own ports, or to send our own produce from our own or other ports in the vessels of other countries. This last restriction was, he observed, felt by the United States at the present moment. It was indeed the practice of Great-Britain sometimes to relax her navigation act so far in time of war as to permit to neutral vessels a circuitous carriage; but as yet the act was in full force against the use of them for transporting the produce of the United States.
On the other hand, the laws of the United States allowed Great-Britain to bring into their ports any thing she might please, from her own or from other ports, and in her own or in other vessels.
In the trade between the United States and the British West-Indies, the vessels of the former were under an absolute prohibition, whilst British vessels in that trade enjoyed all the privileges granted to other, even the most favored, nations in their trade with us. The inequality in this case was the more striking as it was evident that the West-Indies were dependent on the United States for the supplies essential to them, and that the circumstances which secured to the United States this advantage enabled their vessels to transport the supplies on far better terms than could be done by British vessels.
To illustrate the policy requisite in our commercial intercourse with other nations, he presented a comparative view of the American and foreign tonnage employed in the respective branches of it, from which it appeared that the foreign stood to the American as follows—
It results from these facts that in proportion as the trade might be diminished with Great-Britain and increased with other nations, would be the probable increase of the American tonnage. It appeared, for example, that as the trade might pass from British channels into those of France it would augment our tonnage at the rate of ten to one… .
Such a disproportion, taking even the reduced one, in the navigation with Great-Britain was the more mortifying when the nature and amount of our exports are considered. Our exports are not only for the most part either immediately necessaries of life or … necessaries of employment and life to manufacturers, and must thence command a sure market wherever they are received at all. But the peculiar bulkiness of them furnishes an advantage over the exports of every other country, and particularly over those of Great-Britain. … The bulk of her exports to us compared with that of ours to her is as nothing. An inconsiderable quantity of shipping would suffice for hers, whilst ours can load about 222,000 tons. Including the articles she exports from the West-Indies to this country, they bear no proportion to ours. Yet in the entire trade between the United States and the British dominions, her tonnage is to that of the United States as 156,000, employing 9,360 seamen, to 66,000, employing 3,690 seamen. Were a rigid exertion of our right to take place, it would extend our tonnage to 222,000, and leave to G.B. employment for much less than the actual share now enjoyed by the United States. It could not be wished to push matters to this extremity. It showed, however, the very unequal and unfavorable footing on which the carrying trade, the great resource of our safety and respectability, was placed by foreign regulations, and the reasonableness of peaceable attempts to meliorate it. We might at least, in availing ourselves of the merit of our exports, contend for such regulations as would reverse the proportion and give the United States the 156,000 tonnage and 9,360 seamen, instead of the 66,000 tonnage and 3,690 seamen… .
It was not the imports but exports that regulated the quantity of tonnage. What was imported in American vessels, which would otherwise return empty, was no doubt a benefit to the American merchant, but could slightly only, if at all, increase the mass of our tonnage. The way to effect this was to secure exportations to American bottoms.
Proceeding to the subject of manufactures, he observed that it presented no compensations for the inequalities in the principles and effects of the navigation system.
We consume British manufactures to double the amount of what Britain takes from us; and quadruple the amount of what she actually consumes.
We take everything after it has undergone all the profitable labor that can be bestowed on it. She receives, in return, raw materials, the food of her industry.
We send necessaries to her. She sends superfluities to us.
We admit every thing she pleases to send us, whether of her own or alien production. She refuses not only our manufactures, but the articles we wish most to send her; our wheat and flour, our fish, and our salted provisions. These constitute our best staples for exportation, as her manufactures constitute hers.
It appeared by an authentic document he had examined that of the manufactured articles imported in 1790, amounting to 15,295,638 dollars 97 cents, we received from and thro’ Great-Britain, 13,965,464 dollars 95 cents.
During the same year, the manufactures imported from France, the next great commercial country, and consuming more of our produce than Great-Britain, amounted to no more than 155,136 dollars and 63 cents.
To give a fuller view of our foreign commerce, he stated the balances with the several nations of Europe and their dominions as follow:
This enormous balance to G.B. is on the exports to her. On her consumption the balance is still greater, amounting to nine or ten millions, to which again is to be added her profits on the re-exports in a manufactured and raw state.
It might be said that an unfavorable balance was no proof of an unfavorable trade, that the only important balance was the ultimate one on our aggregate commerce.
That there was much truth in this general doctrine was admitted, at the same time it was equally certain that there were exceptions to it, some of which were conceived to be applicable to the situation of the United States.
But whether the doctrine were just or not, as applied to the United States, it was well known that the reasoning and practice of other countries were governed by a contrary doctrine. In all of them, an unfavorable balance to be paid in specie was considered as an evil. Great-Britain in particular had always studied to prevent it as much as she could. What then may be the effect on the policy of a nation with which we have the most friendly and beneficial relations when it sees the balance of trade with us not only so much against her, but all the specie that pays it flowing immediately into the lap of her greatest rival, if not her most inveterate enemy.
As to the discrimination proposed between nations having and not having commercial treaties with us, the principle was embraced by the laws of most, if not all the states, whilst the regulation of trade was in their hands.
It had the repeated sanction of votes in the House of Representatives during the session of the present government at New-York.
It has been practiced by other nations, and in a late instance against the United States.
It tends to procure beneficial treaties from those who refuse them, by making them the price of enjoying an equality with other nations in our commerce.
It tends, as a conciliatory preference, to procure better treaties from those who have not refused them.
It was a prudent consideration, in dispensing commercial advantages, to favor rather those whose friendship and support may be expected in case of necessity than those whose disposition wore a contrary aspect. He did not wish to enter at present, nor at all, if unnecessary, into a display of the unfriendly features which marked the policy of Great-Britain towards the United States. He should be content to lay aside, at least for the present, the subject of the Indians, the Algerines, the spoliations, &c. but he could not forbear remarking, generally, that if that or any other nation were known to bear us a settled ill-will, nothing could be more impolitic than to foster resources which would be more likely to be turned against us than exerted in our favor.
It had been admitted by the gentleman who spoke yesterday (Mr. Smith of South Carolina) to be a misfortune that our trade should be so far engrossed by any one nation as it is in the hands of Great-Britain. But the gentleman added nothing to alleviate the misfortune when he advised us to make no efforts for putting an end to it. The evils resulting from such a state of things were as serious as they were numerous. To say nothing of sudden derangements from the caprice with which sovereigns might be seized, there were casualties which might not be avoidable. A general bankruptcy, which was a possible event, in a nation with which we were so connected, would reverberate upon us with a most dreadful shock. A partial bankruptcy had actually and lately taken place; and was severely felt in our commerce. War is a common event particularly to G. Britain and involves us in the embarrassments it brings on her commerce whilst ours is so disproportionately interwoven with it. Add the influence that may be conveyed into the public councils by a nation directing the course of our trade by her capital, & holding so great a share in our pecuniary institutions, and the effect that may finally ensue on our taste, our manners, and our form of government itself.
If the question be asked, what might be the consequence of counter-efforts, and whether this attempt to vindicate our public interests would not produce them? His answer was that he did not in the least apprehend such a consequence, as well because the measure afforded no pretext, being short of what was already done by Great-Britain in her commercial system, as because she would be the greatest sufferer from a stagnation of the trade between the two countries if she should force on such a crisis.
Her merchants would feel it. Her navigation would feel it. Her manufacturers would feel it. Her West-Indies would be ruined by it. Her revenue would deeply feel it. And her government would feel it thro’ every nerve of its operations. We too should suffer in some respects but in a less degree, and, if the virtue and temper of our fellow citizens were not mistaken, the experiment would find in them a far greater readiness to bear it. It was clear to him, therefore, that if Great-Britain should, contrary to all the rules of probability, stop the commerce between the two countries, the issue would be a complete triumph to the United States.
He dwelt particularly on the dependence of British manufactures on the market of the United States. He referred to a paper in Anderson’s History of Commerce, which states the amount of British manufactures at £51,310,000 sterling, and the number of souls employed in, and supported by them, at 5,250,000. Supposing the United States to consume two and a half millions of British manufactures, which is a moderate estimate, the loss of their market would deprive of subsistence 250,000 souls. Add 50,000 who depend for employment on our raw materials. Here are 300,000 souls who live by our custom. Let them be driven to poverty and despair by acts of their own government, and what would be the consequence? Most probably an acquisition of so many useful citizens to the United States, which form the natural asylum against the distresses of Europe. But whether they should remain in discontent and wretchedness in their own country or seek their fortunes in another, the evil would be felt by the British government as equally great, and be avoided with equal caution.
It might be regarded, he observed, as a general rule, that where one nation consumed the necessaries of life produced by another, the consuming nation was dependent on the producing one. On the other hand, where the consumption consisted of superfluities, the producing nation was dependent on the consuming one. The United States were in the fortunate situation of enjoying both these advantages over Great-Britain. They supply a part of her dominions with the necessaries of life. They consume superfluities which give bread to her people in another part. Great-Britain, therefore, is under a double dependence on the commerce of the United States. She depends on them for what she herself consumes; she depends on them for what they consume.
In proportion as a nation manufactures luxuries must be its disadvantage in contests of every sort with its customers. The reason is obvious. What is a luxury to the consumer is a necessary to the manufacturer. By changing a fashion, or disappointing a fancy only, bread may be taken from the mouths of thousands whose industry is devoted to the gratification of artificial wants.
He mentioned the case of a petition from a great body of buckle makers presented a few years ago to the Prince of Wales, complaining of the use of strings instead of buckles in the shoes and supplicating his royal highness, as giving the law to fashions, to save them from want and misery by discontinuing the new one. It was not, he observed, the prince who petitioned the manufacturers to continue to make the buckles, but the manufacturers who petitioned their customers to buy them. The relation was similar between the American customers and the British manufacturers. And if a law were to pass for putting a stop to the use of their superfluities, or a stop were otherwise to be put to it, it would quickly be seen from which the distress and supplications would flow.
Suppose that Great-Britain received from us alone the whole of the necessaries she consumes, and that our market alone took off the luxuries with which she paid for them. Here the dependence would be complete, and we might impose whatever terms we pleased on the exchange. This to be sure is not absolutely the case; but in proportion as it is the case, her dependence is on us.
The West-Indies, however, are an example of complete dependence. They cannot subsist without our food. They cannot flourish without our lumber and our use of their rum. On the other hand we depend on them for not a single necessary, and can supply ourselves with their luxuries from other sources. Sugar is the only article about which there was ever a question, and he was authorized to say that there was not at the most one sixth of our consumption supplied from the British islands.
In time of war or famine the dependence of the West-Indies is felt in all its energy. It is sometimes such as to appeal to our humanity as well as our interest for relief. At this moment, the governor of Jamaica is making proclamation of their distresses. If ever, therefore, there was a case where one country could dictate to another the regulations of trade between them, it is the case of the United States and the British West-Indies. And yet the gentleman from South Carolina (Mr. Smith) had considered it as a favor that we were allowed to send our provisions in British bottoms, & in these only, to the West-Indies. The favor reduced to plain language in the mouth of their planters would run thus: We will agree to buy your provisions rather than starve and let you have our rum, which we can sell nowhere else; but we reserve out of this indulgence a monopoly of the carriage to British vessels.
With regard to revenue, the British resources were extremely exhausted in comparison with those of the United States.
The people of Great-Britain were taxed at the rate of 4s a head; the people of the United States at not more than 6d a head, less than one-sixth of the British tax.
As the price of labor which pays the tax is double in the United States to what it is in Great-Britain, the burden on American citizens is less than one-twelfth of the burden on British subjects.
It is true, indeed, that Britain alone does not bear the whole burden. She levies indirect taxes on her West-Indies and on her East-Indies, and derives from an acquiescence in her monopolizing regulations an imperceptible tribute from the whole commercial world.
Still, however, the difference of burden in the two countries is immense.
Britain has moreover great arrears of unfunded debts. She is threatened with defects in her revenue even at this time. She is engaged in an expensive war. And she raises the supplies for it on the most expensive terms.
Add to the whole that her population is stationary if not diminishing, whilst that of the United States is in a course of increase beyond example.
Should it still be asked whether the impost might not be affected, and how a deficiency could be supplied? He thought sufficient answers might be given.
He took for granted that the articles subjected to the additional duties would continue to come according to the demand for them. And believed if the duties were prudently adjusted, the increase of the duties would balance the decrease of importation… .
james madison “Political Observations” 20 April 1795
After the Third Congress adjourned, Madison again defended his commercial propositions and Republican conduct in general in this anonymous pamphlet.
A variety of publications, in pamphlets and other forms, have appeared in different parts of the Union since the session of Congress which ended in June, 1794, endeavoring, by discolored representations of our public affairs, and particularly of certain occurrences of that session, to turn the tide of public opinion into a party channel. The immediate object of the writers was either avowedly or evidently to operate on the approaching elections of Federal Representatives. As that crisis will have entirely elapsed before the following observations will appear, they will, at least, be free from a charge of the same views; and will, consequently, have the stronger claim to that deliberate attention and reflection to which they are submitted.
The publications alluded to have passed slightly over the transactions of the First and Second Congress; and so far, their example will here be followed.
Whether, indeed, the funding system was modelled either on the principles of substantial justice or on the demands of public faith? Whether it did not contain ingredients friendly to the duration of the public debt and implying that it was regarded as a public good? Whether the assumption of the state debts was not enforced by overcharged representations; and Whether, if the burdens had been equalized only, instead of being assumed in the gross, the states could not have discharged their respective proportions by their local resources sooner and more conveniently than the general government will be able to discharge the whole debts by general resources? Whether the excise system be congenial with the spirit and conducive to the happiness of our country; or can even justify itself as a productive source of revenue? Whether, again, the bank was not established without authority from the Constitution? Whether it did not throw unnecessary and unreasonable advantages into the hands of men previously enriched beyond reason or necessity? And whether it can be allowed the praise of a salutary operation until its effects shall have been more accurately traced and its hidden transactions shall be fully unveiled to the public eye: These and others are questions which, though of great importance, it is not intended here to examine. Most of them have been finally decided by the competent authority; and the rest have, no doubt, already impressed themselves on the public attention.
Passing on then to the session of Congress preceding the last, we are met in the first place by the most serious charges against the southern members of Congress in general and particularly against the representatives of Virginia. They are charged with having supported a policy which would inevitably have involved the United States in the war of Europe, have reduced us from the rank of a free people to that of French colonies, and possibly have landed us in disunion, anarchy, and misery; and the policy from which these tremendous calamities was to flow is referred to certain commercial resolutions moved by a member from Virginia in the House of Representatives.
To place in its true light the fallacy which infers such consequences from such a cause, it will be proper to review the circumstances which preceded and attended the resolutions.
It is well known that at the peace between the United States and Great Britain, it became a question with the latter whether she should endeavor to regain the lost commerce of America by liberal and reciprocal arrangements or trust to a relapse of it into its former channels without the price of such arrangements on her part. Whilst she was fearful that our commerce would be conducted into new and rival channels, she leaned to the first side of the alternative, and a bill was actually carried in the House of Commons by the present Prime Minister corresponding with that sentiment. She soon, however, began to discover (or to hope) that the weakness of our Federal Government and the want of concurrence among the state governments would secure her against the danger at first apprehended. From that moment all ideas of conciliation and concession vanished. She determined to enjoy at once the full benefit of the freedom allowed by our regulations and of the monopolies established by her own.
In this state of things, the pride as well as the interest of America were everywhere aroused. The mercantile world in particular was all on fire; complaints flew from one end of the continent to the other; projects of retaliation and redress engrossed the public attention. At one time, the states endeavored by separate efforts to counteract the unequal laws of Great Britain. At another, correspondencies were opened for uniting their efforts. An attempt was also made to vest in the former Congress a limited power for a limited time, in order to give effect to the general will.
All these experiments, instead of answering the purpose in view, served only to confirm Great Britain in her first belief, that her restrictive plans were in no danger of retaliation.
It was at length determined by the Legislature of Virginia to go to work in a new way. It was proposed, and most of the states agreed, to send commissioners to digest some change in our general system that might prove an effectual remedy. The commissioners met; but finding their powers too circumscribed for the great object which expanded itself before them, they proposed a convention on a more enlarged plan for a general revision of the Federal Government.
From this convention proceeded the present Federal Constitution, which gives to the general will the means of providing in the several necessary cases for the general welfare; and particularly in the case of regulating our commerce in such manner as may be required by the regulations of other countries.
It was natural to expect that one of the first objects of deliberation under the new constitution would be that which had been first and most contemplated in forming it. Accordingly it was, at the first session, proposed that something should be done analogous to the wishes of the several states and expressive of the efficiency of the new government. A discrimination between nations in treaty and those not in treaty, the mode most generally embraced by the states, was agreed to in several forms, and adhered to in repeated votes, by a very great majority of the House of Representatives. The Senate, however, did not concur with the House of Representatives, and our commercial arrangements were made up without any provision on the subject.
From that date to the session of Congress ending in June, 1794, the interval passed without any effective appeal to the interest of Great Britain. A silent reliance was placed on her voluntary justice, or her enlightened interest.
The long and patient reliance being ascribed (as was foretold) to other causes than a generous forbearance on the part of the United States had, at the commencement of the Third Congress, left us with respect to a reciprocity of commercial regulations between the two countries precisely where the commencement of the First Congress had found us. This was not all, the western posts, which entailed an expensive Indian war on us, continued to be withheld, although all pretext for it had been removed on our part. Depredations as derogatory to our rights as grievous to our interests had been licenced by the British Government against our lawful commerce on the high seas. And it was believed, on the most probable grounds, that the measure by which the Algerine Pirates were let loose on the Atlantic had not taken place without the participation of the same unfriendly counsels. In a word, to say nothing of the American victims to savages and barbarians, it was estimated that our annual damages from Great Britain were not less than three or four millions of dollars.
This distressing situation spoke the more loudly to the patriotism of the representatives of the people as the nature and manner of the communications from the President seemed to make a formal and affecting appeal on the subject to their co-operation. The necessity of some effort was palpable. The only room for different opinions seemed to lie in the different modes of redress proposed. On one side nothing was proposed, beyond the eventual measures of defence, in which all concurred, except the building of six frigates, for the purpose of enforcing our rights against Algiers. The other side, considering this measure as pointed at one only of our evils, and as inadequate even to that, thought it best to seek for some safe but powerful remedy that might be applied to the root of them; and with this view the Commercial Propositions were introduced.
They were at first opposed on the ground that Great Britain was amicably disposed towards the United States, and that we ought to await the event of the depending negociation. To this it was replied that more than four years of appeal to that disposition had been tried in vain by the new government; that the negotiation had been abortive and was no longer depending; that the late letters from Mr. Pinckney, the minister at London, had not only cut off all remaining hope from that source, but had expressly pointed commercial regulations as the most eligible redress to be pursued.
Another ground of opposition was that the United States were more dependent on the trade of Great Britain than Great Britain was on the trade of the United States. This will appear scarcely credible to those who understand the commerce between the two countries, who recollect that it supplies us chiefly with superfluities whilst in return it employs the industry of one part of her people, sends to another part the very bread which keeps them from starving, and remits moreover, an annual balance in specie of ten or twelve millions of dollars. It is true, nevertheless, as the debate shows, that this was the language, however strange, of some who combated the propositions.
Nay, what is still more extraordinary, it was maintained that the United States had, on the whole, little or no reason to complain of the footing of their commerce with Great Britain; although such complaints had prevailed in every state, among every class of citizens, ever since the year 1783; and although the Federal Constitution had originated in those complaints, and had been established with the known view of redressing them.
As such objections could have little effect in convincing the judgement of the House of Representatives, and still less that of the public at large, a new mode of assailing the propositions has been substituted. The American People love peace; and the cry of war might alarm when no hope remained of convincing them. The cry of war has accordingly been echoed through the continent, with a loudness proportioned to the emptiness of the pretext; and to this cry has been added another still more absurd, that the propositions would in the end enslave the United States to their allies and plunge them into anarchy and misery.
It is truly mortifying to be obliged to tax the patience of the reader with an examination of such gross absurdities; but it may be of use to expose, where there may be no necessity to refute them.
What were the commercial propositions? They discriminated between nations in treaty and nations not in treaty by an additional duty on the manufactures and trade of the latter; and they reciprocated the navigation laws of all nations who excluded the vessels of the United States from a common right of being used in the trade between the United States and such nations.
Is there any thing here that could afford a cause or a pretext for war to Great Britain or any other nation? If we hold at present the rank of a free people, if we are no longer colonies of Great Britain, if we have not already relapsed into some dependence on that nation, we have the self-evident right to regulate our trade according to our own will and our own interest, not according to her will or her interest. This right can be denied to no independent nation. It has not been and will not be denied to ourselves by any opponent of the propositions.
If the propositions could give no right to Great Britain to make war, would they have given any color to her for such an outrage on us? No American citizen will affirm it. No British subject who is a man of candor will pretend it; because he must know that the commercial regulations of Great Britain herself have discriminated among foreign nations whenever it was thought convenient. They have discriminated against particular nations by name; they have discriminated with respect to particular articles by name, by the nations producing them, and by the places exporting them. And as to the navigation articles proposed, they were not only common to the other countries along with Great Britain; but reciprocal between Great Britain and the United States: Nay, it is notorious that they fell short of an immediate and exact reciprocity of her own Navigation Laws.
Would any nation be so barefaced as to quarrel with another for doing the same thing which she herself has done, for doing less than she herself has done, towards that particular nation? It is impossible that Great Britain would ever expose herself by so absurd as well as arrogant a proceeding. If she really meant to quarrel with this country, common prudence and common decency would prescribe some other less odious pretext for her hostility.
It is the more astonishing that such a charge against the propositions should have been hazarded when the opinion and the proceedings of America on the subject of our commercial policy is reviewed.
Whilst the power over trade remained with the several states, there were few of them that did not exercise it on the principle, if not in the mode, of the commercial propositions. The eastern states generally passed laws either discriminating between some foreign nations and others or levelled against Great Britain by name. Maryland and Virginia did the same. So did two, if not the three, of the more southern states. Was it ever, during that period, pretended at home or abroad that a cause or pretext for quarrel was given to Great Britain or any other nation? Or were our rights better understood at that time than at this or more likely then than now to command the respect due to them.
Let it not be said, Great Britain was then at peace, she is now at war. If she would not wantonly attempt to control the exercise of our sovereign rights when she had no other enemy on her hands, will she be mad enough to make the attempt when her hands are fully employed with the war already on them? Would not those who say now, postpone the measures until Great Britain shall be at peace, be more ready, nay have more reason to say in time of peace, postpone them until she should be at war; there will then be no danger of her throwing new enemies into the scale against her.
Nor let it be said that the combined powers would aid and stimulate Great Britain to wage an unjust war on the United States. They are too fully occupied with their present enemy to wish for another on their hands; not to add that two of those powers, being in treaty with the United States, are favored by the propositions; and that all of them are well known to entertain an habitual jealousy of the monopolizing character and maritime ascendency of that nation.
One thing ought to be regarded as certain and conclusive on this head; whilst the war against France remains unsuccessful, the United States are in no danger from any of the powers engaged in it. In the event of a complete overthrow of that Republic, it is impossible to know what might follow. But if the hostile views of the combination should be turned towards this continent, it would clearly not be to vindicate the commercial interests of Great Britain against the commercial rivals of the United States. The object would be to root out Liberty from the face of the earth. No pretext would be wanted, or a better would be contrived than anything to be found in the commercial proposition.
On whatever other side we view the clamor against these propositions as inevitably productive of war, it presents neither evidence to justify it nor argument to color it.
The allegation necessarily supposes either that the friends of the propositions could discover no probability, where its opponents could see a certainty, or that the former were less averse to war than the latter.
The first supposition will not be discussed. A few observations on the other may throw new lights on the whole subject.
The members, in general, who espoused these propositions have been constantly in that part of the Congress who have professed with most zeal, and pursued with most scruple, the characteristics of republican government. They have adhered to these characteristics in defining the meaning of the Constitution, in adjusting the ceremonial of public proceedings, and in marking out the course of the Administration. They have manifested, particularly, a deep conviction of the danger to liberty and the Constitution from a gradual assumption or extension of discretionary powers in the executive departments; from successive augmentations of a standing army; and from the perpetuity and progression of public debts and taxes. They have been sometimes reprehended in debate for an excess of caution and jealousy on these points. And the newspapers of a certain stamp, by distorting and discolouring this part of their conduct, have painted it in all the deformity which the most industrious calumny could devise.
Those best acquainted with the individuals who more particularly supported the propositions will be foremost to testify that such are the principles which not only govern them in public life, but which are invariably maintained by them in every other situation. And it cannot be believed nor suspected that with such principles they could view war as less an evil than it appeared to their opponents.
Of all the enemies to public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes and the opportunities of fraud growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could reserve its freedom in the midst of continual warfare.
Those truths are well established. They are read in every page which records the progression from a less arbitrary to a more arbitrary government, or the transition from a popular government to an aristocracy or a monarchy.
It must be evident, then, that in the same degree as the friends of the propositions were jealous of armies and debts and prerogative, as dangerous to a republican Constitution, they must have been averse to war, as favourable to armies and debts and prerogative.
The fact accordingly appears to be that they were particularly averse to war. They not only considered the propositions as having no tendency to war, but preferred them as the most likely means of obtaining our objects without war. They thought, and thought truly, that Great Britain was more vulnerable in her commerce than in her fleets and armies; that she valued our necessaries for her markets and our markets for her superfluities, more than she feared our frigates or our militia; and that she would, consequently, be more ready to make proper concessions under the influence of the former than of the latter motive.
Great Britain is a commercial nation. Her power, as well as her wealth, is derived from commerce. The American commerce is the most valuable branch she enjoys. It is the more valuable, not only as being of vital importance to her in some respects, but of growing importance beyond estimate in its general character. She will not easily part with such a resource. She will not rashly hazard it. She would be particularly aware of forcing a perpetuity of regulations which not merely diminish her share, but may favour the rivalship of other nations. If anything, therefore, in the power of the United States could overcome her pride, her avidity, and her repugnancy to this country, it was justly concluded to be, not the fear of our arms, which, though invincible in defense, are little formidable in a war of offense, but the fear of suffering in the most fruitful branch of her trade and of seeing it distributed among her rivals.
If any doubt on this subject could exist, it would vanish on a recollection of the conduct of the British ministry at the close of the war in 1783. It is a fact which has been already touched, and it is as notorious as it is instructive, that during the apprehension of finding her commerce with the United States abridged or endangered by the consequences of the revolution, Great Britain was ready to purchase it, even at the expense of her West-Indies monopoly. It was not until after she began to perceive the weakness of the federal government, the discord in the counteracting plans of the state governments, and the interest she would be able to establish here, that she ventured on that system to which she has since inflexibly adhered. Had the present federal government, on its first establishment, done what it ought to have done, what it was instituted and expected to do, and what was actually proposed and intended it should do; had it revived and confirmed the belief in Great Britain that our trade and navigation would not be free to her without an equal and reciprocal freedom to us in her trade and navigation, we have her own authority for saying that she would long since have met us on proper ground; because the same motives which produced the bill brought into the British Parliament by Mr. Pitt, in order to prevent the evil apprehended, would have produced the same concession at least, in order to obtain a recall of the evil after it had taken place.
The aversion to war in the friends of the propositions may be traced through the whole proceedings and debates of the session. After the depredations in the West-Indies, which seemed to fill up the measure of British aggressions, they adhered to their original policy of pursuing redress rather by commercial than by hostile operations; and with this view unanimously concurred in the bill for suspending importations from British ports, a bill that was carried through the House by a vote of fifty-eight against thirty-four. The friends of the propositions appeared, indeed, never to have admitted that Great Britain could seriously mean to force a war with the United States, unless in the event of prostrating the French Republic; and they did not believe that such an event was to be apprehended.
Confiding in this opinion, to which time has given its full sanction, they could not accede to those extraordinary measures which nothing short of the most obvious and imperious necessity could plead for. They were as ready as any to fortify our harbours and fill our magazines and arsenals; these were safe and requisite provisions for our permanent defense. They were ready and anxious for arming and preparing our militia; that was the true republican bulwark of our security. They joined also in the addition of a regiment of artillery to the military establishment, in order to complete the defensive arrangement on our eastern frontier. These facts are on record, and are the proper answer to those shameless calumnies which have asserted that the friends of the commercial propositions were enemies to every proposition for the national security.
But it was their opponents, not they, who continually maintained that on a failure of negotiation, it would be more eligible to seek redress by war than by commercial regulations; who talked of raising armies that might threaten the neighbouring possessions of foreign powers; who contended for delegating to the executive the prerogatives of deciding whether the country was at war or not, and of levying, organizing, and calling into the field a regular army of ten, fifteen, nay, of twenty-five thousand men.
It is of some importance that this part of the history of the session, which has found no place in the late reviews of it, should be well understood. They who are curious to learn the particulars must examine the debates and the votes. A full narrative would exceed the limits which are here prescribed. It must suffice to remark that the efforts were varied and repeated until the last moment of the session, even after the departure of a number of members forbade new propositions, much more a renewal of rejected ones; and that the powers proposed to be surrendered to the executive were those which the Constitution has most jealously appropriated to the legislature.
The reader shall judge on this subject for himself.
The Constitution expressly and exclusively vests in the legislature the power of declaring a state of war; it was proposed that the executive might, in the recess of the legislature, declare the United States to be in a state of war.
The Constitution expressly and exclusively vests in the legislature the power of raising armies: it was proposed, that in the recess of the legislature, the executive might, at its pleasure, raise or not raise an army of ten, fifteen, or twenty-five thousand men.
The Constitution expressly and exclusively vests in the legislature the power of creating offices; it was proposed that the executive, in the recess of the legislature, might create offices, as well as appoint officers, for an army of ten, fifteen, or twenty-five thousand men.
A delegation of such powers would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments.
The separation of the power of declaring war from that of conducting it is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.
The separation of the power of raising armies from the power of commanding them is intended to prevent the raising of armies for the sake of commanding them.
The separation of the power of creating offices from that of filling them is an essential guard against the temptation to create offices for the sake of gratifying favorites or multiplying dependents.
Where would be the difference between the blending of these incompatible powers, by surrendering the legislative part of them into the hands of the executive, and by assuming the executive part of them into the hands of the legislature? In either case the principle would be equally destroyed, and the consequences equally dangerous.
An attempt to answer these observations by appealing to the virtues of the present chief magistrate and to the confidence justly placed in them will be little calculated either for his genuine patriotism or for the sound judgment of the American public.
The people of the United States would not merit the praise universally allowed to their intelligence if they did not distinguish between the respect due to the man and the functions belonging to the office. In expressing the former, there is no limit or guide but the feelings of their grateful hearts. In deciding the latter, they will consult the Constitution; they will consider human nature, and, looking beyond the character of the existing magistrate, fix their eyes on the precedent which must descend to his successors.
Will it be more than truth to say that this great and venerable name is too often assumed for what cannot recommend itself, and for what there is neither proof nor probability that its sanction can be claimed? Do arguments fail? Is the public mind to be encountered? There are not a few ever ready to invoke the name of Washington; to garnish their heretical doctrines with his virtues and season their unpallatable measures with his popularity. Those who take this liberty will not, however, be mistaken; his truest friends will be the last to sport with his influence, above all for electioneering purposes. And it is but a fair suspicion that they who draw most largely on that fund are hastening fastest to bankruptcy in their own.
As vain would be the attempt to explain away such alarming attacks on the Constitution by pleading the difficulty, in some cases, of drawing a line between the different departments of power; of recurring to the little precedents which may have crept in at urgent or unguarded moments.
It cannot be denied that there may, in certain cases, be a difficulty in distinguishing the exact boundary between legislative and executive powers; but the real friend of the Constitution and of liberty, by his endeavors to lessen or avoid the difficulty, will easily be known from him who labours to encrease the obscurity, in order to remove the constitutional landmarks without notice.
Nor will it be denied that precedents may be found where the line of separation between these powers has not been sufficiently regarded; where an improper latitude of discretion, particularly, has been given or allowed to the executive departments. But what does this prove? That the line ought to be considered as imaginary; that constitutional organizations of power ought to lose their effect? No—It proves with how much deliberation precedents ought to be established, and with how much caution arguments from them should be admitted. It may furnish another criterion, also, between the real and ostensible friend of constitutional liberty. The first will be as vigilant in resisting as the last will be in promoting the growth of inconsiderate or insidious precedents into established encroachments.
The next charge to be examined, is the tendency of the propositions to degrade the United States into French colonies.
As it is difficult to argue against suppositions made and multiplied at will, so it is happily impossible to impose on the good sense of this country by arguments which rest on suppositions only. In the present question it is first supposed that the exercise of the self-evident and sovereign right of regulating trade, after the example of all independent nations and that of the example of Great Britain towards the United States, would inevitably involve the United States in a war with Great Britain. It is then supposed that the other combined powers, though some of them be favored by the regulations proposed, and all of them be jealous of the maritime predominance of Great Britain, would support the wrongs of Great Britain against the rights of the United States. It is lastly supposed that our allies (the French) in the event of success in establishing their own liberties, which they owe to our example, would be willing, as well as able, to rob us of ours, which they assisted us in obtaining; and that so malignant is their disposition on this head that we should not be spared, even if embarked in a war against her own enemy. To finish the picture, it is intimated that in the character of allies, we are the more exposed to this danger, from the secret and hostile ambition of France.
It will not be expected, that any formal refutation should be wasted on absurdities which answer themselves. None but those who have surrendered their reasoning faculties to the violence of their prejudices will listen to suggestions implying that the freest nation in Europe is the basest people on the face of the earth; that instead of the friendly and festive sympathy indulged by the people of the United States, they ought to go into mourning at every triumph of the French arms; that instead of regarding the French Revolution as a blessing to mankind and a bulwark to their own, they ought to anticipate its success as of all events the most formidable to their liberty and sovereignty; and that, calculating on the political connection with that nation as the source of additional danger from its enmity and its usurpation, the first favorable moment ought to be seized for putting an end to it… .
The Popular Societies, the Excise, and the Whiskey Rebellion
Beginning in Philadelphia in the spring of 1793, concurrently with Citizen Genet’s arrival in the country and inspired in part by the Jacobin societies in France, a score of popular societies sprang up in every portion of the country. Suspicion of the Federalists as well as friendship for France was one of their identifying features, and the excise tax on whiskey, which was provoking sharp resistance along the whole frontier, was one of their favorite targets.
The Democratic Society of Pennsylvania (Philadelphia) Principles, Articles, and Regulations 30 May 1793
The rights of man, the genuine objects of society, and the legitimate principles of government have been clearly developed by the successive Revolutions of America and France. Those events have withdrawn the veil which concealed the dignity and the happiness of the human race, and have taught us, no longer dazzled with adventitious splendor or awed by antiquated usurpation, to erect the Temple of liberty on the ruins of Palaces and Thrones.
At this propitious period, when the nature of freedom and equality is thus practically displayed, and when their value (best understood by those who have paid the price of acquiring them) is universally acknowledged, the patriotic mind will naturally be solicitous, by every proper precaution, to preserve and perpetuate the blessings which Providence hath bestowed upon our country: For, in reviewing the history of nations, we find occasion to lament that the vigilance of the people has been too easily absorbed in victory; and that the prize which has been achieved by the wisdom and valor of one generation has too often been lost by the ignorance and supineness of another.
With a view, therefore, to cultivate the just knowledge of rational liberty, to facilitate the enjoyment and exercise of our civil rights, and to transmit, unimpaired, to posterity, the glorious inheritance of a free Republican Government, the Democratic Society of Pennsylvania is constituted and established. Unfettered by religious or national distinctions, unbiased by party and unmoved by ambition, this institution embraces the interest and invites the support of every virtuous citizen. The public good is indeed its sole object, and we think that the best means are pursued for obtaining it when we recognize the following as the fundamental principles of our association.
I. That the people have the inherent and exclusive right and power of making and altering forms of government; and that for regulating and protecting our social interests, a Republican Government is the most natural and beneficial form which the wisdom of man has devised.
II. That the Republican Constitutions of the United States and of the State of Pennsylvania, being framed and established by the people, it is our duty as good citizens to support them. And in order effectually to do so, it [is] likewise the duty of every freeman to regard with attention and to discuss without fear the conduct of the public servants in every department of government.
III. That in considering the administration of public affairs, men and measures should be estimated according to their intrinsic merits; and therefore, regardless of party spirit or political connection, it is the duty of every citizen, by making the general welfare the rule of his conduct, to aid and approve those men and measures which have an influence in promoting the prosperity of the Commonwealth.
IV. That in the choice of persons to fill the offices of government, it is essential to the existence of a free Republic that every citizen should act according to his own judgment, and, therefore, any attempt to corrupt or delude the people in exercising the rights of suffrage, either by promising the favor of one candidate or traducing the character of another, is an offence equally injurious to moral rectitude and civil liberty.
V. That the People of Pennsylvania form but one indivisible community, whose political rights and interest, whose national honor and prosperity, must in degree and duration be forever the same; and, therefore it is the duty of every freeman and shall be the endeavor of the Democratic Society to remove the prejudices, to conciliate the affections, to enlighten the understanding, and to promote the happiness of all our fellow-citizens… .
Condemnations, Defenses, and Society Attacks on the Excise
“A Friend to Good Government” New York Daily Gazette 21 February 1794
Upon reading the constitution of a society lately established in this city, entitled “The Democratic Society,” published in your paper yesterday, the following Queries struck me:
Is liberty in danger, either from the form or administration of the general government?
Or, is the government in danger from the excess of liberty?
Is America in so critical a situation as to require the aid of new councils?
Is it necessary we should be in a revolutionary state, and try new projects?
Do the people require intermediary guides betwixt them and the constituted authorities?
Or, are they weak and uninformed, after having performed wonders in legislation and arms—Is a restless society necessary to their preserving it?
Are the members who compose this society more virtuous or less ambitious than others?
Have they long given proofs of piety, patriotism, morality, and various other duties that characterize good citizens?
Are these people organizers, or disorganizers; are they federalists or anti-federalists?
Do they associate to electioneer to effect, or to prevent others from doing it?
Above all, Mr. Printer, I ask, Are they chosen by the people? If not, as I know no other authority, I shall hereafter regard them as self-creators, as a branch, perhaps, of the Jacobin Society of Paris.
“A Friend to Rational Government” New York Journal 22 February 1794
A member of the Democratic Society, in answer to the Querist in Mr. M’Lean’s paper of yesterday, informs him, That the old whigs in this city, observing of late the warm attachment of the old tories (who deserted their country, and joined their enemies, during her conflict with the British Dey) who are now enemies of our good allies, the French—I say, we, observing their attachment for measures and men in government that no patriot can approve of, suspect all is not right, and it behooves us, who purchased Liberty at the risque of life and fortune, to be on our watch. I hope this explanation will satisfy the Querist; if not, by calling at No. 244, Cooper-street, he may be further informed of the designs of the Society.
Republican Society of the Town of Newark (New Jersey) Newark Gazette 19 March 1794
Friends and Countrymen
It is not a strange matter to see the moneyed part of the people of America in general opposed to Republican Societies; the only reason is because a great many of them have crept into offices, and [are] jealous least too great a share of political knowledge should be diffused among the people and, of course, their conduct would be examined into, which they are doubtful will not stand the test, and of consequence they will be hurled from their easy situation; a change which they cannot think of undergoing while there is possibility of avoiding it. For this reason, they oppose the forming of Republican Societies, because it will have a tendency to enlighten the minds of the people.
The forming of Republican Societies has caused a great stir in many parts of America amongst the Tory part of the people; but in none more than it has in this place; the Tories and the nobility have joined their efforts to prevent the forming of a Republican Society in this town; but (to the praise of the Republicans be it spoken) they have not succeeded.
It must be the mechanics and farmers or the poorer class of people (as they are generally called) that must support the freedom of America; the freedom which they and their fathers purchased with their blood—the nobility will never do it—they will be always striving to get the reins of government into their own hands, and then they can ride the people at pleasure.
It stands the people in hand, who would keep up the spirit of freedom in America, to stir themselves up, lest while they are sleeping, the lamp of liberty goes out and they be left to grope in the dark land of despotism and oppression. Now is the time—every day you slumber gives strength to the enemies of freedom—they are waking while you are sleeping—trust not the enemies of the precious diadem—you have won in the field of battle, amidst blood and carnage to be the guardians of it.
It is said that we have a good constitution—let us know it well—let us see whether we have a good constitution or not; and if we have, let us see whether the administration is agreeable to it or not; if so let us endeavor to make each other as happy under such a constitution as possible, if it is a good constitution let us take care that neither ruler nor ruled infringe upon it!
A good constitution is like good wine, unless it is kept corked tight, it will degenerate. And it may be compared to a fountain, that if ever so pure, if the spouts are filthy, the streams will be corrupted. Let us therefore watch with attention and let us take great care that we do not pin our faith upon other men’s sleeves.
Address of the Democratic Society in Wythe County, Virginia, to the People of the United States Newark Gazette 18 June 1794
It is a right of the people peaceably to assemble and deliberate. It is a right of the people to publish their sentiments. These rights we exercise, and esteem invaluable.
A war raging in Europe, a war of tyrants against liberty, cannot be unfelt by the people of the United States—It has roused our feelings. We have rejoiced when victory followed the standard of liberty. When despots were successful, we have experienced the deepest anxiety.—We have lamented that our good wishes were the only aid we could give the French… .
While with anxious expectation we contemplate the affairs of Europe, it would be criminal to forget our own country. … A Session of Congress having just passed, the first in which the people were equally represented, it is a fit time to take a retrospective view of the proceedings of government. We have watched each motion of those in power, but are sorry we cannot exclaim, “well done thou good and faithful servant!” We have seen the nation insulted, our rights violated, our commerce ruined; and what has been the conduct of Government? Under the corrupt influence of the paper system, it has uniformly crouched to Britain, while on the contrary our allies the French, to whom we owe our political existence, have been treated unfriendly; denied any advantages from their treaties with us; their Minister abused; and those individuals among us who desired to aid their arms prosecuted as traitors. Blush Americans for the conduct of your government!!!
Shall we Americans, who have kindled the spark of liberty, stand aloof and see it extinguished when burning a bright flame in France, which hath caught it from us? Do you not see if despots prevail, you must have a despot like the rest of the nations? If all tyrants unite against free people, should not all free people unite against tyrants? Yes! Let us unite with France and stand or fall together.
We lament that a man who hath so long possessed the public confidence as the head of the Executive Department hath possessed it should put it to so severe a trial as he hath by a late appointment. The constitution hath been trampled on, and your rights have no security. Citizens! What is despotism? Is it not a union of executive, legislative, and judicial authorities to an executive office by the head of that branch of Government; in that capacity he is to make treaties: Those treaties are your supreme law?—and of this supreme law he is supreme Judge!!! What has become of your constitution & liberties?
We hope the misconduct of the executive may have proceeded from bad advice; but we can only look to the immediate cause of the mischief. To us, it seems a radical change of measures is necessary. How shall this be effected? Citizens it is to be effected by a change of men. Deny the continuance of our confidence to such members of the legislative body as have an interest distinct from that of the people. To trust yourselves to stock holders what is it but, like the Romans, to deliver the poor debtor to his creditor, as his absolute property. To trust yourselves to speculators, what is it, but to committ the lamb to the wolf to be devoured.
It was recommended by the conventions of some of the states so to amend the Constitution as to incapacitate any man to serve as President more than eight years successively. Consider well this experiment. ’Tis probably the most certain way to purge the different departments and produce a new state of things.
Believe us fellow citizens, the public welfare is our only motive.
William Neely, Chairman
Republican Society of Newark 9 June 1794
Resolved, as the opinion of this society that the raising a revenue by means of excise, except in cases of eminent necessity, is incompatible with the spirit of a free people. Insomuch as to make it productive, it would become necessary to throw open the sacred doors of domestic retirement and expose the persons of all ages and sex to the ferocious insolence of the lowest order of revenue officers, which would have a tendency either to debase the minds of the citizens and prepare them for slavery or excite disgust against the government and produce convulsions and the dissolution of society. Besides its being the most expensive mode of taxation is a sufficient reason for disapproving of it, experience having taught that the mode of raising a revenue by excise takes more money out of the pockets of the citizens and puts less into the public coffers than another—it having a tendency to corrupt the morals of the people, by opening another door to fraud and perjury, is in the opinion of this society an additional argument against the adoption of an excise system of revenue.
The Democratic Society of Philadelphia
Resolved, as the opinion of this society, that taxation by excise has ever been justly abhorred by free men; that it is a system attendant with numerous vexations, opens the door to manifold frauds, and is most expensive in its collection; It is also highly objectionable by the number of officers it renders necessary, ever ready to join in a firm phalanx to support government even in unwarrantable measures.
“For the Columbian Centinel,” Boston 27 September 1794
Every part of the conduct of our Genetines affords proof of their inconsistency and deceit; their conduct and their professions are at open variance in every instance. We call them Genetines rather than Jacobins or Democrats; it is more precisely descriptive, and there is a marked propriety in deriving their name from their patron and founder.
Those who pretend to superior virtue and patriotism ought, at least, to equal their more modest neighbors, who make no such professions, in a disinterested, consistent display of regard for the happiness of others and a willingness to share equally with them the burdens as well as the benefits of society. But our Genetines are as conspicuous for their endeavors to secure to themselves every office of honor and profit as they are for encroaching upon the rights of others. They are professed advocates for equality, but in all cases they assume rights to themselves which they deny to others.
The leaders of our Genetine Club were among the first who clamored at the institution of the Cincinnati, because they were self-created and had taken the liberty of an appropriate badge, a peculiar mark of distinction to themselves and their descendents. A desire to set up and retain this idle gewgaw of a Ribbon and a Goose must have originated in aristocratic principles, it was urged, and was conclusive proof of a lust of domination. Upon this ground, the members of the Cincinnati were held up and denounced as Aristocrats, men who meant to lord it over others and who were dangerous to the state.
But the Genetines are as unfounded and unknown to our constitution and laws as were the Cincinnati, and the object of their institution and the views and principles of their leaders are much more alarming and dangerous to society. The former were chargeable only with a foolish pride for an empty distinction, at the worst; but the latter assume the right of a papal inquisition to arraign before the public the men and the measures of the people, and exclusively and definitively to pass sentence upon them. They even go so far in their publications in the Chronicle and in their private discussions and votes as to style themselves the people and to criminate the President and other servants of the public as if they had been created to office by the voice of their Clubs alone. As well might a band of midnight robbers style themselves the people and seize upon the public treasure, under pretence of its being the people’s property. The band indeed would appear less criminal and dangerous before any tribunal than the Clubs; for the former will have robbed the community only of its wealth, but the latter destroy also its peace, its safety, and happiness… .
Letter to General Lee from Alexander Addison
The excise tax of 1791 imposed significant hardships on farmers beyond the mountains. It was collectible in specie among a people who seldom saw much coin and who could export or barter their grain only by distilling it into a portable (and potable) form. Resistance was common along the whole frontier from Pennsylvania to Kentucky to North Carolina, fed by the revolutionary tradition of opposition to internal taxes, traditional Anglo-American hostility to intrusive revenue collectors (who had to travel around the countryside to measure the output of presses and stills), rising condemnations of the motives of the Federalist administration, and increasing western resentment of the lack of federal action to control the Indians or open the Mississippi River to American trade. Nowhere, though, was the resistance quite so fierce as in the western parts of Pennsylvania. As early as 21 August 1792, a convention of the western counties condemned the tax and advocated legal measures to impede its collection, leading Washington to issue a proclamation warning against illegal combinations. The trouble culminated in the summer of 1794 with intimidation of complying distillers as well as excise officers, an armed attack on the home of Inspector John Neville, a menacing assembly of perhaps six thousand armed militia near the town of Pittsburgh, Washingtonâ€™s second proclamation, and the march across the mountains of the militia army under Hamilton and Henry Lee.
You desired me to state to you my opinion of the late insurrection, the measures taken by government for its suppression, and the effects to be expected from those measures on the people of this country. I undertook to do so, at the same time cautioning you that you were to consider what I should say not so much as facts, or a solid system, as a mere opinion, though certainly a sincere one.
It is not uncommon to trace the origin of this unfortunate business to speculations on the subject of the excise law and on the administration of government in general, and to meetings and resolutions at various and distant times on these subjects; and these have not only been considered as having prepared the minds of the people of this country for the outrages which they afterwards committed, but as evidence of a deep and long formed plot, contrived by men who kept themselves out of view in its execution, to resist the excise system and the government itself, by violence.
Without undertaking to examine or contradict this opinion, I shall content myself with observing that I think it may well be said of it that, at least, more stress has been laid on it than it will bear.
In all countries, the introduction of the excise has been odious and its officers have been held contemptible. … Many now in the country talk of their having seen the riots and resistance against the excise in Ireland. In Ireland, the ordinary power of government seems incompetent to suppress riots, which have perpetual existence, from successive and varying causes. This country is in a great measure settled from Ireland. Being but a new settlement, and a frontier settlement, harassed by the danger, distress, and ravage of an Indian war, [it] did not consider itself, and was not considered, as a proper [object] for even equal taxation. Every frontier settlement at a distance from the seat of government … and in some degree composed of fugitives from justice, civil or criminal, must be supposed to be but little accustomed to the subordination [to] regular government. This natural untamedness of temper was increased by the peculiar circumstances of this country. The clashing jurisdictions of Virginia and Pennsylvania excited animosities in the minds of the advocates of each state, hardly yet healed by the mutual concessions of both, and an opposition to the government of Pennsylvania hardly yet overcome by the experience of its authority. The idea of a new state on this side of the mountains became so prevalent that an act of the Assembly declared it high treason to propose it. Under all these circumstances, an attempt was made to carry into execution the excise law of Pennsylvania. The officer, in his progress through Washington County, was seized by a number of rioters, collected from different quarters. His hair was cut off from one-half of his head. His papers were taken from him, and he was made to tear his commission and tread it under his feet. They then in a body, gathering size as it proceeded, conducted him out of the county with every possible mark of contumely to him and the government and threats of death if he returned. The same object, the removal of an excise officer from the country, was accomplished here as in the [case] of General Neville. If the violence and enormity was less, it was because more was not necessary to accomplish their object. If their madness had been excited by resistance, and if burning houses or even murder had then been necessary to suspend the operation of the law, I now believe they would have thought the crimes sanctioned by the cause. Yet there were then no men of great influence or passion for office or popularity who, for their selfish purposes, inflamed the minds of the people against the excise law; nor could the destruction of the federal government [have] been then in view; for the confederation was not interested in the law, and the Constitution of the United States did not then exist. The excise law of Pennsylvania continued, as to this county, to be a mere dead letter.
When the excise law of the United States came into operation, those people who, without reasoning and merely from prejudice, were its greatest enemies supposed that it possessed all the evils which they had ever heard ascribed to any excise law; and, without reflecting on the difference of circumstances, supposed its operation might be defeated by the same means by which they had defeated the operation of the excise law of Pennsylvania. Accordingly, they had recourse to riots, tarring and feathering, and carrying off papers. These things were done in Washington County and Fayette County. Unfortunately, the prosecutor for the state in Washington County was David Bradford, whose disposition inclined him to omit all prosecution of such offenses. In Fayette County, industry to collect testimony was wanting. The agents of the United States choose to bring all their complaints into the federal courts. The difficulties in the way of the marshall, a stranger in the country, were inevitably great. And there must have been an indisposition in the people of this country, hitherto accustomed to trials in all cases in their own counties, without evident necessity, to aid a jurisdiction which drew them for trial three hundred miles from home [in Philadelphia]. These circumstances contributed to impunity in delinquency and outrage; and impunity produced boldness and perseverance. Animated by their hatred to the law and their past experience of success, and wanting prudence to foresee the consequences, they imagined that they could compel the excise officer of the United States, as they had compelled the excise officer of Pennsylvania, to surrender his commission; and thus reduce the excise law of the United States, as they had reduced the excise law of Pennsylvania, as to them, to a dead letter. With this view they proceeded to General Neville’s to call for a surrender of his commission and papers; and, that they might accomplish all their objects at once as to past and future, a surrender also of the papers of the marshall. Probably they presumed their numbers sufficient to extort by fear alone, without actual force, a ready compliance. Irritated by refusal, resistance, and repulse, and too deeply engaged to retreat, in their frenzy they drew into their guilt all within reach of their terror and proceeded to the extremity of burning the house.
Yet here perhaps they might have stopped, and the rioters in this case, like the rioters in the case of the excise law of Pennsylvania, might have been prosecuted and convicted. But they unhappily mistook in their objects and their means and blindly rushed into measures that involved the whole country. Those subsequent measures I consider as really the insurrection of this country, and the authors of them, whoever they may be, as really the authors of this insurrection. From the ancient aversion of some to the government of Pennsylvania, perhaps some remains of the idea of a new state, which had long ago existed, yet continued to exist, in this country. Perhaps the distinction between a separation from the state and from the United States was not attended to. Perhaps even this last, a seizure of the western lands, a union with Kentucky, the navigation of the Mississippi, and a connection with Great Britain were thought of. Perhaps they never extended their reflections to any system or distant object, but acted from the blind impulse of the moment. Whatever might have been their ideas, measures were determined on which aimed at resistance to government in all its parts and open war. The public post was robbed of the mail, the militia of the country was called out for the purpose of seizing the garrison of Pittsburgh and possessing themselves of the arms and ammunition there. To obey this call many were compelled by fear, many were induced by usefulness in preventing mischief, many were seduced by wanton curiosity, and many were instigated by love of plunder and destruction. The appearance of their strength added ferocity to the ruffians, and a total contempt of the powers of the government and a general anarchy and confusion pervaded the whole country.
I shall here remark that none of those men whom I have heard considered as the distant and secret authors of those acts of violence seem to have been at all consulted in their contrivance or execution, or to have possessed any confidence of those who perpetrated them. All reprobated them, and one (I mean Mr. Gallatin) was the foremost at the public meetings to step forward to stem the torrent of popular rage, openly and at great peril to resist their mad delusions and, by arguments and eloquence the most ingenious and impressive, to expose to them the danger and effects of their conduct and the vanity and impracticability of their schemes. Whether any and what conclusion is to be drawn from this, I submit to you.
To quell the disturbances in this country and restore it to peace and government, the measures taken by the President were, in my opinion, the most prudent that could have been devised; and they seem to have been executed with a correspondent propriety and effect. The appointment of commissioners, by showing the awakened spirit of public exertion, gave a check to the spirit of revolution in this country and to the progress of disorder into other parts of the Union. A fair opportunity was given to men of sense and virtue here who, to guide the current, had seemed to run with it, to step out and change its course. And it gave a rallying point to all well-disposed men to flock to. The confidence arising from their supposed strength now began to abandon the violent; jealousy and distrust crept in among them; and the approach of an army far superior to all remaining ideas of resistance altogether broke their resolutions and, as it advanced, subdued their temper.
Previous to the advance of the army into the country, some attempts were made to stop its progress. At that time, the temper of the country was materially changed. The well disposed were recovering spirit and consistency; and they possessed the disposition, and they believed the strength, of gradually restoring energy to the laws and peace and subordination to the country. They knew the expense of maintaining the army was great, and, more than that, they regarded the labor and fatigue of their patriotic brethren, who, with the sacrifice of domestic interest and enjoyment, at the approach of an inclement season, had undertaken to traverse deep swamps and vast and rugged mountains to relieve them from anarchy and restore them to safety and peace. They blushed for an armed force entering their country to enforce submission to the laws. They feared also something for themselves; there were still among them disorderly men who talked wildly. These, without property to secure their attachment to the government or the country, unaccustomed to a regular industry, and trained to a rambling life, had the arms in their hands, were known and associated to each other, and could, without any sacrifice, remove to wherever they pleased. It was this kind of men that were the great terrors during all the troubles and now only remained to keep those troubles alive. The well disposed were more inclined to quiet, were not generally armed, and had as yet no complete system to bind them together. They believed that the turbulent would not then assemble, in any force, to oppose the army; but that, under the pretense of opposing the army, might plunder or destroy their fellow citizens and quit a country in which they could no longer remain. Some fears also existed, justly provoked as the army was, that it would not be possible to restrain all of them from some intemperate acts, which might provoke at least secret revenge and introduce general destruction. On all these grounds, representations were sent down to the President of the changed state of the country, and those who sent them were willing to give yet stronger assurances of sincerity and risk the peace of the country on its internal exertions. The propositions were honestly meant. Perhaps their rejection was wise. Consequences showed that it was. The army conducted itself with unexampled discipline and tenderness to an offending country and manifested a temper equaled only by the spirit which roused them in defense of the laws and constitution. The peace of the country and energy of the laws, which otherwise might have been the work of some time, were suddenly restored; and a precedent of the force of government and the danger of sedition has been set before the people of this country which, I trust, they will never forget and, I believe, will never need to be repeated.
Notwithstanding the settled malignity in the minds of several, perhaps many, individuals, considering the country in general, I believe there is a complete practical reformation produced among us.
Yet the plan of leaving part of the army for some months in this country appears to me a prudent one. Many of the turbulent spirits have fled from the settlement, thinking that their concealment would be but temporary and thinking that they might soon return without fear of punishment. But, as part of the army remains, they will be convinced that they must submit either to the laws or to permanent exile. And countenanced by this remainder of military force, not a hostile army, but a body of citizens armed to support the laws, the people of this country will acquire the habit of aiding and obeying public authority.
These are my sentiments. I may be mistaken, but I am sincere. This is a statement of opinions, not facts; and the opinions of different men on the same facts will vary from various circumstances. You will qualify my opinions by your own observations and the information of others.
george washington Message to the Third Congress 19 November 1794
Fellow-citizens of the Senate, and of the House of Representatives:
When we call to mind the gracious indulgence of Heaven, by which the American people became a nation; when we survey the general prosperity of our country and look forward to the riches, power, and happiness to which it seems destined; with the deepest regret do I announce to you that, during your recess, some of the citizens of the United States have been found capable of an insurrection. It is due, however, to the character of our government, and to its stability, which cannot be shaken by the enemies of order, freely to unfold the course of this event.
During the session of the year one thousand seven hundred and ninety, it was expedient to exercise the legislative power granted by the Constitution of the United States “to lay and collect excises.” In a majority of the states, scarcely an objection was heard to this mode of taxation. In some, indeed, alarms were at first conceived, until they were banished by reason and patriotism. In the four western counties of Pennsylvania, a prejudice, fostered and embittered by the artifice of men who labored for an ascendency over the will of others, by the guidance of their passions, produced symptoms of riot and violence. It is well known that Congress did not hesitate to examine the complaints which were presented; and to relieve them, as far as justice dictated or general convenience would permit. But the impression which this moderation made on the discontented did not correspond with what it deserved. The arts of delusion were no longer confined to the efforts of designing individuals. The very forbearance to press prosecutions was misinterpreted into a fear of urging the execution of the laws; and associations of men began to denounce threats against the officers employed. From a belief that, by a more formal concert, their operation might be defeated, certain self-created societies assumed the tone of condemnation. Hence, while the greater part of Pennsylvania itself were conforming themselves to the acts of excise, a few counties were resolved to frustrate them. It was now perceived that every expectation from the tenderness which had been hitherto pursued was unavailing, and that further delay could only create an opinion of impotency or irresolution in the Government. Legal process was therefore delivered to the marshal against the rioters and delinquent distillers.
No sooner was he understood to be engaged in this duty than the vengeance of armed men was aimed at his person, and the person and property of the Inspector of the Revenue. They fired upon the marshal, arrested him, and detained him, for some time, as a prisoner. He was obliged, by the jeopardy of his life, to renounce the service of other process on the west side of the Allegany mountain; and a deputation was afterwards sent to him to demand a surrender of that which he had served. A numerous body repeatedly attacked the house of the Inspector, seized his papers of office, and finally destroyed by fire his buildings and whatsoever they contained. Both of these officers, from a just regard to their safety, fled to the Seat of Government, it being avowed that the motives to such outrages were to compel the resignation of the Inspector, to withstand by force of arms the authority of the United States, and thereby to extort a repeal of the laws of excise and an alteration in the conduct of Government.
Upon the testimony of these facts, an Associate Justice of the Supreme Court of the United States notified to me that “in the counties of Washington and Allegany, in Pennsylvania, laws of the United States were opposed and the execution thereof obstructed by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshal of that district.” On this call, momentous in the extreme, I sought and weighed what might best subdue the crisis. On the one hand, the judiciary was pronounced to be stripped of its capacity to enforce the laws; crimes which reached the very existence of social order were perpetuated without control; the friends of Government were insulted, abused, and overawed into silence, or an apparent acquiescence; and, to yield to the treasonable fury of so small a portion of the United States would be to violate the fundamental principle of our Constitution, which enjoins that the will of the majority shall prevail. On the other, to array citizen against citizen, to publish the dishonor of such excesses, to encounter the expense and other embarrassments of so distant an expedition, were steps too delicate, too closely interwoven with many affecting considerations, to be lightly adopted. I postponed, therefore, the summoning the militia immediately into the field; but I required them to be held in readiness, that, if my anxious endeavors to reclaim the deluded and to convince the malignant of their danger, should be fruitless, military force might be prepared to act before the season should be too far advanced.
My proclamation of the 7th of August last was accordingly issued, and accompanied by the appointment of commissioners, who were charged to repair to the scene of insurrection. They were authorized to confer with any bodies of men or individuals. They were instructed to be candid and explicit in stating the sensations which had been excited in the Executive and his earnest wish to avoid a resort to coercion; to represent, however, that, without submission, coercion must be the resort; but to invite them, at the same time, to return to the demeanor of faithful citizens by such accommodations as lay within the sphere of Executive power. Pardon, too, was tendered to them by the Government of the United States and that of Pennsylvania, upon no other condition than a satisfactory assurance of obedience to the laws.
Although the report of the commissioners marks their firmness and abilities, and must unite all virtuous men, by showing that the means of conciliation have been exhausted, all of those who had committed or abetted the tumults did not subscribe the mild form which was proposed as the atonement; and the indications of a peaceable temper were neither sufficiently general nor conclusive to recommend or warrant the further suspension of the march of the militia.
Thus, the painful alternative could not be discarded. I ordered the militia to march—after once more admonishing the insurgents, in my Proclamation of the 25th of September last.
It was a task too difficult to ascertain with precision the lowest degree of force competent to the quelling of the insurrection. From a respect, indeed, to economy and the case of my fellow-citizens belonging to the militia, it would have gratified me to accomplish such an estimate. My very reluctance to ascribe too much importance to the opposition, had its extent been accurately seen, would have been a decided inducement to the smallest efficient numbers. In this uncertainty, therefore, I put into motion fifteen thousand men, as being an army which, according to all human calculation, would be prompt and adequate in every view and might, perhaps, by rendering resistance desperate, prevent the effusion of blood. Quotas had been assigned to the States of New Jersey, Pennsylvania, Maryland, and Virginia, the Governor of Pennsylvania having declared, on this occasion, an opinion which justified a requisition to the other States.
As Commander-in-Chief of the Militia, when called into the actual service of the United States, I have visited the places of general rendezvous, to obtain more exact information and to direct a plan for ulterior movements. Had there been room for a persuasion that the laws were secure from obstruction; that the civil magistrate was able to bring to justice such of the most culpable as have not embraced the proffered terms of amnesty, and may be deemed fit objects of example; that the friends to peace and good government were not in need of that aid and countenance which they ought always to receive and, I trust, ever will receive, against the vicious and turbulent; I should have caught with avidity the opportunity of restoring the militia to their families and home. But succeeding intelligence has tended to manifest the necessity of what has been done; it being now confessed by those who were not inclined to exaggerate the ill conduct of the insurgents that their malevolence was not pointed merely to a particular law; but that a spirit, inimical to all order, has actuated many of the offenders. If the state of things had afforded reason for the continuance of my presence with the army, it would not have been withholden. But every appearance assuring such an issue as will redound to the reputation and strength of the United States, I have judged it most proper to resume my duties at the Seat of Government, leaving the chief command with the Governor of Virginia.
Still, however, as it is probable that, in a commotion like the present, whatsoever may be the pretence, the purposes of mischief and revenge may not be laid aside, the stationing of a small force, for a certain period in the four western counties of Pennsylvania will be indispensable, whether we contemplate the situation of those who are connected with the execution of the laws or of others who may have exposed themselves by an honorable attachment to them. Thirty days from the commencement of this session being the legal limitation of the employment of the militia, Congress cannot be too early occupied with this subject… .
While there is cause to lament that occurrences of this nature should have disgraced the name or interrupted the tranquility of any part of our community, or should have diverted to a new application any portion of the public resources, there are not wanting in real and substantial consolations for the misfortune. It has demonstrated that our prosperity rests on solid foundations; by furnishing an additional proof that my fellow-citizens understand the true principles of government and liberty; that they feel their inseparable union; that, notwithstanding all the devices which have been used to sway them from their interest and duty, they are now as ready to maintain the authority of the laws against licentious invasions as they were to defend their rights against usurpation. It has been a spectacle displaying to the highest advantage the value of Republican government to behold the most and the least wealthy of our citizens standing in the same ranks, as private soldiers, pre-eminently distinguished by being the army of the Constitution; undeterred by a march of three hundred miles over rugged mountains, by the approach of an inclement season, or by any other discouragement. Nor ought I to omit to acknowledge the efficacious and patriotic co-operation which I have experienced from the Chief Magistrates of the States to which my requisitions have been addressed.
To every description of citizens, indeed, let praise be given. But let them persevere in their affectionate vigilance over that precious depository of American happiness, the Constitution of the United States. Let them cherish it, too, for the sake of those who, from every clime, are daily seeking a dwelling in our land. And when, in the calm moments of reflection, they shall have retraced the origin and progress of the insurrection, let them determine whether it has not been fomented by combinations of men who, careless of consequences and disregarding the unerring truth that those who rouse cannot always appease a civil convulsion, have disseminated, from an ignorance or perversion of facts, suspicions, jealousies, and accusations, of the whole Government.
Having thus fulfilled the engagement which I took when I entered into office, “to the best of my ability to preserve, protect, and defend, the Constitution of the United States,” on you, gentlemen, and the people by whom you are deputed, I rely for support… .
Proceedings in the House of Representatives on the President’s Speech 24–27 November 1794
Serving, as he usually did, on the House committee to prepare an answer to the president’s address, Madison helped draft a reply which passed in silence over Washington’s denunciation of the “self-created societies.” Federalists quickly moved to insert an echo of the phrase.
Monday, 24 November
… Mr. Fitzsimons then rose and said that it would seem somewhat incongruous for the House to present an Address to the President which omitted all notice of so very important an article in his speech as that referring to the self-created societies. Mr. F. then read an amendment, which gave rise to a very interesting debate. The amendment was in these words:
“As part of this subject, we cannot withhold our reprobation of the self-created societies, which have risen up in some parts of the Union, misrepresenting the conduct of the Government, and disturbing the operation of the laws, and which, by deceiving and inflaming the ignorant and the weak, may naturally be supposed to have stimulated and urged the insurrection.”
These are “institutions, not strictly unlawful, yet not less fatal to good order and true liberty; and reprehensible in the degree that our system of government approaches to perfect political freedom.” …
Mr. Giles … began by declaring that, when he saw, or thought he saw, the House of Representatives about to erect itself into an office of censorship, he could not sit silent. He did not rise with the hope of making proselytes, but he trusted that the fiat of no person in America should ever be taken for truth, implicitly and without evidence.
Mr. Giles next entered into an encomium of some length on the public services and personal character of the President. He vindicated himself from any want of respect or esteem towards him. He then entered into an examination of the propriety of the expression employed by the President with regard to self-created societies. Mr. G. said that there was not an individual in America who might not come under the charge of being a member of some one or other self-created society. Associations of this kind, religious, political, and philosophical, were to be found in every quarter of the Continent. The Baptists and Methodists, for example, might be termed self-created societies. The people called the Friends were of the same kind. Every pulpit in the United States might be included in this vote of censure, since, from every one of them, upon occasion, instructions had been delivered, not only for the eternal welfare, but likewise for the temporal happiness of the people. There had been other societies in Pennsylvania for several purposes. The venerable Franklin had been at the head of one, entitled a society for political information. They had criminated the conduct of the Governor of this State and of the Governors of other States, yet they were not prosecuted or disturbed. There was, if he mistook not, once a society in this State for the purpose of opposing or subverting the existing Constitution. They also were unmolested. If the House are to censure the Democratic societies, they might do the same by the Cincinnati Society. It is out of the way of the legislature to attempt checking or restraining public opinion. If the self-created societies act contrary to law, they are unprotected, and let the law pursue them. That a man is a member of one of these societies will not protect him from an accusation for treason, if the charge is well founded. If the charge is not well founded, if the societies, in their proceedings, keep within the verge of the law, Mr. G. would be glad to learn what was to be the sequel? If the House undertake to censure particular classes of men, who can tell where they will stop? Perhaps it may be advisable to commence moral philosophers and compose a new system of ethics for the citizens of America. In that case, there would be many other subjects for censure, as well as the self-created societies. Land-jobbing, for example, has been in various instances brought to such a pass that it might be defined swindling on a broad scale. Paper money, also, would be a subject of very tolerable fertility for the censure of a moralist. Mr. G. proceeded to enumerate other particulars on this head, and again insisted on the sufficiency of the existing laws for the punishment of every existing abuse. He observed that gentlemen were sent to this House, not for the purpose of passing indiscriminate votes of censure, but to legislate only. By adopting the amendment of Mr. Fitzsimons, the House would only produce recrimination on the part of the societies and raise them into much more importance than they possibly could have acquired if they had not been distinguished by a vote of censure from that House. Gentlemen were interfering with a delicate right, and they would be much wiser to let the democratic societies alone. Did the House imagine that their censure, like the wand of a magician, would lay a spell on these people? It would be quite the contrary, and the recrimination of the societies would develop the propriety of having meddled with them at all. One thing ought never to be forgotten, that if these people acted wrong, the law was open to punish them; and if they did not, they would care very little for a vote of that House. Why all this particular deviation from the common line of business to pass random votes of censure? The American mind was too enlightened to bear the interposition of this House, to assist either in their contemplations or conclusions on this subject. Members are not sent here to deal out applauses or censures in this way. Mr. G. rejected all aiming at a restraint on the opinions of private persons. As to the societies themselves, Mr. G. personally had nothing to do with them, nor was he acquainted with any of the persons concerned in their original organization… .
Mr. W. Smith then rose and entered at large into the subject. He said that if the Committee withheld an expression of their sentiments in regard to the societies pointed out by the President, their silence would be an avowed desertion of the Executive. He had no scruple to declare that the conduct of these people had tended to blow up the insurrection. Adverting to Mr. Giles, he thought the assertion of that gentleman too broad, when he spoke of not meddling with the opinions of other than political societies.
He considered the dissemination of improper sentiments as a suitable object for the public reprobation of that House. Suppose an agricultural society were to establish itself, and under that title to disseminate opinions subversive of good order; the difference of a name should not make Mr. S. think them exempted from becoming objects of justice. Would any man say that the sole object of self-created societies has been the publication of political doctrines? The whole of their proceedings has been a chain of censures on the conduct of Government. If we do not support the President, the silence of the House will be interpreted into an implied disapprobation of that part of his speech. He will be left in a dilemma. It will be said that he has committed himself.
Mr. S. declared that he was a friend to the freedom of the press; but would any one compare a regular town meeting where deliberations were cool and unruffled to these societies, to the nocturnal meetings of individuals, after they have dined, where they shut their doors, pass votes in secret, and admit no members into their societies but those of their own choosing? … In objection to this amendment it had been stated that the self-created societies would acquire importance from a vote of censure passed on them. They were, for his part, welcome to the whole importance that such a vote could give them. He complained in strong terms of the calumnies and slanders which they had propagated against Government. Every gentleman who thought that these clubs had done mischief was by this amendment called upon to avow his opinion. This was the whole. Mr. S. begged the House to take notice, and he repeated his words once or twice, that he did not mean to go into the constitution of these societies or to say that they were illegal. The question before the House was not whether these societies were illegal or not, but whether they have been mischievous in their consequences… .
Mr. Tracy … declared that if the President had not spoke of the matter, he should have been willing to let it alone, because whenever a subject of that kind was touched, there were certain gentlemen in that House who shook their backs, like a sore-backed horse, and cried out The Liberties of the people! Mr. T. wished only that the House, if their opinion of these societies corresponded with that of the President, should declare that they had such an opinion. This was quite different from attempting to legislate on the subject. Has not the Legislature done so before? Is there any impropriety in paying this mark of respect to a man to whom all America owes such indelible obligations? He thought that this declaration from the House of Representatives would tend to discourage Democratic societies, by uniting all men of sense against them… .
Mr. Nicholas—When we see an attempt made in this House to reprobate whole societies, on account of the conduct of individuals, it may truly be suspected that some of the members of this House have sore backs….
He had always thought them the very worst advocates for the cause which they espoused; but he had come two hundred miles to legislate, and not to reprobate private societies. He was not paid by his constituents for doing business of that sort. The President knew the business of the House better than to call for any such votes of censure. It was wrong to condemn societies for particular acts. That there never should be a Democratical society in America, said Mr. N., I would give my most hearty consent; but I cannot agree to persecution for the sake of opinions. With respect either to the propriety or the power of suppressing them. Mr. N. was in both cases equally of opinion that it was much better to let them alone. They must stand or fall by the general sentiments of the people of America. Is it possible that these societies can exist, for any length of time, when they are of no real use to the country? No. But this amendment will make the people at large imagine that they are of consequence… .
Tuesday, 25 November
… The House went again into Committee of the Whole on the Address of the President and the amendment of Mr. Fitzsimons… .
Mr. Fitzsimons had no violent predilection for any performance of his own. He had, therefore, to prevent so much disputing, prepared to withdraw his motion, provided the Committee be willing that he should do so, and, in the room of this motion, he would read another, for which he was indebted to a gentleman at his right hand [Mr. B. Bourne].
The Committee consented. The former motion was withdrawn, and the other was read. This was an echo of that part of the Speech of the President which mentions self-created societies… .
Mr. Nicholas—Gentlemen have brought us into a discussion and then say we must decide as they please, in deference to the President. This is the real ground and foundation of their arguments. But who started this question? If the gentlemen have brought themselves into a difficulty with regard to the President by their participation in proposing votes of censure which they cannot carry through, they have only to blame themselves. Is it expected, said Mr. N., that I am to abandon my independence for the sake of the President? He never intended that we should take any such notice of his reference to these societies; but if the popularity of the President has, in the present case, been committed, let those who have hatched this thing, and who have brought it forward, answer for the consequences… .
Mr. Sedgwick thought that the President would have been defective in his duty had he omitted to mention what he religiously believed to be true, viz: that the Democratic societies had in a great measure originated the late disturbances. It was the indispensable duty of the President to speak as he had spoken. The present amendment [of Mr. Fitzsimons] would have a tendency to plunge these societies into contempt and to sink them still farther into abhorrence and detestation. He pronounced them to be illicit combinations. One gentleman [Mr. Nicholas] tells you that he despises them most heartily. Another [Mr. Lyman] says that they begin to repent. Will the American people perversely propose to shoulder and bolster up these despised and repenting societies, which are now tumbling into dust and contempt? Their conduct differed as far from a fair and honorable investigation, as Christ and Belial. They were men prowling in the dark. God is my judge, said Mr. S., that I would not wish to check a fair discussion.
One gentleman [Mr. McDowell] had told the Committee, that the assumption and Funding transactions were a cause of public discontent. It has been the trick of these people to make this assertion. They have said that the Funding System is mass of favoritism, for the purpose of erecting an oppressive aristocracy and a paper nobility. There is not a man among them who is able to write and who does not know that these assertions are false. As to the assumption of the debts of individual States, it has been said that this measure was undertaken for the purpose of making up a large debt. There was no such thing. Before the adoption of the new Constitution, of which Mr. S., considered the Funding and Assumption Systems to be essential preliminaries, the credit and commerce of America were declining or gone. The States were disagreeing at home, and the American name was disgraced abroad. It was not to be supposed that every one of the measures of the new Government could please every body. Among the rest, excise was objected to in both Houses of Congress; but at last the good sense of the people acquiesced. At this crisis, a foreign agent (Genet) landed at Charleston. On his way to this city he was attended by the hosannahs of all the disaffected. He did the utmost mischief that was in his power; and in consequence of his efforts, Democratic societies sprung up… .
He said that it was to be noticed, and he proclaimed it here, that antecedent to the Democratic societies making their appearance, the flame of discontent seemed smothered. But these men told the people that they would be slaves. Was not this wrong? They should have told what was well done as well as ill done. From Portland, in Maine, to the other end of the Continent, have they ever approved of one single act? They have scrutinized with eagle eyes into every fault. Whom are we to trust them or the man that more than any other human man ever did, possesses the affection of a whole people? The question is, shall we support the Constitution or not? …
Wednesday, 26 November
… Mr. Ames stated that it was the duty of the President, by the Constitution, to inform Congress of the state of the Union. That he had accordingly in his speech stated the insurrection and the causes which (he thought) had brought it on. Among them, he explicitly reckons the self-created societies and combinations of men to be one. … He said further that an amendment was now offered to the House, expressed, as nearly as may be in the very words of the President; an objection is urged against this amendment that the proposition contained in it is not true in fact. It is also said that although it were true, it would be dangerous to liberty to assent to it in our Answer to the Speech. It is moreover, say they, improper, unnecessary, and indecent to mention the self-created societies. The amendment now urged upon the House has been put to vote in the Committee of the Whole House, and rejected. What will the world say, and that too from the evidence of our own records, if we reject it again in the House? …
The right to form political clubs has been urged as if it had been denied. It is not, however, the right to meet, it is the abuse of the right after they have met, that is charged upon them. Town meetings are authorized by law, yet they may be called for seditious or treasonable purposes. The legal right of the voters in that case would be an aggravation, not an excuse, for the offence. But if persons meet in a club with an intent to obstruct the laws, their meeting is no longer innocent or legal; it is a crime.
The necessity for forming clubs has been alleged with some plausibility in favor of all the states except New England, because town meetings are little known and not practicable in a thinly settled country. But if people have grievances are they to be brought to a knowledge of them only by clubs? Clubs may find out more complaints against the laws than the sufferers themselves had dreamed of. The number of those which a man will learn from his own and his neighbor’s experience will be quite sufficient for every salutary purpose of reform in the laws or of relief to the citizens. He may petition Congress, his own Representatives will not fail to advocate or, at least, to present and explain his memorial. As a juror, he applies the law; as an elector, he effectually controls the legislators. A really aggrieved man will be sure of sympathy and assistance within this body and with the public. The most zealous advocate of clubs may think them useful, but he will not insist on their being indispensably so.
The plea for their usefulness seems to rest on their advantage of meeting for political information. The absurdity of this pretence could be exposed in a variety of views. I shall decline (said Mr. A.) a detailed consideration of the topic. I would just ask, however, whether the most inflamed party men, who usually lead the clubs, are the best organs of authentic information? Whether they meet in darkness; whether they hide their names, their numbers, and their doings; whether they shut their doors to admit information?
A laudable zeal for inquiry need not shun those who could satisfy it; it need not blush in the daylight. With open doors and an unlimited freedom of debate, political knowledge might be introduced even among the intruders.
But, instead of exposing their affected pursuit of information, it will be enough to show hereafter what they actually spread among the people—whether it is information or, in the words of the President, “jealousies, suspicions and accusations of the Government;” whether, disregarding the truth, they have not fomented the daring outrages against the social order and the authority of the laws. (Vide the President’s speech.)
They have arrogantly pretended sometimes to be the people and sometimes the guardians, the champions of the people. They affect to feel more zeal for a popular government, and to enforce more respect for republican principles, than the real Representatives are admitted to entertain. Let us see whether they are set up for the people or in opposition to them and their institutions.
Will any reflecting person suppose, for a moment, that this great people, so widely extended, so actively employed, could form a common will and make that will law in their individual capacity, and without representation? They could not. Will clubs avail them as a substitute for representation? A few hundred persons only are members of clubs, and if they should act for the others, it would be an usurpation, and the power of the few over the many, in every view infinitely worse than sedition itself, will represent this Government… .
We are asked, with some pathos, will you punish clubs with your censure, unheard, untried, confounding the innocent with the guilty? Censure is not punishment, unless it is merited, for we merely allude to certain self-created societies, which have disregarded the truth and fomented the outrages against the laws. Those which have been innocent will remain uncensured. It is said, worthy men belong to those clubs. They may be as men not wanting in merit, but when they join societies which are employed to foment outrages against the laws, they are no longer innocent. They become bad citizens. If innocence happens to stray into such company, it is lost. The men really good will quit such connexions, and it is a fact that the most respected of those who were said to belong to them have long ago renounced them. Honest, credulous men may be drawn in to favor very bad designs, but so far as they do it, they deserve the reproach which this vote contains, that of being unworthy citizens.
If the worst men in society have led the most credulous and inconsiderate astray, the latter will undoubtedly come to reflection the sooner for an appeal to their sense of duty. This appeal is made in terms which truth justifies and which apply only to those who have been criminal… .
In the course of his remarks, Mr. A. strongly insisted that the vote was not indefinite in its terms. Societies were not reprobated because they were self-made, nor because they were political societies. Everybody has readily admitted that they might be innocent as they have been generally imprudent. It is such societies as have been regardless of the truth and have fomented the outrages against the law, &c.
Nor is the intention of this amendment to flatter the President, as it has been intimated. He surely has little need of our praise on any personal account. This late signal act of duty is already with his grateful country, with faithful history: nor is it in our power, or in those of any offended self-created societies, to impair that tribute which will be offered to him. As little ground is there for saying that it is intended to stifle the freedom of speech and of the press. The question is, simply, will you support your Chief Magistrate? Our vote does not go merely to one man and to his feelings, it goes to the trust. When clubs are arrayed against your Government, and your Chief Magistrate decidedly arrays the militia to suppress their insurrection, will you countenance or discountenance the officer? Will you ever suffer this House, the country, or even one seditious man in it, to question for an instant whether your approbation and co-operation will be less prompt and cordial than his efforts to support the laws? Is it safe, is it honorable, to make a precedent, and that no less solemn than humiliating, which will authorize, which will compel every future President to doubt whether you will approve him or the clubs? The President now in office would doubtless do his duty promptly and with decision in such a case. But can you expect it of human nature? and if you could, would you put it at risk whether in future a President shall balance between his duty and his fear of your censure. The danger is that a Chief Magistrate, elective as ours is, will temporize, will delay, will put the laws into treaty with offenders, and will even insure a civil war, perhaps the loss of our free Government, by the want of proper energy to quench the first sparks. You ought, therefore, on every occasion, to show the most cordial support to the Executive in support of the laws.
This is the occasion. If it is dangerous to liberty, against right and justice, against truth and decency, to adopt the amendment, as it has been argued, then the President and Senate have done all this… .
Thursday, 27 November
Mr. Madison—said he entirely agreed with those gentlemen who had observed that the house should not have advanced into this discussion, if it could have been avoided—but having proceeded thus far it was indispensably necessary to finish it.
Much delicacy had been thrown into the discussion in consequence of the chief magistrate; he always regretted the circumstance when this was the case.
This, he observed, was not the first instance of difference in opinion between the President and this House. It may be recollected that the President dissented both from the Senate and this House on a particular law (he referred to that apportioning the representatives)—on that occasion he thought the President right. On the present question, supposing the President really to entertain the opinion ascribed to him, it affords no conclusive reason for the House to sacrifice its own judgment… .
Members seem to think that in cases not cognizable by law there is room for the interposition of the House. He conceived it to be a sound principle that an action innocent in the eye of the law could not be the object of censure to a legislative body. When the people have formed a constitution, they retain those rights which they have not expressly delegated. It is a question whether what is thus retained can be legislated upon. Opinions are not the objects of legislation. You animadvert on the abuse of reserved rights—how far will this go? It may extend to the liberty of speech and of the press.
It is in vain to say that this indiscriminate censure is no punishment. If it falls on classes or individuals it will be a severe punishment. He wished it to be considered how extremely guarded the Constitution was in respect to cases not within its limits. Murder or treason cannot be noticed by the legislature. Is not this proposition, if voted, a vote of attainder? To consider a principle, we must try its nature and see how far it will go; in the present case he considered the effects of the principle contended for would be pernicious. If we advert to the nature of republican government, we shall find that the censorial power is in the people over the government, and not in the government over the people.
As he had confidence in the good sense and patriotism of the people, he did not anticipate any lasting evil to result from the publications of these societies; they will stand or fall by the public opinion; no line can be drawn in this case. The law is the only rule of right; what is consistent with that is not punishable; what is not contrary to that, is innocent, or at least not censurable by the legislative body.
With respect to the body of the people, (whether the outrages have proceeded from weakness or wickedness) what has been done and will be done by the Legislature will have a due effect. If the proceedings of the government should not have an effect, will this declaration produce it? The people at large are possessed of proper sentiments on the subject of the insurrection—the whole continent reprobates the conduct of the insurgents, it is not therefore necessary to take the extra step. The press he believed would not be able to shake the confidence of the people in the government. In a republic, light will prevail over darkness, truth over error—he had undoubted confidence in this principle. If it be admitted that the law cannot animadvert on a particular case, neither can we do it. Governments are administered by men—the same degree of purity does not always exist. Honesty of motives may at present prevail—but this affords no assurance that it will always be the case—at a future period a Legislature may exist of a very different complexion from the present; in this view, we ought not by any vote of ours to give support to measures which now we do not hesitate to reprobate. The gentleman from Georgia had anticipated him in several remarks—no such inference can fairly be drawn as that we abandon the President should we pass over the whole business. The vote passed this morning for raising a force to complete the good work of peace, order, and tranquility begun by the executive, speaks quite a different language from that which has been used to induce an adoption of the principle contended for.
Mr. Madison adverted to precedents—none parallel to the subject before us existed. The inquiry into the failure of the expedition under St. Clair was not in point. In that case the house appointed a committee of enquiry into the conduct of an individual in the public service—the democratic societies are not. He knew of nothing in the proceedings of the Legislature which warrants the house in saying that institutions confessedly not illegal were subjects of legislative censure… .
The question was then put, Shall the words “self-created societies, and” be replaced in the amendment of Mr. Fitzsimons? This was carried by a majority of forty-seven against forty-five… .
Friday, 28 November
The Address, as amended, was then read throughout at the Clerk’s table, as follows:
Sir: The House of Representatives, calling to mind the blessings enjoyed by the people of the United States, and especially the happiness of living under constitutions and laws which rest on their authority alone, could not learn with other emotions than those you have expressed that any part of our fellow citizens should have shown themselves capable of an insurrection. And we learn, with the greatest concern, that any misrepresentations whatever of the Government and its proceedings, either by individuals or combinations of men, should have been made and so far credited as to foment the flagrant outrage which has been committed on the laws. We feel, with you, the deepest regret at so painful an occurrence in the annals of our country. As men regardful of the tender interests of humanity, we look with grief at scenes which might have stained our land with civil blood. As lovers of public order, we lament that it has suffered so flagrant a violation: as zealous friends of Republican Government, we deplore every occasion which, in the hands of its enemies, may be turned into a calumny against it.
This aspect of the crisis, however, is happily not the only one which it presents. There is another, which yields all the consolations which you have drawn from it. It has demonstrated to the candid world, as well as to the American People themselves, that the great body of them, everywhere, are equally attached to the luminous and vital principle of our Constitution which enjoins that the will of the majority shall prevail; that they understand the indissoluble union between true liberty and regular government; that they feel their duties no less than they are watchful over their rights; that they will be as ready, at all times, to crush licentiousness as they have been to defeat usurpation: in a word, that they are capable of carrying into execution that noble plan of self-government which they have chosen as the guarantee of their own happiness and the asylum for that of all, from every clime, who may wish to unite their destiny with ours… .
James Madison to James Monroe 4 December 1794
… You will learn from the newspapers and official communications the unfortunate scene in the Western parts of Pennsylvania which unfolded itself during the recess. The history of its remote & immediate causes, the measures produced by it, and the manner in which it has been closed, does not fall within the compass of a letter. It is probable also that many explanatory circumstances are yet but imperfectly known. I can only refer to the printed accounts which you will receive from the Department of State and the comments which your memory will assist you in making on them. The event was in several respects a critical one for the cause of liberty, and the real authors of it, if not in the service, were in the most effectual manner, doing the business of despotism. You well know the general tendency of insurrections to increase the momentum of power. You will recollect the particular effect of what happened some years ago in Massachusetts. Precisely the same calamity was to be dreaded on a larger scale in this case. There were enough as you may well suppose ready to give the same turn to the crisis, and to propagate the same impressions from it. It happened most auspiciously, however, that with a spirit truly republican, the people everywhere and of every description condemned the resistance to the will of the majority and obeyed with alacrity the call to vindicate the authority of the laws. You will see in the answer of the House of Representatives to the President’s speech that the most was made of this circumstance as an antidote to the poisonous influence to which Republicanism was exposed. If the insurrection had not been crushed in the manner it was I have no doubt that a formidable attempt would have been made to establish the principle that a standing army was necessary for enforcing the laws. When I first came to this City about the middle of October, this was the fashionable language. Nor am I sure that the attempt would not have been made if the President could have been embarked in it, and particularly if the temper of N. England had not been dreaded on this point. I hope we are over that danger for the present. You will readily understand the business detailed in the newspapers relating to the denunciation of the “self created societies.” The introduction of it by the President was perhaps the greatest error of his political life. For his sake, as well as for a variety of obvious reasons, I wish’d it might be passed over in silence by the House of Representatives. The answer was penned with that view; and so reported. This moderate course would not satisfy those who hoped to draw a party-advantage out of the President’s popularity. The game was to connect the democratic societies with the odium of the insurrection—to connect the Republicans in Congress with those Societies—to put the President ostensibly at the head of the other party, in opposition to both, and by these means prolong the illusions in the North—& try a new experiment on the South. To favor the project, the answer of the Senate was accelerated & so framed as to draw the President into the most pointed reply on the subject of the Societies. At the same time, the answer of the House of Representatives was procrastinated till the example of the Senate & the commitment of the President could have their full operation. You will see how nicely the House was divided, and how the matter went off. As yet the discussion has not been revived by the newspaper combatants. If it should and equal talents be opposed, the result can not fail to wound the President’s popularity more than anything that has yet happened. It must be seen that no two principles can be either more indefensible in reason or more dangerous in practice—than that 1. arbitrary denunciations may punish what the law permits & what the Legislature has no right, by law, to prohibit—and that 2. the Government may stifle all censures whatever on its misdoings; for if it be itself the judge it will never allow any censures to be just, and if it can suppress censures flowing from one lawful source it may those flowing from any other—from the press and from individuals as well as from Societies, &c… .
Democratic Society of Pennsylvania 9 October 1794
Sensations of the most unpleasant kind must have been experienced by every reflecting person who is not leagued against the liberties of this country on hearing and reading the various charges and invectives fabricated for the destruction of the Patriotic Societies in America. So indefatigable are the aristocratical faction among us in disseminating principles unfriendly to the rights of man—at the same time so artful as to envelop their machinations with the garb of patriotism, that it is much feared, unless vigilence, union and firmness mark the conduct of all real friends to equal liberty, their combinations and schemes will have their desired effect.
The enemies of liberty and equality have never ceased to traduce us—even certain influential and public characters have ventured to publicly condemn all political societies. When denunciations of this kind are presented to the world supported by the influence of character and great names, they too frequently obtain a currency which they are by no means entitled to either on the score of justice, propriety, or even common sense. Sometimes by a nice stroke of policy, or by a combination of some favorable circumstance, which the address of the Liberticide turns to his advantage, the imposition gains ground even with the best informed men. As the history of other countries as well as our own has taught us that this influence has too frequently given a death wound to freedom, it is the indispensable duty of every man who is desirous of enjoying and transmitting to posterity equal liberty to guard against its pernicious effects.
Our society with others established upon similar principles in this and the different states were early viewed with a jealous eye by those who were hostile to the rights of man. It has ever been a favorite and important pursuit with aristocracy to stifle free enquiry, to envelop its proceedings in mystery, and as much as possible, to impede the progress of political knowledge. No wonder therefore that societies whose objects were to cultivate a just knowledge of rational liberty—to inquire into the public conduct of men in every department of government, and to exercise those constitutional rights which as freemen they possess, should become obnoxious to designing men. Accordingly, their shafts have been darted from many quarters. We have been accused of an intention to destroy the government. The old cry of anarchy and anti-federalism have been played off. The inconsistency of our adversaries is remarkable. At one time we were described as too insignificant to merit attention—too contemptable to be dangerous; again—so numerous and so wicked as to endanger the administration—so formidable as to be no longer tolerated.
Unfortunately, a favorable circumstance for the designs of aristocracy lately took place—we mean an insurrection in the western counties of this state. A number of people, dreading the oppressive effects of the Excise Law, were carried to pursue redress by means unwarrantable and unconstitutional. Passion instead of reason having assumed the direction of their affairs, disorder and disunion were the consequences. The executive, however, by marching an army into that country, many of whom were members of this and other political societies, soon obliged those people to acknowledge obedience to the laws. Now to the astonishment and indignation of every good citizen, there are not wanting some in administration who are attempting to persuade the people in a belief that the insurrection was encouraged and abetted by the wicked designs of certain self-created societies—that no cause of discontent with respect to the laws or administration could reasonably exist. Strange that such palpable absurdities are offered in the face of day. Is it not an indisputable fact that the complaints of the western people against the excise law have sounded in the ears of Congress for some time before the existence of the present Patriotic Societies? Is it not equally true that the general voice of America have considered their complaints as well founded? [If] the public opinion was ever undubitably manifested on any occasion, it was at the late election in this city, where the citizens exhibited a decided proof of their abhorrence of excise systems, even at the fountain head of aristocracy, by depriving of a longer seat in the public councils of this country, one of its supporters and placing in his stead a man who is supposed unfriendly to that species of revenue—They indeed nobly and successfully exercised right of election, which certainly is the most proper and efficacious mode of address.
That man must have passed through life without much reflection who does not know that in other countries as well as our own, aristocracy has ever been disposed to proclaim every real or imaginary delinquency on the part of the people a reason for depriving them of their rights, and for strengthening the arm of government. In Europe, we find, the present diabolical combination leagued against the rights of man have endeavored to promulgate the abominable doctrine that the swinish multitude are unequal to the task of governing themselves by reason of their deficiency in virtue and knowledge. Hence they claim a right to subjugate their fellow-creatures, and to compel them to relinquish those invaluable privileges which they derived from the deity. Some of our temporary rulers seemed to have adopted the same righteous policy. They too are striving to propagate an opinion that public measures ought only to be discussed by public characters. What! Shall the servants of the people who derive their political consequence from the people and who, at their pleasure, may be stripped of all authority if found to abuse it, dispute the right of their employers to discuss their public proceedings? Do they imagine that all knowledge, public spirit and virtue are exclusively confined to themselves? Is it already an offence of the deepest dye to meet and consult on matters which respect our freedom and happiness? Should this be the case, our future prospects must be deplorable indeed! The liberty of the press, that luminary of the mind, as emphatically expressed may be next proscribed: for such is the nature of despotism that having made some encroachments upon the liberties of the people, its rapacious jaws are constantly extended to swallow every vestige of freedom. If we are thus, without a shadow of reason or justice, to be filched of our rights—if we are not permitted to detect and expose the iniquity of public men and measures—if it be deemed a heresy to question the infallibility of the rulers of our land, in the name of God to what purpose did we struggle thro’ and maintain a seven years war against a corrupt court, unless to submit to be “hewers of wood and drawers of water” at home, for surely foreign domination is not more grievous than domestic.
In this view of the subject fellow-citizens, it may be proper to inquire, whether you are prepared to relinquish those invaluable privileges obtained at the expense of so much blood, and recognized by our constitution? Whether you are disposed to bend the knee to Baal? We trust and hope you will spurn at the idea. Let us then exercise the right of peaceably meeting for the purpose of considering public affairs—to pass strictures upon any proceedings which are not congenial with freedom—and to propose such measures as in our opinion, may advance the general weel. Let us combat with Herculean strength the fashionable tenet of some among us that the people have no right to be informed of the actions and proceedings of government. Nothing, surely, presents a stronger barrier against the encroachments of tyranny than a free public discussion—by this means the attention is roused—the sources of intelligence are multiplied and truth is developed.
Where then is the propriety of questioning this important privilege? Good rulers will not shrink from public inquiry, because it is to their honor and advantage to encourage free disquisitions. It is to the policy only of a corrupt administration to suppress all animadversions on their conduct, and to persecute the authors of them. If the laws of our country are the echo of the sentiments of the people is it not of importance that those sentiments should be generally known? How can they be better understood than by a free discussion, publication and communication of them by means of political societies? And so long as they conduct their deliberations with prudence and moderation, they merit attention.
Among other rights secured to the people by the constitution is the right of election. This, Fellow-Citizens, is certainly one of the most important. Political societies by combining the attention and exertions of the people to this great object, add much to the preservation of liberty. Aristocracy will, as heretofore, preach up the excellency of our Constitution—its balances and checks against tyranny. Let not this however, lull us into a fatal security or divert us from the great objects of our duty. Let us keep in mind that supiness with regard to public concerns is the direct road to slavery, while vigilance and jealousy are the safeguards of liberty.
We sincerely hope that wisdom and harmony may attend all the deliberations in your laudable and patriotic society, and that those institutions may be the means, as we doubt not, of securing and perpetuating equal liberty to the most remote posterity… .
Jay’s Treaty and Washington’s Farewell
John Jay’s nomination as minister plenipotentiary to Britain was confirmed by the Senate on 19 April 1794. He arrived in England in June and negotiated against a background of British military successes in the West Indies and the Whiskey Rebellion at home. On 19 November he concluded a treaty that addressed most of the issues which had divided the two nations since the end of the Revolutionary War. Britain agreed to evacuate its forts in the American Northwest, which she had continued to occupy in violation of the Treaty of Peace, and—if America agreed to cease its carrying trade in staples such as cotton, sugar, and molasses—to admit small American vessels to direct trade with the British West Indies. In exchange, the United States agreed to abandon its traditional insistence that the neutral flag protected enemy goods being carried by neutral vessels, to accept a narrower definition of contraband of war, and to grant Britain most-favored-nation status in its ports. Disputes over boundaries, American claims for illegal seizures, and demands by British creditors for American payment of prewar debts were referred to joint commissions. Disagreements over loyalist claims against the states, American claims for slaves carried away by the British at the end of the war, and American objections to British impressment of sailors from American vessels were left unresolved.
alexander james dallas “Features of Mr. Jay’s Treaty” 18 July–7 August 1795
Several newspaper series, many of which were reprinted in other papers and also published separately as pamphlets or collected by Matthew Carey in a work called the American Remembrancer, condemned the treaty with Britain in great detail. Among the best known were the sixteen essays of “Cato” (Robert R. Livingston), which appeared originally in the New York Argus between 15 July and 30 September 1795, Tench Coxe’s “Examination of the Pending Treaty with Britain,” and the following five-part examination, published originally in the American Daily Advertiser, by the state secretary of Pennsylvania.
I. The origin and progress of the negotiation for the treaty are not calculated to excite confidence.
1. The administration of our government have, seemingly at least, manifested a policy favorable to Great Britain and adverse to France.
2. But the House of Representatives of Congress, impressed with the general ill conduct of Great Britain towards America, were adopting measures of a mild, though retaliating, nature to obtain redress and indemnification. The injuries complained of were, principally,—1st, the detention of the western posts; 2dly, the delay in compensating for the Negroes carried off at the close of the war; and 3dly, the spoliations committed on our commerce. The remedies proposed were, principally,—1st, the commercial regulations of Mr. Madison; 2dly, the non-intercourse proposition of Mr. Clarke; 3dly, the sequestration motion of Mr. Dayton; 4thly, an embargo; and 5thly, military preparation.
3. Every plan of the legislature was, however, suspended, or rather annihilated, by the interposition of the executive authority; and Mr. Jay, the Chief Justice of the United States, was taken from his judicial seat to negotiate with Great Britain… .
4. The political dogmas of Mr. Jay are well known; his predilection in relation to France and Great Britain has not been disguised, and even on the topic of American complaints, his reports, while in the office of Secretary for Foreign Affairs, and his adjudications while in the office of Chief Justice, were not calculated to point him out as the single citizen of America fitted for the service in which he was employed. … Mr. Jay was driven from the ground of an injured to the ground of an aggressing party; he made atonement for imaginary wrongs before he was allowed justice for real ones; he converted the resentments of the American citizens (under the impressions of which he was avowedly sent to England) into amity and concord; and seems to have been so anxious to rivet a commercial chain about the neck of America that he even forgot, or disregarded, a principal item of her own produce (cotton) in order to make a sweeping sacrifice to the insatiable appetite of his maritime antagonist. …
5. The treaty being sent here for ratification, the President and the Senate pursue the mysterious plan in which it was negotiated. It has been intimated that, till the meeting of the Senate, the instrument was not communicated even to the most confidential officers of the government; and the first resolution taken by the Senate was to stop the lips and ears of its members against every possibility of giving or receiving information. …
6. But still the treaty remains unratified; for, unless the British government shall assent to suspend the obnoxious twelfth article (in favor of which, however, many patriotic members declared their readiness to vote), the whole is destroyed by the terms of the ratification; and if the British government shall agree to add an article allowing the suspension, the whole must return for the reconsideration of the Senate. …
II. Nothing is settled by the treaty.
1. The western posts are to be given up.
2. The northern boundary of the United States is to be amicably settled.
3. The river meant by St. Croix River in the treaty is to be settled.
4. The payment for spoliations is to be adjusted and made.
5. The ultimate regulation of the West India trade is to depend on a negotiation to be made in the course of two years after the termination of the existing war.
6. The question of neutral bottoms making neutral goods is to be considered at the same time.
7. The articles that may be deemed contraband are to be settled at the same time.
8. The equalization of duties laid by the contracting parties on one another is to be hereafter treated of. …
III. The treaty contains a colorable, but no real, reciprocity.
1. The second article provides for the surrender of the western posts in June, 1796; but it stipulates that, in the mean time, the citizens of the United States shall not settle within the precincts and jurisdiction of those posts; that the British settlers there shall hold and enjoy all their property of every kind, real and personal; and that when the posts are surrendered, such settlers shall have an election either to remain British subjects or to become American citizens. Query—Were not the western posts and all their precincts and jurisdiction, the absolute property of the United States by the treaty of peace? Query—What equivalent is given for this cession of the territory of the United States to a foreign power? Query—How far do the precincts and jurisdiction of the posts extend? …
2. The third article stipulates that the two contracting parties may frequent the ports of either party on the eastern banks of the Mississippi. Query—What ports has Great Britain on the eastern banks of the Mississippi?
3. The third article likewise opens an amicable intercourse on the lakes; but excludes us from their seaports and the limits of the Hudson’s Bay Company … while Great Britain is in fact admitted to all the advantages of which our Atlantic rivers are susceptible.
4. The sixth and seventh articles provide for satisfying every demand which Great Britain has been able, at any time, to make against the United States (the payment of the British debts due before the war, and the indemnification for vessels captured within our territorial jurisdiction); but the provision made for the American claims upon Great Britain is not equally explicit or efficient in its terms, nor is it coextensive with the object. Query—Why is the demand for the Negroes carried off by the British troops suppressed, waived, or abandoned? The preamble to the treaty recites an intention to terminate the differences between the nations: was not the affair of the Negroes a difference between the nations? and how has it been terminated?
5. The ninth article stipulates that the subjects of Great Britain and the citizens of the United States, respectively, who now hold lands within the territories of either nation, shall hold the lands in the same manner as natives do. Query—What is the relative proportion of lands so held? Query—The effect to revive the claims of British subjects who, either as traitors or aliens, have forfeited their property within the respective States? …
6. The tenth article declares that neither party shall sequester or confiscate the debts or property in the funds, etc. belonging to the citizens of the other in case of a war or of national differences. Great Britain has fleets and armies: America has none. Query—Does not this, supported by other provisions, which forbid our changing the commercial situation of Great Britain, or imposing higher duties on her than on other nations, deprive the United States of their best means of retaliation and coercion? Query—Is it not taking from America her only weapon of defense; but from Great Britain the least of two weapons which she possesses? …
7. The twelfth article opens to our vessels, not exceeding seventy tons, an intercourse with the British West India Islands during the present war and for two years after; but it prohibits our exporting from the United States molasses, sugar, cocoa, coffee, or cotton to any part of the world, whether those articles are brought from British, French, or Spanish islands, or even raised (as cotton is) within our own territory. …
IV. The treaty is an instrument of party.
1. The discussions during the session of congress in which Mr. Jay’s mission was projected evinced the existence of two parties upon the question,—whether it was more our interest to be allied with the republic of France than with the monarchy of Great Britain. Query—Does not the general complexion of the treaty decide the question in favor of the alliance with Great Britain? …
2. The measures proposed by one party to retaliate the injuries offered by Great Britain to our territorial, commercial, and political rights were opposed by the other, precisely as the treaty opposes them. For instance: (1) Mr. Madison projects a regulation of our commerce with Great Britain by which the hostile spirit of that nation might be controlled on the footing of its interest. The treaty legitimizes the opposition which was given to the measure in Congress by declaring, in article fifteen, “that no other or higher duties shall be paid by the ships or merchandise of the one party in the ports of the other than such as are paid by the like vessels or merchandise of all other nations; nor shall any other or higher duty be imposed in one country on the importation of any articles of the growth, produce, or manufactures of the other than are, or shall be, payable on the importation of the like articles of the growth, etc. of any foreign country.” (2) Mr. Clarke proposed to manifest and enforce the public resentment by prohibiting all intercourse between the two nations. The treaty destroys the very right to attempt that species of national denunciation by declaring, in the same article, that “no prohibition shall be imposed on the exportation or importation of any articles to or from the territories of the two parties, respectively, which shall not equally extend to all other nations.” (3) But Mr. Dayton moves, and the House of Representatives supports his motion, for the sequestration of British debts, etc., to insure a fund for paying the spoliations committed on our trade. The treaty … despoils the government of this important instrument to coerce a powerful yet interested adversary into acts of justice… . (4) It has, likewise, been thought by some politicians that the energies of our executive department require every aid that can be given to them in order more effectually to resist and control the popular branches of the government. Hence we find the treaty-making power employed in that service; and Congress cannot exercise a legislative discretion on the prohibited points (though it did not participate in making the cession of its authority) without a declaration of war against Great Britain. George the Third enjoys by the treaty a more complete negative to bind us as states than he ever claimed over us as colonies.
V. The treaty is a violation of the general principles of neutrality and is in collision with the positive previous engagements which subsist between America and France.
1. It is a general principle of the law of nations that during the existence of a war neutral powers shall not, by favor or by treaty, so alter the situation of one of the belligerent parties as to enable him more advantageously to prosecute hostilities against his adversary. If, likewise, a neutral power shall refuse or evade treating with one of the parties, but eagerly enter into a treaty with the other, it is a partiality that amounts to a breach of neutrality. …
2. That we have, on the one hand, evaded the overtures of a treaty with France, and on the other hand, solicited a treaty from Great Britain, are facts public and notorious. Let us inquire, then, what Great Britain has gained on the occasion, to enable her more advantageously to prosecute her hostilities against France.
(1) Great Britain has gained time. As nothing is settled by the treaty, she has it in her power to turn all the chances of the war in her favor, and, in the interim, being relieved from the odium and embarrassment of adding America to her enemies, the current of her operations against France is undivided and will of course flow with greater vigor and certainty. …
(2) Great Britain gains supplies for her West India colonies; and that for a period almost limited to the continuance of the war, under circumstances which incapacitate her from furnishing the colonial supplies herself; and, indeed, compel her to invite the aid of all nations in furnishing provisions for her own domestic support. The supplies may be carried to the islands either in American bottoms not exceeding seventy tons, or in British bottoms of any tonnage. …
(5) The admission of Great Britain to all the commercial advantages of the most favored nation and the restraints imposed upon our legislative independence, as stated in the party feature of the treaty, are proofs of predilection and partiality in the American government which cannot fail to improve the resources of Great Britain and to impair the interests as well as the attachments of France.
(6) The assent to the seizure of all provision ships, and that, in effect, upon any pretext, at a period when Great Britain is distressed for provisions as well as France, and when the system of subduing by famine has been adopted by the former against the latter nation, is clearly changing our position as an independent republic in a manner detrimental to our original ally. …
(7) Great Britain has gained the right of preventing our citizens from being volunteers in the armies or ships of France. This is not simply the grant of a new right to Great Britain, but is, at the same time, a positive deprivation of a benefit hitherto enjoyed by France. Neither the laws of nations, nor our municipal constitution and laws, prohibited our citizens from going to another country and there, either for the sake of honor, reward, or instruction, serving in a foreign navy or army. …
3. But it is time to advert to the cases of collision between the two treaties; and these are of such a nature as to produce a violation of the spirit, though not a positive violation of the words, of the previous engagements that subsist between France and America,—they are causes of offense, and clash in the highest degree. …
(2) By our treaty with France, and, indeed, with several other nations, it is expressly stipulated that free vessels shall make free goods. … While France adheres to her treaty, by permitting British goods to be protected by American bottoms, is it honest, honorable, or consistent on our part to enter voluntarily into a compact with the enemies of France for permitting them to take French goods out of our vessels? We may not be able to prevent, but ought we to agree to the proceeding? Let the question be repeated—Does not such an express agreement clash with our express, as well as implied, obligations to France?
(3) By enumerating as contraband articles in the treaty with Great Britain certain articles which are declared free in the treaty with France, we may, consistently with the latter, supply Great Britain; but, consistently with the former, we cannot supply France. …
VI. The treaty with Great Britain is calculated to injure the United States in the friendship and favor of other foreign nations.
1. That the friendship and favor of France will be affected by the formation of so heterogeneous an alliance with her most implacable enemy cannot be doubted, if we reason upon any scale applicable to the policy of nations or the passions of man. From that republic, therefore, if not an explicit renunciation of all connection with the United States, we may at least expect an alteration of conduct; and, finding the success which has flowed from the hostile treatment that Great Britain has shown towards us, she may be at length tempted to endeavor at extorting from fear what she has not been able to obtain from affection. …
VII. The treaty with Great Britain is impolitic and pernicious in respect to the domestic interests and happiness of the United States.
1. If it is true, and incontrovertibly it is true, that the interest and happiness of America consist, as our patriotic President, in his letter to Lord Buchan, declares, “in being little heard of in the great world of politics; in having nothing to do in the political intrigues or the squabbles of European nations; but, on the contrary, in exchanging commodities, and living in peace and amity with all the inhabitants of the earth, and in doing justice to and in receiving it from every power we are connected with”; it is likewise manifest that all the wisdom and energy of those who administer our government should be constantly and sedulously employed to preserve or to attain for the United States that enviable rank among nations. To refrain from forming hasty and unequal alliances, to let commerce flow in its own natural channels, to afford every man, whether alien or citizen, a remedy for every wrong, and to resist, on the first appearance, every violation of our national rights and independence, are the means best adapted to the end which we contemplate.
VIII. The British treaty and the Constitution of the United States are at war with each other. …
The second section of the second article of the Constitution says 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.”
To the exercise of this power no immediate qualification or restriction is attached; but must we, therefore, suppose that the jurisdiction of the President and Senate, like the jurisdiction ascribed to the British Parliament, is omnipotent? …
Whenever the President and two-thirds of the Senate shall be desirous to counteract the conduct of the House of Representatives; whenever they may wish to enforce a particular point of legislation; or whenever they shall be disposed to circumscribe the power of a succeeding Congress—a treaty with a foreign nation, nay, a talk with a savage tribe, affords the ready and effectual instrument for accomplishing their views, since the treaty or the talk will constitute the supreme law of the land. …
By the Constitution, Congress is empowered to regulate commerce with foreign nations.
By the treaty, the commerce of the United States, not only directly with Great Britain, but incidentally with every foreign nation, is regulated. …
Can a power so given to one department be divested by implication in order to amplify and invigorate another power given in general terms to another department? …
Such, upon the whole, are “The Features of Mr. Jay’s Treaty.” … If it shall, in any degree, serve the purposes of truth, by leading, through the medium of a candid investigation, to a fair, honorable, and patriotic decision, the design with which it was written will be completely accomplished, whetherratificationorre-jectionis the result.
Memorial of the Citizens of Philadelphia July 1795
This petition to the president, published in Dunlap and Claypoole’s American Daily Advertiser on 28 July 1795, was typical of those requesting Washington to refuse his consent.
That your memorialists, sincerely and affectionately attached to you from a sense of the important services which you have rendered to the United States and a conviction of the purity of the motives that will forever regulate your public administration, do, on an occasion in which they feel themselves deeply interested, address you as a friend and patriot: as a friend who will never take offense at what is well intended and as a patriot who will never reject what may be converted to the good of your country.
That your memorialists entertain a proper respect for your constitutional authority; and, whatever may be the issue of the present momentous question, they will faithfully acquiesce in the regular exercise of the delegated powers of the government; but they trust that in the formation of a compact which is to operate upon them and upon their posterity in their most important internal as well as external relations, which, in effect, admits another government to control the legislative functions of the union, and which, if found upon experience to be detrimental, can only be repealed by soliciting the assent or provoking the hostilities of a foreign power, you will not deem it improper or officious in them thus anxiously, but respectfully, to present a solemn testimonial of their public opinion, feelings, and interest. …
The treaty is objected to,
1st. Because it does not provide for a fair and effectual settlement of the differences that previously subsisted between the United States and Great Britain. …
2. Because, by the treaty, the federal government accedes to restraints upon the American commerce and navigations, internal as well as external, that embrace no principle of real reciprocity and are inconsistent with the rights and destructive to the interests of an independent nation. …
3. Because the treaty is destructive to the domestic independence and prosperity of the United States. …
4. Because the treaty surrenders certain inherent powers of an independent government, which are essential in the circumstances of the United States to their safety and defense … inasmuch as the right of sequestration, the right of regulating commerce in favor of a friendly and against a rival power, and the right of suspending a commercial intercourse with an inimical nation are voluntarily abandoned.
5. Because the treaty is an infraction of the rights of friendship, gratitude, and alliance which the Republic of France may justly claim from the United States, and deprives the United States of the most powerful means to secure the good will and good offices of other nations—inasmuch as it alters, during a war, the relative situation of the different nations advantageously to Great Britain and prejudicially to the French Republic; inasmuch as it is in manifest collision with several articles of the American treaty with France; and inasmuch as it grants to Great Britain certain high, dangerous, and exclusive privileges.
And your memorialists, having thus upon general ground concisely but explicitly avowed their wishes and opinions, and forbearing a minute specification of the many other objections that occur, conclude with an assurance that, by refusing to ratify the projected treaty, you will, according to their best information and judgment, at once evince an exalted attachment to the principles of the Constitution of the United States and an undiminished zeal to advance the prosperity and happiness of your constituents.
Petition to the General Assembly of the Commonwealth of Virginia 12 October 1795
Widely reprinted after its initial appearance in Richmond and Fredericksburg papers, this petition was drafted by James Madison after Washington had signed the treaty and responded sharply to a critical petition from Boston. Madison assumed at this point that the Senate’s rejection of Article XII of the treaty, if acquiesced in by the British, would require that it be submitted to the Senate again for final approval.
The President of the United States in his letter to the Selectmen of Boston, dated 28th of July, 1795, copies whereof have since been transmitted to similar meetings of the people in other parts of the United States, having, as it is conceived, virtually refused to view the representations of the people as a source of information worthy of his consideration in deliberating upon the propriety of ratifying or rejecting the late treaty between Great Britain and the United States, … and having, by these proceedings, rendered all further representations and applications to him upon the subject absurd and nugatory, … the people should boldly exercise their right of addressing their objections to all other constituted authorities within the United States who possess any agency relative to this highly interesting subject.
Upon this principle, the following Petition to the General Assembly of Virginia, in virtue of their constitutional right of appointing Senators for this state to the Congress of the United States, is submitted to the independent citizens thereof. …
Through these means one more effort may be made by a declaration of the public sentiment to prevent the final ratification and ultimate energy of an instrument which is deemed fatal to the interests, the happiness, and perhaps finally to the liberty and independence of the United States.
12 October 1795
To the General Assembly of the Commonwealth of Virginia.
The Memorial and Petition of the subscribers thereof respectfully showeth, that they have seen and maturely considered the treaty lately negotiated with Great Britain and conditionally ratified by the President of the United States.
That they infer from the nature of the condition annexed to the ratification that the said treaty ought to receive and must again receive the sanction of the constituted authorities before it can be finally binding on the United States. …
That in the present stage of the transaction they deem it their right and their duty to pursue every constitutional and proper mode of urging those objections to the treaty which in their judgment require to be entirely removed before it ought to be finally established.
That under this conviction, they submit the following observations to the consideration of the General Assembly.
I. … The execution of the Treaty of Peace equally by both ought to have been provided for. Yet, whilst the United States are to comply in the most ample manner with the article unfulfilled by them, and to make compensation for whatever losses may have accrued from their delay, Great Britain is released altogether from one of the articles unfulfilled by her and is not obliged to make the smallest compensation for the damages which have accrued from her delay in fulfilling the other. …
II. Without remarking the inexplicit provision for redressing past spoliations and vexations, no sufficient precautions are taken against them in future. On the contrary, by omitting to provide for the respect due to sea letters, passports, and certificates, and for other customary safeguards to neutral vessels, “a general search warrant” (in the strong but just language of our fellow-citizens of Charleston) is granted against the American navigation. Examples of such provisions were to be found in our other treaties, as well as in the treaties of other nations. And it is matter of just surprise that they should have no place in a treaty with Great Britain, whose conduct on the seas so particularly suggested and enforced every guard to our rights that could be reasonably insisted on.
By omitting to provide against the arbitrary seizure and imprisonment of American seamen, that valuable class of citizens remains exposed to all the outrages and our commerce to all the interruptions hitherto experienced from that cause.
By expressly admitting that provisions are to be held contraband in cases other than when bound to an invested place, and impliedly admitting that such cases exist at present, not only a retrospective sanction may be given to proceedings against which an indemnification is claimed, but an apparent license is granted to fresh and more rapacious depredations on our lawful commerce; and facts seem to show that such is to be the fruit of this impolitic concession. It is conceived that the pretext set up by Great Britain of besieging and starving whole nations, and the doctrine grounded thereon of a right to intercept the customary trade of neutral nations, in articles not contraband, ought never to have been admitted into a treaty of the United States—Because 1. It is a general outrage on humanity and an attack on the useful intercourse of nations. 2. It appears that the doctrine was denied by the executive in the discussions with Mr. Hammond, the British minister, and that demands of compensation founded on that denial are now depending. 3. As provisions constitute not less than two-thirds of our exports, and Great Britain is nearly half her time at war, an admission of the doctrine sacrifices in a correspondent degree the intrinsic value of our country. 4. After public denial of the doctrine, to admit it in the midst of the present war by a formal treaty would have but too much of the effect as well as the appearance of voluntarily concurring in the scheme of distressing a nation whose friendly relations to the United States, as well as the struggles for freedom in which it is engaged, give a title to every good office which is permitted by a just regard to our own interest and not strictly forbidden by the duties of neutrality. 5. It is no plea for the measure to hold it up as an alternative to the disgrace of being involuntarily treated in the same manner, without a faculty to redress ourselves. The disgrace of being plundered with impunity against our consent being under no circumstances so great as the disgrace of consenting to be plundered with impunity. By annexing to the implements of war enumerated as contraband the articles of ship timber, tar, or rosin, copper in sheets, sails, hemp and cordage, our neutral rights and national interests are still further narrowed. These articles were excluded from the contraband list by the United States when they were themselves in a state of war. (See ordinance relating to captures in fourth of December, 1781.) Their other treaties expressly declare them not to be contraband.
British Treaties have done the same, nor as is believed, do the treaties of any nation in Europe producing these articles for exportation allow them to be subjects of confiscation. The stipulation was the less to be admitted as the reciprocity assumed by it is a mere cover for the violation of that principle, most of the articles in question being among the exports of the United States, whilst all of them are among the imports of Great Britain.
By expressly stipulating with Great Britain against the freedom of enemy’s property in neutral bottoms, the progress towards a complete and formal establishment of a principle in the law of nations so favorable to the general interest and security of commerce receives all the check the United States could give to it. Reason and experience have long taught the propriety of considering free ships as giving freedom to their cargoes. The several great maritime nations of Europe have not only established, at different times, by their treaties with each other, but on a solemn occasion jointly declared it to be the law of nations, by a specific compact, of which the United States entered their entire approbation (see their act of the 5th of October, 1780). Great Britain alone dissented. But she herself, in a variety of prior treaties and in a treaty with France since, has acceded to the principle. Under these circumstances, the United States, of all nations, ought to be the last to combine in a retrograde effort on this subject, as being more than any other interested in extending and establishing the commercial rights of neutral nations. Their situation particularly fits them to be carriers for the great nations of Europe during their wars; and both their situation and the genius of their government and people promise them a greater share of peace and neutrality than can be expected by any other nation. The relation of the United States by a treaty on this point to the enemies of Great Britain was another reason for avoiding this stipulation. Whilst British goods, in American vessels, are protected against French and Dutch captures, it was enough to leave French and Dutch goods in American vessels to the ordinary course of judicial determination without a voluntary, a positive, and invidious provision for condemning them. It has not been overlooked that a clause in the treaty proposes to renew at some future period the discussion of the principle now settled; but the question is then to be not only in what, but whether in any cases, neutral vessels shall protect enemies’ property; and it is to be discussed at the same time, not whether in any, but in what cases, provisions and other articles not bound to invested places may be treated as contraband. So that when the principle is in favor of the United States, the principle itself is to be the subject of discussion; when the principle is in favor of Great Britain, the application of it only is to be the subject of discussion.
III. Whenever the law of nations has been a topic for consideration, the result of the treaty accommodates Great Britain in relation to one or both of the republics at war with her, as well as in the abandonment of the rights and interests of the United States.
Thus American vessels bound to Great Britain are protected by sea papers against French and Dutch searches; but when bound to France or Holland, are left exposed to British searches without regard to such papers.
American provisions in American vessels bound to the enemies of Great Britain are left by treaty to the seizure and use of Great Britain; but provisions, whether American or not, in American vessels, cannot be touched by the enemies of Great Britain.
British property in American vessels is not subject to French or Dutch confiscation—French or Dutch property in American vessels is subjected to British confiscation. Articles of shipbuilding bound to the enemies of Great Britain for the equipment of vessels of trade only are contraband—bound to Great Britain for the equipment of vessels of war, are not contraband.
American citizens entering as volunteers in the service of France or Holland are punishable; but American volunteers joining the arms of Great Britain against France or Holland are not punishable.
British ships of war and privateers, with their prizes, made on citizens of Holland, may freely enter and depart the ports of the United States; but Dutch ships of war, and privateers with their prizes, made on subjects of Great Britain, are to receive no shelter or refuge in the ports of the United States. This advantage in war is given to Great Britain, not by treaty prior to an existing war, but by a treaty made in the midst of war, and expressly stipulating against a like article of treaty with the other party for equalizing the advantage.
The article prohibiting confiscations and sequestrations is unequal between Great Britain and the United States: American citizens have little if any interest in private or bank stock, or private debts, within Great Britain. So where much would be in the power of the United States and little in the power of Great Britain, the power is interdicted: Where more is in the power of Great Britain than of the United States, the power is unconfined. Another remark is applicable—when the modern usage of nations is in favor of Great Britain, the modern usage is the rule of the treaty; but when the modern usage is in favor of the United States, the modern usage is rejected as a rule for the treaty.
IV. The footing on which the treaty places the subject of commerce is liable to insuperable objections.
1. The nature of our exports and imports, compared with those of other countries and particularly of Great Britain, has been thought by the legislature of the United States to justify certain differences in the tonnage and other duties in favor of American bottoms, and the advantage possessed by Great Britain in her superior capital was thought at the same time to require such countervailing encouragements. Experience has shown the solidity of both these considerations. The American navigation has in a good degree been protected against the advantage on the side of British capital, and has increased in proportion; whilst the nature of our exports, being generally necessaries or raw materials, and our imports, consisting mostly of British manufactures, has restrained the disposition of Great Britain to counteract the protecting duties afforded to our navigation. If the treaty is carried into effect, this protection is relinquished and Congress are prohibited from substituting any other. Then the British capital, having no longer the present inducement to make use of American bottoms, may be expected, in whatever hands operating, to give the preference to British bottoms.
2. The provisions of the treaty which relate to the West-Indies, where the nature of our exports and imports gives a commanding energy to our just pretensions, instead of alleviating the general evil, are a detail of particular humiliations and sacrifices. Nor will a remedy by any means be found in a revision of that part alone in the treaty. On the contrary, if Great Britain should accede to the proposition of the Senate and the treaty be finally established without that part of it, but in all its other parts, she will in that event be able to exclude American bottoms altogether from that channel of intercourse and to regulate the whole trade with the West-Indies in the manner heretofore complained of, whilst the United States will be completely dispossessed of the right and the means of counteracting the monopoly, unless they submit to a universal infraction of their trade, not excepting with nations whose regulations may be reciprocal and satisfactory.
3. The treaty, not content with these injuries to the United States in their commerce with Great Britain, provides in the XV article against the improvement or preservation of their commerce with other nations by any beneficial treaties that may be attainable. The general rule of the United States in their treaties, founded on the example of other nations, has been that where a nation was to have the privileges of the most favored nations, it shall be admitted gratuitously to such privileges only as may be gratuitously granted, but shall pay for privileges not gratuitously granted the compensation paid by others; this prudent and equitable qualification of the footing of the most favored nation was particularly requisite in a treaty with Great Britain, whose commercial system in relation to other countries being matured and settled, is not likely to be varied by grants of new privileges that might result to the United States. It was particularly requisite at the present juncture, also, when an advantageous revision of the treaty with France is said to be favored by that Republic; when a treaty with Spain is actually in negotiation; and when treaties with other nations whose commerce is important to the United States cannot be out of contemplation.
The proposed treaty, nevertheless, puts Great Britain in all respects gratuitously on the footing of the nations most favored, even as to future privileges, for which the most valuable considerations may be given; so that it is not only out of the power of the United States to grant any peculiar privileges to any other nation, as an equivalent for peculiar advantages in commerce or navigation granted to the United States, but every nation desiring to treat on this subject with the United States is reduced to the alternative either of declining the treaty altogether or of including Great Britain gratuitously in all the privileges it purchases for itself. An article of this import is the greatest obstruction next to an absolute prohibition that could have been thrown in the way of other treaties; and that it was insidiously meant by Great Britain to be such is rendered the less doubtful by the kindred features of the treaty.
4. The President and Senate by ratifying this treaty usurp the powers of regulating commerce, of making rules with respect to aliens, of establishing tribunals of justice, and of defining piracy. …
It can be no apology for the commercial disadvantages that better terms could not be obtained. If proper terms could not be obtained at that time, commercial articles which were no wise essentially connected with the objects of the embassy ought to have waited for a more favorable season. Nor is a better apology to be drawn from our other treaties. These not only avoid many of the sacrifices in the new treaty; but the chief of them were the guarantees or the auxiliaries of our independence; and in that view, would have been an equivalent for greater commercial concessions than were insisted on.
V. A treaty thus unequal in its conditions, thus derogating from our national rights, thus insidious in some of its objects, and thus alarming in its operation to the dearest interest of the United States in their commerce and navigation, is, in its present form, unworthy the voluntary acceptance of an independent people, and is happily not dictated to them by the circumstances in which a kind providence has placed them. A treaty thus incompatible with our Constitution, thus unequal in its conditions, thus derogating from our national rights, thus insidious in some of its objects, and thus alarming in all its operation, is not only unworthy of the voluntary acceptance of an independent and happy people, but is an abject sacrifice which ought to have been rejected with disdain in the most humiliating and adverse circumstances. It is sincerely believed that such a treaty would not have been listened to at any former period, even when Great Britain was most powerful, at her ease, and the United States most feeble, without the respectability they now enjoy. To pretend that however objectionable the instrument may be, it ought to be considered as the only escape from a hostile resentment of Great Britain, which would evidently be as impolitic as it would be unjust on her part, is an artifice too contemptible to answer its purpose. … To do justice to all nations, to obtain it from them by every peaceable effort, in preference to war; and to confide in this policy for avoiding that extremity or for meeting it with firmness under the blessing of Heaven, when it may be forced upon us, is the only course of which the United States can never have reason to repent.
The petitioners, relying on the wisdom and patriotism of the General Assembly, pray that the objections to the treaty comprised in these observations may be taken into their serious consideration; and that such measures towards a remedy may be pursued as may be judged most conformable to the nature of the case and most consistent with constitutional principles.
alexander hamilton The “Camillus” Essays 22 July 1795–9 January 1796
During the fall of 1795 and into the winter, public opinion began to shift quite markedly behind the treaty. Not least among the reasons was the appearance of capable defenses of its terms by “Curtius” (Noah Webster) and others. Incomparably the best of these defenses were the thirty-eight essays of “Camillus,” which were published originally in two New York newspapers, the Argus and the Herald, and reprinted widely around the country before appearing also as a pamphlet. Hamilton wrote twenty-eight of these essays, Rufus King the rest.
“The Defence, No. 1” 22 July 1795
It was to have been foreseen that the treaty which Mr. Jay was charged to negotiate with Great Britain, whenever it should appear, would have to contend with many perverse dispositions and some honest prejudices. That there was no measure in which the government could engage so little likely to be viewed according to its intrinsic merits—so very likely to encounter misconception, jealousy, and unreasonable dislike. For this many reasons may be assigned. …
It was known, that the resentment produced by our revolution war with Great Britain had never been entirely extinguished, and that recent injuries had rekindled the flame with additional violence. It was a natural consequence of this that many should be disinclined to any amicable arrangement with Great Britain and that many others should be prepared to acquiesce only in a treaty which should present advantages of so striking and preponderant a kind as it was not reasonable to expect could be obtained, unless the United States were in a condition to give the law to Great Britain. …
It was not to be mistaken that an enthusiasm for France and her revolution throughout all its wonderful vicissitudes has continued to possess the minds of the great body of the people of this country, and it was to be inferred that this sentiment would predispose to a jealousy of any agreement or treaty with her most persevering competitor—a jealousy so excessive as would give the fullest hope to insidious arts to perplex and mislead the public opinion. It was well understood that a numerous party among us, though disavowing the design, because the avowal would defeat it, have been steadily endeavoring to make the United States a party in the present European war, by advocating all those measures which would widen the breach between us and Great Britain and by resisting all those which could tend to close it; and it was morally certain that this party would eagerly improve every circumstance which could serve to render the treaty odious and to frustrate it, as the most effectual road to their favorite goal.
It was also known beforehand that personal and party rivalships of the most active kind would assail whatever treaty might be made, to disgrace, if possible, its organ.
There are three persons prominent in the public eye as the successor of the actual President of the United States in the event of his retreat from the station: Mr. Adams, Mr. Jay, Mr. Jefferson.
No one has forgotten the systematic pains which have been taken to impair the well earned popularity of the first gentleman. Mr. Jay too has been repeatedly the object of attacks with the same view. His friends as well as his enemies anticipated that he could make no treaty which would not furnish weapons against him—and it were to have been ignorant of the indefatigable malice of his adversaries to have doubted that they would be seized with eagerness and wielded with dexterity. …
From the combined operation of these different causes, it would have been a vain expectation that the treaty would be generally contemplated with candor and moderation, or that reason would regulate the first impressions concerning it. It was certain, on the contrary, that however unexceptionable its true character might be, it would have to fight its way through a mass of unreasonable opposition; and that time, examination and reflection would be requisite to fix the public opinion on a true basis. It was certain that it would become the instrument of a systematic effort against the national government and its administration: a decided engine of party to advance its own views at the hazard of the public peace and prosperity. …
At Boston it was published one day, and the next a town meeting was convened to condemn it, without ever being read; without any serious discussion, sentence was pronounced against it. …
The intelligence of this event had no sooner reached New York than the leaders of the clubs were seen haranguing in every corner of the city to stir up our citizens into an imitation of the example of the meeting at Boston. An invitation to meet at the City Hall quickly followed, not to consider or discuss the merits of the treaty, but to unite with the meeting at Boston to address the president against its ratification. …
In vain did a respectable meeting of the merchants endeavor, by their advice, to moderate the violence of these views and to promote a spirit favorable to a fair discussion of the treaty; in vain did a respectable body of citizens of every description attend for that purpose. The leaders of the clubs resisted all discussion, and their followers, by their clamors and vociferations, rendered it impracticable, notwithstanding the wish of a manifest majority of the citizens convened upon the occasion. …
It cannot be doubted that the real motive to the opposition was the fear of a discussion; the desire of excluding light; the adherence to a plan of surprise and deception. Nor need we desire any fuller proof of that spirit of party, which has stimulated the opposition to the treaty than is to be found in the circumstances of that opposition.
To every man who is not an enemy to the national government, who is not a prejudiced partisan, who is capable of comprehending the argument and passionate enough to attend to it with impartiality, I flatter myself I shall be able to demonstrate satisfactorily in the course of some succeeding papers—
1. That the treaty adjusts in a reasonable manner the points in controversy between the United States and Great Britain, as well those depending on the inexecution of the treaty of peace as those growing out of the present European war.
2. That it makes no improper concessions to Great Britain, no sacrifices on the part of the United States.
3. That it secures to the United States equivalents for what they grant.
4. That it lays upon them no restrictions which are incompatible with their honor or their interest.
5. That in the articles which respect war, it conforms to the laws of nations.
6. That it violates no treaty with, nor duty toward, any foreign power.
7. That compared with our other commercial treaties, it is upon the whole entitled to a preference.
8. That it contains concessions of advantages by Great Britain to the United States which no other nation has obtained from the same power.
9. That it gives to her no superiority of advantages over other nations with whom we have treaties.
10. That interests of primary importance to our general welfare are promoted by it.
11. That the too probable result of a refusal to ratify is war, or what would be still worse, a disgraceful passiveness under violations of our rights, unredressed and unadjusted; and consequently, that it is the true interest of the United States that the treaty should go into effect. …
“The Defence, No. 2” 25 July 1795
… All must remember the very critical posture of this country at the time that mission was resolved upon. A recent violation of our rights too flagrant and too injurious to be submitted to had filled every American breast with indignation and every prudent man with alarm and disquietude. A few hoped, and the great body of the community feared, that war was inevitable.
In this crisis two sets of opinions prevailed; one looked to measures which were to have a compulsory effect upon Great Britain—the sequestration of British debts and the cutting off of intercourse wholly or partially between the two countries—the other to vigorous preparation for war and one more effort of negotiation by a solemn mission to avert it.
That the latter was the best opinion no truly sensible man can doubt, and it may be boldly affirmed that the event has entirely justified it.
If measures of coercion and reprisal had taken place, war in all human probability would have followed.
National pride is generally a very intractable thing. In the councils of no country does it act with greater force than in those of Great Britain. Whatever it might have been in her power to yield to negotiation, she could have yielded nothing to compulsion, without self-degradation and without the sacrifice of that political consequence which, at all times very important to a nation, was peculiarly so to her at the juncture in question. It must be remembered too that from the relations in which the two countries have stood to each other it must have cost more to the pride of Great Britain to have received the law from us than from any other power.
When one nation has cause of complaint against another, the course marked out by practice, the opinion of writers, and the principles of humanity, the object being to avoid war, is to precede reprisals of any kind by a demand of reparation. To begin with reprisals is to meet on the ground of war and puts the other party in a condition not to be able to recede without humiliation.
Had this course been pursued by us it would not only have rendered war morally certain, but it would have united the British nation in the vigorous support of their government in the prosecution of that war, while on our parts we should have been quickly distracted and divided. The calamities of war would have brought the most ardent to their senses and placed them among the first in reproaching the government with precipitation, rashness, and folly; for not having taken every chance by pacific means to avoid so great an evil. …
Few nations can have stronger inducements than the U States to cultivate peace. Their infant state in general—their want of a marine in particular to protect their commerce—would render war in an extreme degree a calamity. It would not only arrest our present rapid progress to strength and prosperity, but would probably throw us back into a state of debility and impoverishment from which it would require years to emerge. Our trade, navigation, and mercantile capital would be essentially destroyed. Spain being an associate with Great Britain, a general Indian war would probably have desolated the whole extent of our frontier. Our exports obstructed, agriculture would have seriously languished. All other branches of industry must have proportionally suffered. Our public debt, instead of a gradual diminution, must have sustained a great augmentation and drawn with it a large increase of taxes and burdens on this people.
But this perhaps was not the worst to be apprehended. It was to be feared that the war would be conducted in a spirit which would render it more than ordinarily calamitous. There are too many proofs that a considerable party among us is deeply infected with those horrid principles of Jacobinism which, proceeding from one excess to another, have made France a theater of blood and which notwithstanding the most vigorous efforts of the national representation to suppress it keeps the destinies of France to this moment suspended by a thread. It was too probable that the direction of the war if commenced would have fallen into the hands of men of this description. The consequences of this even in imagination are such as to make any virtuous man shudder.
It was therefore in a peculiar manner the duty of the Government to take all possible chances for avoiding war. The plan adopted was the only one which could claim this advantage. …
It cannot escape an attentive observer that the language which in the first instance condemned the mission of an envoy extraordinary to Great Britain, and which now condemns the treaty negotiated by him, seems to consider the U States as among the first rate powers of the world in point of strength and resource and proposes to them a conduct predicated upon that condition.
To underrate our just importance would be a degrading error. To overrate it may lead to dangerous mistakes.
A very powerful state may frequently hazard a high and haughty tone with good policy, but a weak state can scarcely ever do it without imprudence. The last is yet our character, though we are the embryo of a great empire. It is therefore better suited to our situation to measure each step with the utmost caution; to hazard as little as possible; in the cases in which we are injured to blend moderation with firmness; and to brandish the weapons of hostility only when it is apparent that the use of them is unavoidable.
It is not to be inferred from this that we are to crouch to any power on earth or tamely to suffer our rights to be violated. A nation which is capable of this meanness will quickly have no rights to protect, no honor to defend.
But the true inference is that we ought not lightly to seek or provoke a resort to arms; that in the differences between us and other nations we ought carefully to avoid measures which tend to widen the breach; and that we should scrupulously abstain from whatever may be construed into reprisals ’till after the fruitless employment of all amicable means has reduced it to a certainty that there is no alternative and ought then only to endanger the necessity of that resort.
If we can avoid war for ten or twelve years more, we shall then have acquired a maturity which will make it no more than a common calamity and will authorize us on our national discussions to take a higher and more imposing tone.
This is a consideration of the greatest weight to determine us to exert all our prudence and address to keep out of war as long as it shall be possible to defer to a state of manhood a struggle to which infancy is ill-adapted. This is the most effectual way to disappoint the enemies of our welfare; to pursue a contrary conduct may be to play into their hands and to gratify their wishes. If there be a foreign power which sees with envy or ill will our growing prosperity, that power must discern that our infancy is the time for clipping our wings. We ought to be wise enough to see that this is not the time for trying our strength.
Should we be able to escape the storm which at this juncture agitates Europe, our disputes with Great Britain terminated, we may hope to postpone war to a distant period. This at least will greatly diminish the chances of it. For then there will remain only one power with whom we have any embarrassing discussion. I allude to Spain and the question of the Mississippi; and there is reason to hope that this question by the natural progress of things and perseverance in an amicable course will finally be arranged to our satisfaction without the necessity of the dernier resort.
The allusion to this case suggests one or two important reflections. How unwise was it to invite or facilitate a quarrel with Great Britain at a moment when she and Spain were engaged in a common cause, both of them having besides controverted points with the U States! How wise will it be to adjust our differences with the most formidable of those two powers and to have only to contest with one of them.
This policy is so obvious that it requires an extraordinary degree of infatuation not to be sensible of it, and not to view with favor any measure which tends to so impor-tant a result.
This cursory review of the motives which may be supposed to have governed our public councils in the mission to Great Britain serves not only to vindicate the measures then pursued but to warn us against a prejudiced judgment of the result which may in the end defeat the salutary purposes of those measures.
I proceed to observe summarily that the objects of the mission, contrary to what has been asserted, have been substantially obtained. What were these? They were principally—
I. to adjust the matters of controversy concerning the inexecution of the Treaty of Peace and especially to obtain restitution of our Western posts.
II. to obtain reparation for the captives and spoliations of our property in the course of the existing war.
Both these objects have been provided for, and it will be shown when we come to comment upon the articles which make the provision in each case, that it is a reasonable one, as good a one as ought to have been expected—as good a one as there is any prospect of obtaining hereafter: one which it is consistent with our honor to accept and which our interest bids us to close with.
The provisions with regard to commerce were incidental and auxiliary—some provisions on this subject were of importance to fix for a time the basis on which the commerce of the two countries was to be carried on, that the merchants of each might know what they had to depend upon—that sources of collision on this head might be temporarily stilled if not permanently extinguished—that an essay might be made of some plan conciliating as far as possible the opinions and prejudices of both parties—and laying perhaps the foundation of further and more extensive arrangements. Without something of this kind, there would be constant danger of the tranquillity of the two countries being disturbed by commercial conflicts. …
“The Defence, No. 18” 6 October 1795
It is provided by the tenth article of the treaty that “Neither Debts due from individuals of the one Nation to Individuals of the other, nor shares nor monies, which they may have in the public funds, or in the public or private banks, shall ever in any event of war or national differences be sequestered or confiscated, it being unjust and impolitic that debts and engagements contracted and made by individuals having confidence in each other and in their respective Governments should ever be destroyed or impaired by national authority on account of National Differences and Discontents.”
The virulence with which this article has been attacked cannot fail to excite very painful sensations in every mind duly impressed with the sanctity of public faith and with the importance of national credit and character, at the same time that it furnishes the most cogent reasons to desire that the preservation of peace may obviate the pretext and the temptation to sully the honor and wound the interests of the country by a measure which the truly enlightened of every nation would condemn.
I acknowledge without reserve that in proportion to the vehemence of the opposition against this part of the treaty is the satisfaction I derive from its existence; as an obstacle the more to the perpetration of a thing which in my opinion, besides deeply injuring our real and permanent interest, would cover us with ignominy. No powers of language at my command can express the abhorrence I feel at the idea of violating the property of individuals which in an authorized intercourse in time of peace has been confided to the faith of our government and laws on account of controversies between nation and nation. In my view every moral and every political sentiment unite to consign it to execration.
Neither will I dissemble that the dread of the effects of the spirit which patronizes that idea has ever been with me one of the most persuasive arguments for a pacific policy on the part of the U States. Serious as the evil of war has appeared at the present stage of our affairs the manner in which it was to be apprehended it might be carried on was still more formidable than the thing itself. It was to be feared that in the fermentation of certain wild opinions, those wise, just, and temperate maxims which will forever constitute the true security and felicity of a state would be overruled and that a war upon credit, eventually upon property and upon the general principles of public order, might aggravate and embitter the ordinary calamities of foreign war. The confiscation of debts due to the enemy might have been the first step of this destructive process. From one violation of justice to another the passage is easy. Invasions of right still more fatal to credit might have followed, and this by extinguishing the resources which that could have afforded might have paved the way to more comprehensive and more enormous depredations for a substitute. Terrible examples were before us, and there were too many not sufficiently remote from a disposition to admire and imitate them. …
Even in a revolutionary war, a war of liberty against usurpation, our national councils were never provoked or tempted to depart so widely from the path of rectitude by every man who, though careful not to exaggerate for rash and extravagant projects, can nevertheless fairly estimate the real resources of the country for meeting dangers which prudence cannot avert.
Such a man will never endure the base doctrine that our security is to depend on the tricks of a swindler. He will look for it in the courage and constancy of a free, brave, and virtuous people—in the riches of a fertile soil—an extended and progressive industry—in the wisdom and energy of a well constituted and well administered government—in the resources of a solid, if well supported, national credit—in the armies which if requisite could be raised—in the means of maritime annoyance which if necessary we could organize and with which we could inflict deep wounds on the commerce of a hostile nation. He will indulge an animating consciousness that while our situation is not such as to justify our courting imprudent enterprises, neither is it such as to oblige us in any event to stoop to dishonorable means of security or to substitute a crooked and piratical policy for the manly energies of fair and open war. …
“The Defence, No. 37” 6 January 1796
It shall now be shown, that the objections to the treaty founded on its pretended interference with the powers of Congress tend to render the power of making treaties in a very great degree if not altogether nominal. This will be best seen by an enumeration of the cases of pretended interference.
I. The power of Congress to lay taxes is said to be impaired by those stipulations which prevent the laying of duties on particular articles, which also prevent the laying of higher or other duties on British commodities than on the commodities of other countries, and which restrict the power of increasing the difference of duties on British tonnage and on goods imported in British bottoms.
II. The power of Congress to regulate trade is said to be impaired by the same restrictions respecting duties, inasmuch as they are intended and operate as regulations of trade, by the stipulations against prohibitions in certain cases, and in general by all the rights, privileges, immunities, and restrictions in trade which are contained in the treaty, all which are so many regulations of commerce, which are said to encroach upon the legislative authority. …
The absurdity of the alleged interferences will fully appear by showing how they would operate upon the several kinds of treaties usual among nations. These may be classed under three principal heads: 1. Treaties of Commerce 2. Treaties of Alliance 3. Treaties of Peace.
Treaties of commerce are of course excluded, for every treaty of commerce is a system of rules devised to regulate and govern the trade between contracting nations, invading directly the exclusive power of regulating trade which is attributed to Congress.
Treaties of alliance whether defensive or offensive are equally excluded, and this on two grounds— 1. because it is their immediate object to define a case or cases in which one nation shall take part with another in war, contrary, in the sense of the objection, to that clause of the Constitution which gives to Congress the power of declaring war, and, 2. because the succors stipulated, in whatever form they may be, must involve an expenditure of money—not to say that it is common to stipulate succors in money either in the first instance or by way of alternative. …
Treaties of peace are also excluded or at the least are so narrowed as to be in the greatest number of cases impracticable. The most common conditions of these treaties are restitutions or cessions of territory on one side or on the other, frequently, on both sides, regulations of boundary, restitutions and confirmations of property—pecuniary indemnifications for injuries or expenses. It will probably not be easy to find a precedent of a treaty of peace which does not contain one or more of these provisions as the basis of the cessation of hostilities, and they are all of them naturally to be looked for in an agreement which is to put an end to the state of war between conflicting nations. Yet they are all precluded by the objections which have been enumerated. …
It follows that if the objections which are taken to the treaty on the point of constitutionality are valid, the President with the advice and consent of the Senate can make neither a treaty of commerce nor alliance and, rarely if at all, a treaty of peace. It is probable that on a minute analysis there is scarcely any species of treaty which would not clash in some particular with the principle of those objections; and thus, as was before observed, the power to make treaties granted in such comprehensive and indefinite terms and guarded with so much precaution would become essentially nugatory.
This is so obviously against the principles of sound construction, it at the same time exposes the government to so much impotence in one great branch of political power, in opposition to a main intent of the Constitution, and it tends so directly to frustrate one principal object of the institution of a general government—the convenient management of our external concerns—that it cannot but be rejected by every discerning man who will examine and pronounce with sincerity.
It is against the principles of sound construction, because these teach us that every instrument is so to be interpreted that all the parts may if possible consist with each other and have effect. But the construction which is combated would cause the legislative power to destroy the power of making treaties. Moreover, if the power of the executive department be inadequate to the making of the several kinds of treaties which have been mentioned, there is then no power in the government to make them; for there is not a syllable in the Constitution which authorizes either the legislative or judiciary department to make a treaty with a foreign nation. And our Constitution would then exhibit the ridiculous spectacle of a government without a power to make treaties with foreign nations: a result as inadmissible as it is absurd, since in fact our Constitution grants the power of making treaties in the most explicit and ample terms to the President with the advice and consent of the Senate. …
“The Defence, No. 38” 9 January 1796
The manner in which the power of treaty as it exists in the Constitution was understood by the Convention in framing it and by the people in adopting it is the point next to be considered.
As to the sense of the Convention, the secrecy with which their deliberations were conducted does not permit any formal proof of the opinions and views which prevailed in digesting the power of treaty. But from the best opportunity of knowing the fact, I aver that it was understood by all to be the intent of the provision to give to that power the most ample latitude to render it competent to all the stipulations which the exigencies of national affairs might require—competent to the making of treaties of alliance, treaties of commerce, treaties of peace and every other species of convention usual among nations and competent in the course of its exercise to control and bind the legislative power of Congress. And it was emphatically for this reason that it was so carefully guarded, the cooperation of two thirds of the Senate with the President being required to make a treaty. I appeal for this with confidence to every member of the Convention—particularly to those in the two houses of Congress. Two of these are in the House of Representatives, Mr. Madison and Mr. Baldwin. It is expected by the adversaries of the treaty that these gentlemen will in their places obstruct its execution. However this may be, I feel a confidence that neither of them will deny the assertion I have made. To suppose them capable of such a denial were to suppose them utterly regardless of truth. …
As to the sense of the community in the adoption of the Constitution, this can only be ascertained from two sources, the writings for and against the Constitution and the debates in the several state conventions.
I possess not at this moment materials for an investigation which would enable me to present the evidence they afford. But I refer to them, with confidence, for proof of the fact that the organization of the power of treaty in the Constitution was attacked and defended with an admission on both sides of its being of the character which I have assigned to it. Its great extent and importance—its effect to control by its stipulations the legislative authority were mutually taken for granted—and, upon this basis, it was insisted by way of objection that there were not adequate guards for the safe exercise of so vast a power, that there ought to have been reservations of certain rights, a better disposition of the power to impeach, and a participation, general or special, of the House of Representatives. The reply to these objections, acknowledging the delicacy and magnitude of the power, was directed to show that its organization was a proper one and that it was sufficiently guarded. …
House Debates on Implementing Jay’s Treaty 1796
On 2 March 1796, with the Republicans in Congress determined to deny the appropriations necessary to carry the treaty into effect, Edward Livingston of New York moved to ask the president to deliver the instructions, correspondence, and other documents related to the treaty. The long debate occasioned by Federalist complaints that the House had no discretionary power over whether a treaty would go into effect was one of the most important constitutional arguments of the decade, climaxed by Washington’s refusal of the House request.
Mr. Smith (of South Carolina) said that he had listened attentively to the reasons advanced in favor of this resolution and that he had heard nothing to convince him of its propriety. The President and Senate have, by the Constitution, the power of making treaties, and the House have no agency in them, except to make laws necessary to carry them into operation; he considered the House as bound, in common with their fellow-citizens, to do everything in their power to carry them into full execution. He recognized but one exception to this rule, and that was when the instrument was clearly unconstitutional. …
They have no right to investigate the merits of the Treaty; it is the law of the land, and they are bound to carry it into effect unless they intended to resist the constituted authorities. …
He was surprised that gentlemen who displayed such zeal for the Constitution should support a proposition, the tendency of which went indirectly to break down the constitutional limits between the executive and legislative departments. The Constitution had assigned to the executive the business of negotiation with foreign powers; this House can claim no right by the Constitution to interfere in such negotiations; every movement of the kind must be considered as an attempt to usurp powers not delegated, and will be resisted by the executive; for a concession would be a surrender of the powers specially delegated to him and a violation of his trust. …
Mr. Gallatin would state his opinion that the House had a right to ask for the papers proposed to be called for, because their cooperation and sanction was necessary to carry the treaty into full effect, to render it a binding instrument, and to make it, properly speaking, a law of the land; because they had a full discretion either to give or to refuse that cooperation; because they must be guided, in the exercise of that discretion, by the merits and expediency of the treaty itself, and therefore had a right to ask for every information which could assist them in deciding that question. …
A treaty is unconstitutional if it provides for doing such things, the doing of which is forbidden by the Constitution; but if a treaty embraces objects within the sphere of the general powers delegated to the federal government, but which have been exclusively and specially granted to a particular branch of government, say to the legislative department, such a treaty, though not unconstitutional, does not become the law of the land until it has obtained the sanction of that branch. In this case, and to this end, the legislature have a right to demand the documents relative to the negotiation of the treaty, because that treaty operates on objects specially delegated to the legislature. He turned to the Constitution. It says that the President shall have the power to make treaties, by and with the advice and consent of two-thirds of the Senate. It does not say what treaties. If the clause be taken by itself, then it grants an authority altogether undefined. But the gentlemen quote another clause of the Constitution, where it is said that the Constitution and the laws made in pursuance thereof, and all treaties, are the supreme law of the land; and thence, they insist that treaties made by the President and Senate are the supreme law of the land, and that the power of making treaties is undefined and unlimited. He proceeded to controvert this opinion, and contended that it was limited by other parts of the Constitution.
That general power of making treaties, undefined as it is by the clause which grants it, may either be expressly limited by some other positive clauses of the Constitution, or it may be checked by some powers vested in other branches of the government, which, although not diminishing, may control the treaty-making power. Mr. G. was of opinion that both positions would be supported by the Constitution; that the specific legislative powers delegated to Congress were limitations of the undefined power of making treaties vested in the President and Senate, and that the general power of granting money, also vested in Congress, would at all events be used, if necessary, as a check upon, and as controlling the exercise of, the powers claimed by the President and Senate. …
To what, he asked, would a contrary doctrine lead? If the power of making treaties is to reside in the President and Senate unlimitedly: in other words, if, in the exercise of this power, the President and Senate are to be restrained by no other branch of the government, the President and Senate may absorb all legislative power—the executive has, then, nothing to do but to substitute a foreign nation for the House of Representatives, and they may legislate to any extent. If the treaty-making power is unlimited and undefined, it may extend to every object of legislation. Under it money may be borrowed, as well as commerce regulated; and why not money appropriated? For, arguing as the gentlemen do, they might say the Constitution says that no money shall be drawn from the Treasury but in consequence of appropriations made by law. But treaties, whatever provision they may contain, are law; appropriations, therefore, may be made by treaties.
To the construction he had given to this part of the Constitution, no such formidable objections could be raised. He did not claim for the House a power of making treaties, but a check upon the treaty-making power—a mere negative power; whilst those who are in favor of a different construction advocate a positive and unlimited power.
Since this is the striking difference between the doctrine held by the friends and by the opposers of the present motion, why, added Mr. G., with some warmth, are the first endeavored to be stigmatized as rebellious, disorganizers, as traitors against the Constitution? Do they claim a dangerous active power? No, they only claim the right of checking the exercise of a general power when clashing with the special powers expressly vested in Congress by the Constitution.
He should not say that the treaty is unconstitutional, but he would say that it was not the supreme law of the land until it received the sanction of the legislature. He turned to the Constitution. That instrument declares that the Constitution, and laws made in pursuance thereof, and treaties made under the authority of the United States, shall be the supreme law of the land. The words are, “under the authority of the United States,” not signed and ratified by the President: so that a treaty clashing in any of its provisions with the express powers of Congress, until it has so far obtained the sanction of Congress, is not a treaty made under the authority of the United States. …
But if, as it was said, the powers specifically delegated to the House are not to operate as a limitation of the general powers granted to the President and Senate; if these powers are contended to be as unlimited as they are undefined, then the necessity of a check must strike as doubly necessary. The power of granting money should be exercised as a check on the treaty-making power. The more limited the treaty-making power is contended to be, the more dangerous it is, and the more should the House consider the power of originating grants of money exclusively vested in them as a precious deposit.
He maintained, that the treaty with Great Britain, or any other in similar circumstances, was not, until the necessary appropriations were made, and until the existing laws that stood in its way were repealed, and the requisite laws enacted, the supreme law of the land. Existing laws declare that goods shall not be imported by land into the United States, except in certain districts; the third article of the treaty allows a general importation; the laws declare that foreign vessels trading with us shall pay an additional ten per cent upon the duties paid by our own vessels, the same article again interferes here; in other particulars, also, but these are sufficient to illustrate. Now, if the doctrine of gentlemen be sanctioned, and the House have no discretion left to use on the treaty, but are bound thereby, specific and explicit clauses in the Constitution notwithstanding, the power of granting money becomes nugatory, and a treaty, made by the Executive, may repeal a law. If a treaty can repeal a law, then the act of the President and Senate can repeal the act of the three branches; and although all legislative powers be vested in Congress by the Constitution, yet Congress are controlled by two of its branches; those clauses of the Constitution vesting the legislative powers in Congress are annihilated, and the President and Senate, by substituting a foreign nation for the House of Representatives, assume, in fact, an unlimited legislative power; since, under color of making treaties, they may repeal laws and may enact laws.
If this doctrine is sanctioned; if it is allowed that treaties may regulate appropriations and repeal existing laws, and the House, by rejecting the present resolution, declare that they give up all control, all right to the exercise of discretion, it is tantamount to saying that they abandon their share in legislation, and that they consent the whole power should be concentered in the other branches. He did not believe such a doctrine could be countenanced by the House. If gentlemen should insist upon maintaining this doctrine, should deny the free agency of the House and their right to judge of the expediency of carrying the treaty into effect, the friends to the independence of the House will be driven to the necessity to reject the treaty, whether good or bad, to assert the contested right. If the gentlemen abandoned this ground, then the policy of the measure could be weighed on fair ground and the treaty carried into effect, if reconcilable to the interests of the United States. …
Mr. Madison said that the direct proposition before the House had been so absorbed by the incidental question which had grown out of it, concerning the constitutional authority of Congress in the case of treaties, that he should confine his present observations to the latter.
On some points there could be no difference of opinion; and there need not, consequently, be any discussion. All are agreed that the sovereignty resides in the people; that the Constitution, as the expression of their will, is the guide and the rule to the government; that the distribution of powers made by the Constitution ought to be sacredly observed by the respective departments; that the House of Representatives ought to be equally careful to avoid encroachments on the authority given to other departments and to guard their own authority against encroachments from the other departments: These principles are as evident as they are vital and essential to our political system.
The true question, therefore, before the Committee, was not whether the will of the people expressed in the Constitution was to be obeyed; but how that will was to be understood; in what manner it had actually divided the powers delegated to the government; and what construction would best reconcile the several parts of the instrument with each other and be most consistent with its general spirit and object.
On comparing the several passages in the Constitution which had been already cited to the Committee, it appeared that if taken literally and without limit, they must necessarily clash with each other. Certain powers to regulate commerce, to declare war, to raise armies, to borrow money, etc., etc., are first specifically vested in Congress. The power of making treaties, which may relate to the same subjects, is afterwards vested in the President and two thirds of the Senate. And it is declared in another place that the Constitution and the laws of the U. States made in pursuance thereof, and treaties made or to be made under the authority of the U. States shall be the supreme law of the land: and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.
The term supreme, as applied to treaties, evidently meant a supremacy over the state constitutions and laws, and not over the Constitution and laws of the U. States. And it was observable that the judicial authority and the existing laws alone of the states fell within the supremacy expressly enjoined. The injunction was not extended to the legislative authority of the states or to laws requisite to be passed by the states for giving effect to treaties; and it might be a problem worthy of the consideration, though not needing the decision of the Committee, in what manner the requisite provisions were to be obtained from the states.
It was to be regretted, he observed, that on a question of such magnitude as the present there should be any apparent inconsistency or inexplicitness in the Constitution that could leave room for different constructions. As the case however had happened, all that could be done was to examine the different constructions with accuracy and fairness, according to the rules established therefor, and to adhere to that which should be found most rational, consistent, and satisfactory. …
It was an important, and appeared to him to be a decisive, view of the subject that, if the treaty-power alone could perform any one act for which the authority of Congress is required by the Constitution, it may perform every act for which the authority of that part of the government is required. Congress have power to regulate trade, to declare war, to raise armies, to levy, borrow, and appropriate money, etc. If by treaty, therefore, as paramount to the legislative power, the President and Senate can regulate trade; they can also declare war; they can raise armies to carry on war; and they can procure money to support armies. These powers, however different in their nature or importance, are on the same footing in the Constitution and must share the same fate. …
The Constitution of the U. States is a Constitution of limitations and checks. The powers given up by the people for the purposes of government had been divided into two great classes. One of these formed the state governments, and the other the federal government. The powers of the government had been further divided into three great departments; and the legislative department again subdivided into two independent branches. Around each of these portions of power were seen, also, exceptions and qualifications, as additional guards against the abuses to which power is liable. With a view to this policy of the Constitution, it could not be unreasonable, if the clauses under discussion were thought doubtful, to lean towards a construction that would limit and control the treaty-making power, rather than towards one that would make it omnipotent.
He came next to the … construction which left with the President and Senate the power of making treaties, but required at the same time the legislative sanction and cooperation in those cases where the Constitution had given express and specific powers to the legislature. It was to be presumed that in all such cases, the legislature would exercise its authority with discretion, allowing due weight to the reasons which led to the treaty and to the circumstance of the existence of the treaty. Still, however, this House in its legislative capacity, must exercise its reason; it must deliberate; for deliberation is implied in legislation. If it must carry all treaties into effect, it would no longer exercise a legislative power: it would be the mere instrument of the will of another department and would have no will of its own. Where the Constitution contains a specific and peremptory injunction on Congress to do a particular act, Congress must of course do the act, because the Constitution, which is paramount over all the departments, has expressly taken away the legislative discretion of Congress. The case is essentially different where the act of one department of government interferes with a power expressly vested in another and nowhere expressly taken away. Here the latter power must be exercised according to its nature; and if it be a legislative power, it must be exercised with that deliberation and discretion which is essential to the nature of legislative power.
It was said yesterday that a treaty was paramount to all other acts of government, because all power resided in the people, and the President and Senate, in making a treaty, being the constitutional organs of the people for that purpose, a treaty when made was the act of the people. The argument was as strong the other way. Congress are as much the organs of the people, in making laws, as the President and Senate can be in making treaties; and laws, when made, are as much the acts of the people as any acts whatever can be. …
No construction, he said, might be perfectly free from difficulties. That which he had espoused was subject to the least; as it gave signification to every part of the Constitution, was most consistent with its general spirit, and was most likely in practice to promote the great object of it, the public good. The construction which made the treaty power in a manner omnipotent he thought utterly inadmissible in a Constitution marked throughout with limitations and checks. …
Mr. Sedgwick said that he considered it in principle, and in its consequences, as the most important question which had ever been debated in this House. It was no less than whether this House should, by construction and implication, extend its controlling influence to subjects which were expressly, and he thought exclusively, delegated by the people to another department of the government. We had heretofore been warned emphatically against seizing on power by construction and implication. He had known no instance in which the caution that warning enforced deserved more attention than on the present occasion. …
He, in his conscience, believed that if the Constitution could operate the benefits its original institution intended—that if the government should be rendered adequate to the protection of liberty and the security of the people, it must be by keeping the several departments distinct and within their prescribed limits. Hence, that man would give as good evidence of Republicanism, of virtue, of sincere love of country, who should defend the executive in the exercise of his constitutional rights as the man who should contend for any other department of government. If either should usurp the appropriate powers of another, anarchy, confusion, or despotism, must ensue: the functions of the usurping power would not be legitimate, but their exercise despotism. If the power of controlling treaties was not in the House, the same spirit which might usurp it might also declare the existence of the House perpetual and fill the vacancies as they should occur. The merits of the present question, it seemed to be agreed, depended on this right; it was of infinite importance, therefore, to decide it justly. …
It was not now to be inquired whether the power of treating was wisely deposited, although he was inclined to believe it could not be entrusted to safer hands. It was sufficient that those who had the right, the citizens of America, had declared their will, which we were bound to respect, because we had sworn to support it, and because we were their deputies. …
Gentlemen had spoken of the subject as if the members of this House were the only representatives of the people, as their only protectors against the usurpations and oppressions of the other departments of the government. Who then, he asked, were the Senators? Were they unfeeling tyrants, whose interests were separated from and opposed to those of the people? No. Did they possess hereditary powers and honors? No. Who, as contemplated by the Constitution, were they? The most enlightened and the most virtuous of our citizens. What was the source from whence they derived their elevation? From the confidence of the people and the free choice of their electors. Who were those electors? Not an ignorant herd, who could be cajoled, flattered, and deceived—not even the body of enlightened American citizens; but their legislators, men to whom the real characters of the candidates would be known. They did not possess their seats in consequence of influence obtained by cajoling and deceit, practiced in obscure corners, where the means of detection were difficult if not impracticable; but they were selected from the most conspicuous theaters, where their characters could be viewed under every aspect and by those most capable of distinguishing the true from the false. For what purposes were they elected? To represent the most essential interests of their country; as the guardians of the sovereignty of the states, the happiness of the people, and their liberties. Who, as contemplated by the Constitution, was the President? The man elected, by means intended to exclude the operation of faction and ambition, as the one best entitled to public confidence and esteem. And was no confidence to be reposed in such characters, thus elected? Might it not, to say no more, be at least doubtful whether the treating power might not be as safely entrusted in such hands exclusively as with the participation and under the control of the more numerous branch of the legislature, elected in small districts, assailed by party and faction, and exposed to foreign influence and intrigue? Whatever merits this, as an original question, might possess, the people had decided their will. To the President and Senate they had given powers to make treaties; they had given no such powers to the House.
The original question (the call for papers) had now resolved itself into another, which alone had become the subject of discussion, to wit: whether a treaty made by the President and Senate was, although it embraced objects specifically delegated to Congress by the Constitution, a compact completely binding on the nation and Congress, so as to repeal any law which stood in its way, so as to oblige Congress (without leaving them any discretion except that of breaking a binding compact) to pass any law the enacting of which was necessary to fulfill a condition of the treaty, so as forever afterwards to restrain the legislative discretion of Congress upon the subjects regulated by the treaty; or, in other words, whether, when the President and Senate had, by treaty, agreed with another nation that a certain act should be done on our part, the doing of which was vested in and depended solely on the will of Congress, Congress lost the freedom of their will, the discretion of acting or refusing to act, and were bound to do the act thus agreed on by the treaty?
An assertion repeatedly made by the opposers of the motion that their doctrine rested on the letter of the Constitution, whilst that of those who contended for the powers of the House was grounded only on construction and implication, had not the least foundation. The clauses which vest certain specific legislative powers in Congress are positive, and, indeed, far better defined than that which gives the power of making treaties to the President and Senate; nor does the clause which declares laws and treaties the supreme law of the land decide in favor of either and say which shall be paramount. And yet some gentlemen had argued as if they meant to attend exclusively to one part of the Constitution, without noticing the other; the consequence was that many of their arguments applied with equal force in support of the opposite doctrine. Thus, when they said that there was no part of the Constitution which declared that the legislature had power to make a treaty; that, had it been intended to except legislative objects out of the general treaty-making power, an express proviso for that purpose should have been added to the clause which gives the power of making treaties; and that Congress, when making laws, were bound to obey the will of the people, as expressed by their agents the President and Senate; it might, with equal strength of argument, be replied that there was no part of the Constitution which declared that the President and Senate had power to make laws; that if it had been intended to except out of and to limit the legislative powers of Congress by the treaty-making power, an express proviso for that purpose should have been added to the clause which gives the legislative powers; and that the President and Senate, when making treaties, were bound to obey the will of the people as expressed by their agents, Congress. …
On 24 March, the resolution calling for the papers passed by a margin of 62 to 37.
The following message was received from the President in answer to the resolution of the House:
Gentlemen of the House of Representatives:
With the utmost attention I have considered your resolution of the 24th instant, requesting me to lay before your House a copy of the instructions to the Minister of the United States who negotiated the Treaty with the King of Great Britain, together with the correspondence and other documents relative to that treaty, excepting such of the said papers as any existing negotiation may render improper to be disclosed. …
I trust that no part of my conduct has ever indicated a disposition to withhold any information which the Constitution has enjoined upon the President, as a duty, to give, or which could be required of him by either House of Congress as a right; and, with truth, I affirm, that it has been, as it will continue to be, while I have the honor to preside in the Government, my constant endeavor to harmonize with the other branches thereof, so far as the trust delegated to me by the people of the United States and my sense of the obligation it imposes, to “preserve, protect, and defend the Constitution,” will permit.
The nature of foreign negotiations requires caution; and their success must often depend on secrecy; and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic: for this might have a pernicious influence on future negotiations; or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President with the advice and consent of the Senate; the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand, and to have, as a matter of course, all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent.
It does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment, which the resolution has not expressed. I repeat, that I have no disposition to withhold any information which the duty of my station will permit, or the public good shall require, to be disclosed; and, in fact, all the papers affecting the negotiation with Great Britain were laid before the Senate when the treaty itself was communicated for their consideration and advice.
The course which the debate has taken on the resolution of the House leads to some observations on the mode of making treaties under the Constitution of the United States.
Having been a member of the General Convention, and knowing the principles on which the Constitution was formed, I have ever entertained but one opinion on this subject, and from the first establishment of the government to this moment, my conduct has exemplified that opinion, that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur; and that every treaty so made, and promulgated, thenceforward becomes the law of the land. It is thus that the treaty-making power has been understood by foreign nations, and in all the treaties made with them, we have declared, and they have believed, that when ratified by the President, with the advice and consent of the Senate, they become obligatory. In this construction of the Constitution every House of Representatives has heretofore acquiesced, and until the present time not a doubt or suspicion has appeared to my knowledge that this construction was not the true one. Nay, they have more than acquiesced; for until now, without controverting the obligation of such treaties, they have made all the requisite provisions for carrying them into effect.
There is also reason to believe that this construction agrees with the opinions entertained by the state conventions, when they were deliberating on the Constitution, especially by those who objected to it because there was not required in commercial treaties the consent of two-thirds of the whole number of the members of the Senate, instead of two-thirds of the Senators present, and because, in treaties respecting territorial and certain other rights and claims, the concurrence of three-fourths of the whole number of the members of both Houses respectively was not made necessary.
It is a fact declared by the General Convention and universally understood that the Constitution of the United States was the result of a spirit of amity and mutual concession. And it is well known that, under this influence, the smaller states were admitted to an equal representation in the Senate with the larger States; and that this branch of the government was invested with great powers; for, on the equal participation of those powers, the sovereignty and political safety of the smaller states were deemed essentially to depend.
If other proofs than these, and the plain letter of the Constitution itself, be necessary to ascertain the point under consideration, they may be found in the Journals of the General Convention, which I have deposited in the office of the Department of State. In those Journals it will appear that a proposition was made, “that no treaty should be binding on the United States which was not ratified by a law,” and that the proposition was explicitly rejected.
As, therefore, it is perfectly clear to my understanding, that the assent of the House of Representatives is not necessary to the validity of the treaty; as the Treaty with Great Britain exhibits in itself all the objects requiring legislative provision, and on these the papers called for can throw no light; and as it is essential to the due administration of the government that the boundaries fixed by the Constitution between the different departments should be preserved—a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbid a compliance with your request.
Mr. Blount brought forward the following resolutions:
“Resolved, That, it being declared by the second section of the second article of the Constitution, lsquo;that the President shall have power, by and with the advice of the Senate, to make treaties, provided two-thirds of the Senate present concur,’ the House of Representatives do not claim any agency in making treaties; but, that when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend, for its execution, as to such stipulations, on a law or laws to be passed by Congress. And it is the Constitutional right and duty of the House of Representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon, as, in their judgment, may be most conducive to the public good.
“Resolved, That it is not necessary to the propriety of any application from this House to the Executive, for any information desired by them, and which may relate to any Constitutional functions of the House, that the purpose for which such information may be wanted, or to which the same may be applied, should be stated in the application.”
Mr. Madison rose and spoke as follows: … When the bill for establishing a national bank was under consideration, he had opposed it as not warranted by the Constitution, and incidentally remarked that his impression might be stronger as he remembered that in the convention, a motion was made and negatived for giving Congress a power to grant charters of incorporation. This slight reference to the convention, he said, was animadverted on by several in the course of the debate, and particularly by a gentleman from Massachusetts, who had himself been a member of the convention, and whose remarks were not unworthy the attention of the committee. Here Mr. M. read a paragraph in Mr. Gerry’s speech, from the Gazette of the United States, p. 814, protesting in strong terms against arguments drawn from that source.
Mr. M. said he did not believe a single instance could be cited in which the sense of the convention had been required or admitted as material in any constitutional question. In the case of the bank, the committee had seen how a glance at that authority had been treated in this House. When the question on the suability of the states was depending on the supreme court, he asked whether it had ever been understood that the members of the bench who had been members of the convention were called on for the meaning of the convention of that very important point, although no constitutional question would be presumed more susceptible of elucidation from that source.
He then adverted to that part of the message which contained an extract from the journal of the convention, showing that a proposition “that no treaty should be binding on the United States, which was not ratified by law,” was explicitly rejected. … What did this abstract vote amount to? Did it condemn the doctrine of the majority? So far from it that, as he understood their doctrine, they must have voted as the convention did: For they do not contend that no treaty shall be operative without a law to sanction it; on the contrary they admit that some treaties will operate without this sanction; and that it is no further applicable in any case than where legislative objects are embraced by treaties. The term ratify also deserved some attention, for although of loose signification in general, it had a technical meaning different from the agency claimed by the House on the subject of treaties.
But, after all, whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in the expounding the Constitution. As the instrument came from them, it was nothing more than the draught of a plan, nothing but a dead letter, until life and validity were breathed into it, by the voice of the people, speaking throughout the several state conventions. If we were to look, therefore, for the meaning of the instrument, beyond the face of the instrument, we must look for it not in the general convention which proposed, but in the state conventions which accepted and ratified the constitution. To these also the message had referred, and it would be proper to follow it.
The debates of the conventions in three states, Pennsylvania, Virginia, and N. Carolina, had been before introduced into the discussion of this subject, and were he believed the only publications of the sort which contained any lights with respect to it. He would not fatigue the committee with a repetition of the passages then read to them. He would only appeal to the committee to decide whether it did not appear from a candid and collected view of the debates in those conventions, and particularly in that of Virginia, that the treaty-making power was a limited power; and that the powers in our Constitution, on this subject, bore an analogy to the powers on the same subject in the government of G. Britain.
The amendments proposed by the several conventions were better authority and would be found on a general view to favor the sense of the Constitution which had prevailed in this House. … He would not undertake to say that the particular amendment referred to in the message by which two states required that “no commercial treaty should be ratified without the consent of two thirds of the whole number of Senators; and that no territorial rights &c. should be ceded without the consent of three fourths of the members of both houses” was digested with an accurate attention to the whole subject. On the other hand it was no proof that those particular conventions in annexing these guards to the treaty power understood it as different from that espoused by the majority of the House. They might consider Congress as having the power contended for over treaties stipulating on legislative subjects and still very consistently wish for the amendment they proposed. …
But said Mr. M. it will be proper to attend to other amendments proposed by the ratifying conventions, which may throw light on their opinions and intentions on the subject in question. He then read from the Declaration of Rights proposed by Virginia to be prefixed to the Constitution, the 7th article as follows:
“That all power of suspending laws, or the execution of laws by any authority without the consent of the Representatives of the people in the Legislature, is injurious to their rights, and ought not to be exercised.”
The convention of North Carolina, as he showed, had laid down the same principle in the same words. And it was to be observed that in both conventions, the article was under the head of a Declaration of Rights, “asserting and securing from encroachment the essential and inalienable rights of the people” according to the language of the Virginia convention; and “asserting and securing from encroachment the great principles of civil and religious liberty, and the inalienable rights of the people” as expressed by the convention of North Carolina. It must follow that these two conventions considered it as a fundamental and inviolable and universal principle in free governments that no power could supercede a law without the consent of the Representatives of the people in the legislature.
In the Maryland convention also, it was among the amendments proposed, though he believed not decided on, “that no power of suspending laws, or the execution of laws, unless derived from the Legislature, ought to be exercised or allowed.”
The convention of North Carolina had further explained themselves on this point by their 23rd amendment proposed to the Constitution, in the following words, “That no treaties which shall be directly opposed to the existing laws of the United States in Congress assembled, shall be valid until such laws shall be repealed, or made conformable to such treaty; nor shall any treaty be valid which is contradictory to the Constitution of the United States.” …
It was with great reluctance, he said, that he should touch on the third topic, the alledged interest of the smaller states in the present question. He was the more unwilling to enter into this delicate part of the discussion as he happened to be from a state which was in one of the extremes in point of size. He should limit himself therefore to two observations. The first was, that if the spirit of amity and mutual concession from which the Constitution resulted was to be consulted on expounding it, that construction ought to be favored which would preserve the mutual control between the Senate and the House of Representatives, rather than that which gave powers to the Senate not controllable by and paramount over those of the House of Representatives, whilst the House of Representatives could in no instance exercise their powers without the participation and control of the Senate. The second observation was that whatever jealousy might have unhappily prevailed between the smaller and larger states, as they had most weight in one or other branch of the government, it was a fact, for which he appealed to the journals of the old Congress from its birth to its dissolution, and to those of the Congress under the present government, that in no instance would it appear from the yeas and nays that a question had been decided by a division of the votes according to the size of the states. He considered this truth as worthy of the most pleasing and consoling reflection, and as one that ought to have the most conciliating and happy influence on the temper of all the states.
A fourth argument in the message was drawn from the manner by which the treaty power had been understood in both parties in the negotiations with foreign powers. “In all the treaties made we have declared and they have believed, &c.” By we he remarked, was to be understood the executive alone who had made the declaration, and in no respect, the House of Representatives. It was certainly to be regretted as had often been expressed that different branches of the government should disagree in the construction of their powers; but when this could not be avoided, each branch must judge for itself; and the judgment of the executive could in this case be no more an authority overruling the judgment of the House than the judgment of the House could be an authority overruling that of the executive. It was also to be regretted that any foreign nation should at any time proceed under a misconception of the meaning of our Constitution. But no principle was better established in the law of nations, as well as in common reason, than that one nation is not to be the interpreter of the constitution of another. Each nation must adjust the forms and operation of its own government: and all others are bound to understand them accordingly. It had before been remarked, and it would be proper to repeat here, that of all nations Great Britain would be least likely to object to this principle, because the construction given to our government was particularly exemplified in her own.
In the fifth and last place, he had to take notice of the suggestion that every House of Representatives had concurred in the construction of the treaty power now maintained by the executive; from which it followed that the House could not now consistently act under a different construction. On this point it might be sufficient to remark that this was the first instance in which a foreign treaty had been made since the establishment of the Constitution; and that this was the first time the treaty-making power had come under formal and accurate discussion. Precedents, therefore, would readily be seen to lose much of their weight. But whether the precedents found in the proceedings preparatory to the Algerine treaty or in the provisions relative to the Indian treaties were inconsistent with the right which had been contended for in behalf of the House, he should leave to be decided by the committee. A view of these precedents had been pretty fully presented to them by a gentleman from New York (Mr. Livingston) with all the observations which the subject seemed to require.
On the whole, it appeared that the rights of the House on two great constitutional points had been denied by a high authority in the message before the committee. This message was entered on the journals of the House. If nothing was entered in opposition thereto, it would be inferred that the reasons in the message had changed the opinion of the House, and that their claims on those great points were relinquished. It was proper therefore that the questions brought fairly before the committee in the propositions of the gentleman (Mr. Blount) from North Carolina should be examined and formally decided. If the reasoning of the message should be deemed satisfactory, it would be the duty of this branch of the government to reject the propositions, and thus accede to the doctrines asserted by the executive: If on the other hand this reasoning should not be satisfactory, it would be equally the duty of the House, in some such firm, but very decent terms, as are proposed, to enter their opinions on record. In either way, the meaning of the Constitution would be established as far as depends on a vote of the House of Representatives.
Although the resolution reaffirming the House’s right to call for the papers passed by a margin of 57 to 35, Washington continued to withhold them. Debate then turned to the merits of the treaty. Little could be added that had not been hackneyed in the press, but the proceedings concluded with one of the most famous speeches of the decade, rendered all the more effective because the speaker, pale and garbed in black, rose from his sickbed to give it. Anticipating its delivery, many senators were in the gallery; and, according to John Adams, there were many tears. On the following morning, 29 April, Frederick Muhlenberg of Pennsylvania, who was in the chair of the committee of the whole, cast a tie-breaking vote for carrying the treaty into effect.
Mr. Fisher-Ames rose and addressed the Chair as follows:
Mr. Chairman: I entertain the hope, perhaps a rash one, that my strength will hold me out to speak a few minutes. …
It would be strange that a subject which has roused in turn all the passions of the country should be discussed without the interference of any of our own. We are men and, therefore, not exempt from those passions; as citizens and representatives, we feel the interest that must excite them. The hazard of great interests cannot fail to agitate strong passions; we are not disinterested, it is impossible we should be dispassionate. The warmth of such feelings may becloud the judgment and, for a time, pervert the understanding; but the public sensibility and our own has sharpened the spirit of inquiry and given an animation to the debate. The public attention has been quickened to mark the progress of the discussion, and its judgment, often hasty and erroneous on first impressions, has become solid and enlightened at last. Our result will, I hope, on that account, be the safer and more mature, as well as more accordant with that of the nation. The only constant agents in political affairs are the passions of men—shall we complain of our nature? Shall we say that man ought to have been made otherwise? It is right already, because He from whom we derive our nature ordained it so, and because thus made and thus acting, the cause of truth and the public good is the more surely promoted.
But an attempt has been made to produce an influence of a nature more stubborn and more unfriendly to truth. It is very unfairly pretended that the constitutional right of this House is at stake, and to be asserted and preserved only by a vote in the negative. We hear it said that this is a struggle for liberty, a manly resistance against the design to nullify this assembly and to make it a cipher in the government. That the President and Senate, the numerous meetings in the cities, and the influence of the general alarm of the country are the agents and instruments of a scheme of coercion and terror, to force the treaty down our throats, though we loathe it, and in spite of the clearest convictions of duty and conscience.
It is necessary to pause here and inquire whether suggestions of this kind be not unfair in their very texture and fabric, and pernicious in all their influences? They oppose an obstacle in the path of inquiry, not simply discouraging, but absolutely insurmountable. They will not yield to argument; for, as they were not reasoned up, they cannot be reasoned down. They are higher than a Chinese wall in truth’s way, and built of materials that are indestructible. While this remains, it is in vain to argue; it is in vain to say to this mountain, be thou cast into the sea. …
The self-love of an individual is not warmer in its sense or more constant in its action than what is called in French l’esprit de corps, or the self-love of an assembly; that jealous affection which a body of men is always found to bear towards its own prerogatives and power. I will not condemn this passion. … [T]his very spirit is a guardian instinct that watches over the life of this assembly. It cherishes the principle of self-preservation; and without its existence, and its existence with all the strength we see it possess, the privileges of the representatives of the people, and immediately the liberties of the people, would not be guarded, as they are, with a vigilance that never sleeps and an unrelaxing constancy and courage.
If the consequences most unfairly attributed to the vote in the affirmative were not chimerical and worse, for they are deceptive, I should think it a reproach to be found even moderate in my zeal to assert the constitutional powers of this assembly; and whenever they shall be in real danger, the present occasion affords proof that there will be no want of advocates and champions. …
… This, incredible and extravagant as it may seem, is asserted. … [T]he President and Senate are to make national bargains, and this House has nothing to do in making them. But bad bargains do not bind this House and, of inevitable consequence, do not bind the nation. When a national bargain, called a treaty, is made, its binding force does not depend upon the making, but upon our opinion that it is good. As our opinion on the matter can be known and declared only by ourselves, when sitting in our legislative capacity, the treaty, though ratified and, as we choose to term it, made, is hung up in suspense till our sense is ascertained. We condemn the bargain and it falls, though, as we say, our faith does not. We approve a bargain as expedient and it stands firm and binds the nation. Yet, even in this latter case, its force is plainly not derived from the ratification by the treaty-making power, but from our approbation. Who will trace these inferences and pretend that we may have no share, according to the argument, in the treaty-making power? These opinions, nevertheless, have been advocated with infinite zeal and perseverance. Is it possible that any man can be hardy enough to avow them and their ridiculous consequences? …
If we choose to observe it with good faith, our course is obvious. Whatever is stipulated to be done by the nation must be complied with. Our agency, if it should be requisite, cannot be properly refused. And I do not see why it is not as obligatory a rule of conduct for the legislature as for the courts of law. …
Shall we break the treaty?
The treaty is bad, fatally bad, is the cry. It sacrifices the interest, the honor, the independence of the United States, and the faith of our engagements to France. If we listen to the clamor of party intemperance, the evils are of a number not to be counted and of a nature not to be borne, even in idea. The language of passion and exaggeration may silence that of sober reason in other places, it has not done it here. The question here is whether the treaty be really so very fatal as to oblige the nation to break its faith? I admit that such a treaty ought not to be executed. I admit that self-preservation is the first law of society as well as of individuals. It would, perhaps, be deemed an abuse of terms to call that a treaty which violates such a principle. …
But I lay down two rules which ought to guide us in this case. The treaty must appear to be bad, not merely in the petty details, but in its character, principle, and mass. And, in the next place, this ought to be ascertained by the decided and general concurrence of the enlightened public. …
[But] what do those mean who say that our honor was forfeited by treating at all, and especially by such a treaty? Justice, the laws and practice of nations, a just regard for peace as a duty to mankind and known wish of our citizens, as well as that self-respect which required it of the nation to act with dignity and moderation—all these forbid an appeal to arms before we had tried the effect of negotiation. The honor of the United States was saved, not forfeited, by treating. The treaty itself, by its stipulations for the posts, for indemnity, and for a due observance of our neutral rights, has justly raised the character of the nation. Never did the name of America appear in Europe with more luster than upon the event of ratifying this instrument. The fact is of a nature to overcome all contradiction. …
I proceed to the second proposition which I have stated as indispensably requisite to a refusal of the performance of the treaty. Will the state of public opinion justify the deed? …
Who, I would inquire, is hardy enough to pretend that the public voice demands the violation of the treaty? The evidence of the sense of the great mass of the nation is often equivocal. But when was it ever manifested with more energy and precision than at the present moment? The voice of the people is raised against the measure of refusing the appropriations. … Is the treaty ruinous to our commerce? What has blinded the eyes of the merchants and traders? Surely they are not enemies to trade or ignorant of their own interests. Their sense is not so liable to be mistaken as that of a nation, and they are almost unanimous… .
The consequences of refusing to make provision for the treaty are not all to be foreseen. By rejecting, vast interests are committed to the sport of the winds, chance becomes the arbiter of events, and it is forbidden to human foresight to count their number or measure their extent. Before we resolve to leap into this abyss, so dark and so profound, it becomes us to pause and reflect upon such of the dangers as are obvious and inevitable… .
… Five millions of dollars, and probably more, on the score of spoliations committed on our commerce, depend upon the treaty. The treaty offers the only prospect of indemnity. … Will you interpose and frustrate that hope, leaving to many families nothing but beggary and despair? …
The refusal of the posts (inevitable if we reject the treaty) is a measure too decisive in its nature to be neutral in its consequences. From great causes we are to look for great effects. A plain and obvious one will be, the price of the Western lands will fall. Settlers will not choose to fix their habitation on a field of battle… .
On this theme, my emotions are unutterable. If I could find words for them—if my powers bore any proportion to my zeal—I would swell my voice to such a note of remonstrance it should reach every log house beyond the mountains. I would say to the inhabitants, Wake from your false security! Your cruel dangers—your more cruel apprehensions—are soon to be renewed; the wounds, yet unhealed, are to be torn open again. In the daytime, your path through the woods will be ambushed; the darkness of midnight will glitter with the blaze of your dwellings. You are a father: the blood of your sons shall fatten your corn-field! You are a mother: the war whoop shall wake the sleep of the cradle! …
By rejecting the posts, we light the savage fires—we bind the victims. This day we undertake to render account to the widows and orphans whom our decision will make; to the wretches that will be roasted at the stake; to our country; and I do not deem it too serious to say, to conscience and to God… .
… The voice of humanity issues from the shade of their wilderness. It exclaims that, while one hand is held up to reject this treaty, the other grasps a tomahawk. It summons our imagination to the scenes that will open. It is no great effort of the imagination to conceive that events so near are already begun. I can fancy that I listen to the yells of savage vengeance and the shrieks of torture. Already they seem to sigh in the west wind; already they mingle with every echo from the mountains… .
Look again at this state of things. On the seacoast, vast losses uncompensated. On the frontier, Indian war, actual encroachment on our territory. Everywhere discontent; resentments ten-fold more fierce because they will be impotent and humbled; national discord and abasement… .
I rose to speak under impressions that I would have resisted if I could. Those who see me will believe that the reduced state of my health has unfitted me, almost equally, for much exertion of body or mind. … Sinking, as I really am, under a sense of weakness, I imagined the very desire of speaking was extinguished by the persuasion that I had nothing to say. Yet, when I come to the moment of deciding the vote, I start back with dread from the edge of the pit into which we are plunging. In my view, even the minutes I have spent in expostulation have their value, because they protract the crisis and the short period in which alone we may resolve to escape it.
I have thus been led by my feelings to speak more at length than I had intended; yet I have, perhaps, as little personal interest in the event as anyone here. There is, I believe, no member who will not think his chance to be a witness of the consequences greater than mine. If, however, the vote should pass to reject and a spirit should rise, as it will, with the public disorders, to make confusion worse confounded, even I, slender and almost broken as my hold upon life is, may outlive the government and Constitution of my country.
Washington’s Farewell Address 19 September 1796
In the aftermath of the national argument over the British treaty, during his final year in office, Washington’s virtual immunity from partisan attacks could no longer protect him. Several Republican publicists mounted a deliberate campaign to destroy his reputation. In these circumstances, the famous Farewell Address was partly a partisan statement.
Friends and Fellow-Citizens: The period for a new elec-tion of a citizen to administer the executive government of the United States being not far distant, and the time actually arrived when your thoughts must be employed in designating the person who is to be clothed with that important trust, it appears to me proper, especially as it may conduce to a more distinct expression of the public voice, that I should now apprise you of the resolution I have formed to decline being considered among the number of those out of whom a choice is to be made.
I beg you, at the same time, to do me the justice to be assured that this resolution has not been taken without a strict regard to all the considerations appertaining to the relation which binds a dutiful citizen to his country, and that, in withdrawing the tender of service which silence in my situation might imply, I am influenced by no diminution of zeal for your future interest, no deficiency of grateful respect for your past kindness; but am supported by a full conviction that the step is compatible with both.
The acceptance of, and continuance hitherto in, the office to which your suffrages have twice called me have been a uniform sacrifice of inclination to the opinion of duty, and to a deference for what appeared to be your desire. I constantly hoped that it would have been much earlier in my power, consistently with motives which I was not at liberty to disregard, to return to that retirement from which I had been reluctantly drawn. The strength of my inclination to do this, previous to the last election, had even led to the preparation of an address to declare it to you; but mature reflection on the then perplexed and critical posture of our affairs with foreign nations, and the unanimous advice of persons entitled to my confidence, impelled me to abandon the idea.
I rejoice that the state of your concerns, external as well as internal, no longer renders the pursuit of inclination incompatible with the sentiment of duty or propriety; and am persuaded, whatever partiality may be retained for my services, that in the present circumstances of our country, you will not disapprove my determination to retire.
In looking forward to the moment which is intended to terminate the career of my public life, my feelings do not permit me to suspend the deep acknowledgment of that debt of gratitude which I owe to my beloved country for the many honors it has conferred upon me; still more for the stedfast confidence with which it has supported me; and for the opportunities I have thence enjoyed of manifesting my inviolable attachment, by services faithful and persevering, though in usefulness unequal to my zeal. If benefits have resulted to our country from these services, let it always be remembered to your praise, and as an instructive example in our annals, that, under circumstances in which the passions agitated in every direction were liable to mislead, amidst appearances sometimes dubious, vicissitudes of fortune often discouraging, in situations in which not infrequently want of success has countenanced the spirit of criticism, the constancy of your support was the essential prop of the efforts, and a guarantee of the plans by which they were effected. Profoundly penetrated with this idea, I shall carry it with me to my grave, as a strong incitement to unceasing vows that Heaven may continue to you the choicest tokens of its beneficence; that your Union and brotherly affection may be perpetual; that the free constitution, which is the work of your hands, may be sacredly maintained; that its administration in every department may be stamped with wisdom and virtue; that, in fine, the happiness of the people of these states, under the auspices of liberty, may be made complete, by so careful a preservation and so prudent a use of this blessing as will acquire to them the glory of recommending it to the applause, the affection, and adoption of every nation which is yet a stranger to it.
Here, perhaps, I ought to stop. But a solicitude for your welfare, which cannot end but with my life, and the apprehension of danger natural to that solicitude, urge me on an occasion like the present to offer to your solemn contemplation, and to recommend to your frequent review, some sentiments which are the result of much reflection, of no inconsiderable observation, and which appear to me all important to the permanency of your felicity as a people. These will be offered to you with the more freedom as you can only see in them the disinterested warnings of a parting friend, who can possibly have no personal motive to bias his counsel. Nor can I forget, as an encouragement to it, your indulgent reception of my sentiments on a former and not dissimilar occasion.
Interwoven as is the love of liberty with every ligament of your hearts, no recommendation of mine is necessary to fortify or confirm the attachment.
The unity of government which constitutes you one people is also now dear to you. It is justly so, for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad, of your safety, of your prosperity, of that very liberty which you so highly prize. But as it is easy to foresee that from different causes and from different quarters, much pains will be taken, many artifices employed, to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment that you should properly estimate the immense value of your national Union to your collective and individual happiness; that you should cherish a cordial, habitual and immovable attachment to it; accustoming yourselves to think and speak of it as of the Palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned, and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.
For this you have every inducement of sympathy and interest. Citizens by birth or choice of a common country, that country has a right to concentrate your affections. The name of American, which belongs to you, in your national capacity, must always exalt the just price of patriotism, more than any appellation derived from local discriminations. With slight shades of difference, you have the same religion, manners, habits, and political principles. You have in a common cause fought and triumphed together. The independence and liberty you possess are the work of joint councils and joint efforts; of common dangers, sufferings, and successes.
But these considerations, however powerfully they address themselves to your sensibility, are greatly outweighed by those which apply more immediately to your interest. Here every portion of our country finds the most commanding motives for carefully guarding and preserving the Union of the whole.
The North, in an unrestrained intercourse with the South, protected by the equal laws of a common government, finds in the productions of the latter great additional resources of maritime and commercial enterprise and precious materials of manufacturing industry. The South, in the same intercourse, benefiting by the agency of the North, sees its agriculture grow and its commerce expand. Turning partly into its own channels the seamen of the North, it finds its particular navigation invigorated; and while it contributes, in different ways, to nourish and increase the general mass of the national navigation, it looks forward to the protection of the maritime strength to which itself is unequally adapted. The East, in a like intercourse with the West, already finds, and in the progressive improvement of interior communications by land and water, will more and more find a valuable vent for the commodities which it brings from abroad or manufactures at home. The West derives from the East supplies requisite to its growth and comfort, and what is perhaps of still greater consequence, it must of necessity owe the secure enjoyment of indispensable outlets for its own productions to the weight, influence, and the future maritime strength of the Atlantic side of the Union, directed by an indissoluble community of interest as one nation. Any other tenure by which the West can hold this essential advantage, whether derived from its own separate strength or from an apostate and unnatural connection with any foreign power, must be intrinsically precarious.
While, then, every part of our country thus feels an immediate and particular interest in Union, all the parts combined cannot fail to find in the united mass of means and efforts greater strength, greater resource, proportionately greater security from external danger, a less frequent interruption of their peace by foreign nations; and, what is of inestimable value! they must derive from Union an exemption from those broils and wars between themselves which so frequently afflict neighboring countries not tied together by the same government; which their own rivalships alone would be sufficient to produce, but which opposite foreign alliances, attachments, and intrigues would stimulate and embitter. Hence likewise they will avoid the necessity of those overgrown military establishments which under any form of government are inauspicious to liberty, and which are to be regarded as particularly hostile to Republican Liberty: In this sense it is that your Union ought to be considered as a main prop of your liberty, and that the love of the one ought to endear to you the preservation of the other.
These considerations speak a persuasive language to every reflecting and virtuous mind, and exhibit the continuance of the Union as a primary object of patriotic desire. Is there a doubt whether a common government can embrace so large a sphere? Let experience solve it. To listen to mere speculation in such a case were criminal. We are authorized to hope that a proper organization of the whole, with the auxiliary agency of governments for the respective subdivisions, will afford a happy issue to the experiment. ’Tis well worth a fair and full experiment. With such powerful and obvious motives to Union, affecting all parts of our country, while experience shall not have demonstrated its impracticability, there will always be reason to distrust the patriotism of those who in any quarter may endeavor to weaken its bands.
In contemplating the causes which may disturb our Union, it occurs as matter of serious concern that any ground should have been furnished for characterizing parties by geographical discriminations: Northern and Southern; Atlantic and Western; whence designing men may endeavor to excite a belief that there is a real difference of local interests and views. One of the expedients of party to acquire influence within particular districts is to misrepresent the opinions and aims of other districts. You cannot shield yourselves too much against the jealousies and heart burnings which spring from these misrepresentations. They tend to render alien to each other those who ought to be bound together by fraternal affection. The inhabitants of our Western country have lately had a useful lesson on this head. They have seen, in the negotiation by the Executive and in the unanimous ratification by the Senate, of the treaty with Spain, and in the universal satisfaction at that event throughout the United States, a decisive proof how unfounded were the suspicions propagated among them of a policy in the general government and in the Atlantic states unfriendly to their interests in regard to the Mississippi. They have been witnesses to the formation of two treaties, that with G. Britain and that with Spain, which secure to them everything they could desire in respect to our foreign relations towards confirming their prosperity. Will it not be their wisdom to rely for the preservation of these advantages on the Union by which they were procured? Will they not henceforth be deaf to those advisers, if such there are, who would sever them from their brethren and connect them with aliens?
To the efficacy and permanency of Your Union, a government for the whole is indispensable. No alliances however strict between the parts can be an adequate substitute. They must inevitably experience the infractions and interruptions which all alliances in all times have experienced. Sensible of this momentous truth, you have improved upon your first essay by the adoption of a Constitution of Government better calculated than your former for an intimate Union, and for the efficacious management of your common concerns. This government, the offspring of our own choice uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty. The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, ’till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.
All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities are destructive of this fundamental principle and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put in the place of the delegated will of the nation the will of the party; often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common councils and modified by mutual interests. However combinations or associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reins of government; destroying afterwards the very engines which have lifted them to unjust dominion.
Towards the preservation of your government and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. In all the changes to which you may be invited, remember that time and habit are at least as necessary to fix the true character of governments as of other human institutions; that experience is the surest standard by which to test the real tendency of the existing Constitution of a country; that facility in changes upon the credit of mere hypotheses and opinion exposes to perpetual change, from the endless variety of hypotheses and opinion: and remember, especially, that for the efficient management of your common interests, in a country so extensive as ours, a government of as much vigor as is consistent with the perfect security of liberty is indispensable. Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian. It is indeed little else than a name where the government is too feeble to withstand the enterprises of faction, to confine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property.
I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view and warn you in the most solemn manner against the baneful effects of the spirit of party, generally.
This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but in those of the popular form it is seen in its greatest rankness and is truly their worst enemy.
The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetuated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual: and sooner or later the chief of some prevailing faction more able or more fortunate than his competitors turns this disposition to the purposes of his own elevation on the ruins of public liberty.
Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight) the common and continual mischiefs of the spirit of party are sufficient to make it the interest and the duty of a wise people to discourage and restrain it.
It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.
There is an opinion that parties in free countries are useful checks upon the administration of the government and serve to keep alive the spirit of liberty. This within certain limits is probably true, and in governments of a monarchical cast patriotism may look with indulgence, if not with favor, upon the spirit of party. But in those of the popular character, in governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And there being constant danger of excess, the effort ought to be, by force of public opinion, to mitigate and assuage it. A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.
Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.
’Tis substantially true that virtue or morality is a necessary spring of popular government. The rule indeed extends with more or less force to every species of free government. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric.
Promote then as an object of primary importance institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened.
As a very important source of strength and security, cherish public credit. One method of preserving it is to use it as sparingly as possible: avoiding occasions of expense by cultivating peace, but remembering also that timely disbursements to prepare for danger frequently prevent much greater disbursements to repel it; avoiding likewise the accumulation of debt, not only by shunning occasions of expense, but vigorous exertions in time of peace to discharge the debts which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burden which we ourselves ought to bear. The execution of these maxims belongs to your representatives, but it is necessary that public opinion should cooperate. To facilitate to them the performance of their duty, it is essential that you should practically bear in mind that, towards the payment of debts, there must be revenue; that to have revenue there must be taxes; that no taxes can be devised which are not more or less inconvenient and unpleasant; that the intrinsic embarrassment inseparable from the selection of the proper objects (which is always a choice of difficulties) ought to be a decisive motive for a candid construction of the conduct of the government in making it, and for a spirit of acquiescence in the measures for obtaining revenue which the public exigencies may at any time dictate.
Observe good faith and justice towards all nations. Cultivate peace and harmony with all. Religion and morality enjoin this conduct; and can it be that good policy does not equally enjoin it? It will be worthy of a free, enlightened, and, at no distant period, a great nation, to give to mankind the magnanimous and too novel example of a people always guided by an exalted justice and benevolence. Who can doubt that in the course of time and things the fruits of such a plan would richly repay any temporary advantages which might be lost by a steady adherence to it? Can it be that Providence has not connected the permanent felicity of a nation with its virtue? The experiment, at least, is recommended by every sentiment which ennobles human nature. Alas! is it rendered impossible by its vices?
In the execution of such a plan nothing is more essential than that permanent, inveterate antipathies against particular nations and passionate attachments for others should be excluded; and that in place of them just and amicable feelings towards all should be cultivated. The nation which indulges towards another an habitual hatred, or an habitual fondness, is in some degree a slave. It is a slave to its animosity or to its affection, either of which is sufficient to lead it astray from its duty and its interest. Antipathy in one nation against another disposes each more readily to offer insult and injury, to lay hold of slight causes of umbrage, and to be haughty and intractable when accidental or trifling occasions of dispute occur. Hence frequent collisions, obstinate, envenomed, and bloody contests. The nation, prompted by ill will and resentment, sometimes impels to war the government, contrary to the best calculations of policy. The government sometimes participates in the national propensity and adopts through passion what reason would reject; at other times, it makes the animosity of the nation subservient to projects of hostility instigated by pride, ambition, and other sinister and pernicious motives. The peace often, sometimes perhaps the liberty, of nations has been the victim.
So likewise, a passionate attachment of one nation for another produces a variety of evils. Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest, in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter, without adequate inducement or justification: It leads also to concessions to the favorite nation of privileges denied to others, which is apt doubly to injure the nation making the concessions; by unnecessarily parting with what ought to have been retained and by exciting jealousy, ill will, and a disposition to retaliate in the parties from whom equal privileges are withheld: And it gives to ambitious, corrupted, or deluded citizens (who devote themselves to the favorite nation) facility to betray or sacrifice the interests of their own country without odium, sometimes even with popularity; gilding with the appearances of a virtuous sense of obligation a commendable deference for public opinion or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation.
As avenues to foreign influence in innumerable ways, such attachments are particularly alarming to the truly enlightened and independent patriot. How many opportunities do they afford to tamper with domestic factions, to practice the arts of seduction, to mislead public opinion, to influence or awe the public councils? Such an attachment of a small or weak towards a great and powerful nation dooms the former to be the satellite of the latter.
Against the insidious wiles of foreign influence (I conjure you to believe me fellow citizens), the jealousy of a free people ought to be constantly awake; since history and experience prove that foreign influence is one of the most baneful foes of republican government. But that jealousy to be useful must be impartial; else it becomes the instrument of the very influence to be avoided, instead of a defense against it. Excessive partiality for one foreign nation and excessive dislike of another cause those whom they actuate to see danger only on one side, and serve to veil and even second the arts of influence on the other. Real patriots, who may resist the intrigues of the favorite, are liable to become suspected and odious; while its tools and dupes usurp the applause and confidence of the people, to surrender their interests.
The great rule of conduct for us in regard to foreign nations is, in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements let them be fulfilled, with perfect good faith. Here let us stop.
Europe has a set of primary interests which to us have none or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves, by artificial ties, in the ordinary vicissitudes of her politics or the ordinary combinations and collisions of her friendships or enmities.
Our detached and distant situation invites and enables us to pursue a different course. If we remain one people, under an efficient government, the period is not far off when we may defy material injury from external annoyance; when we may take such an attitude as will cause the neutrality we may at any time resolve upon to be scrupulously respected; when belligerent nations, under the impossibility of making acquisitions upon us, will not lightly hazard the giving us provocation; when we may choose peace or war as our interest guided by our justice shall counsel.
Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice?
’Tis our true policy to steer clear of permanent alliances with any portion of the foreign world. So far, I mean, as we are now at liberty to do it, for let me not be understood as capable of patronizing infidelity to existing engagements (I hold the maxim no less applicable to public than to private affairs that honesty is always the best policy). I repeat it, therefore, let those engagements be observed in their genuine sense. But in my opinion, it is unnecessary and would be unwise to extend them.
Taking care always to keep ourselves, by suitable establishments, on a respectably defensive posture, we may safely trust to temporary alliances for extraordinary emergencies.
Harmony, liberal intercourse with all nations, are recommended by policy, humanity and interest. But even our commercial policy should hold an equal and impartial hand: neither seeking nor granting exclusive favors or preferences; consulting the natural course of things; diffusing and diversifying by gentle means the streams of commerce, but forcing nothing; establishing with powers so disposed, in order to give to trade a stable course, to define the rights of our merchants, and to enable the government to support them, conventional rules of intercourse, the best that present circumstances and mutual opinion will permit, but temporary, and liable to be from time to time abandoned or varied as experience and circumstances shall dictate; constantly keeping in view that ’tis folly in one nation to look for disinterested favors from another; that it must pay with a portion of its independence for whatever it may accept under that character; that, by such acceptance, it may place itself in the condition of having given equivalents for nominal favors and yet of being reproached with ingratitude for not giving more. There can be no greater error than to expect or calculate upon real favors from nation to nation. ’Tis an illusion which experience must cure, which a just pride ought to discard.
In offering to you, my countrymen, these counsels of an old and affectionate friend, I dare not hope they will make the strong and lasting impression I could wish; that they will control the usual current of the passions or prevent our nation from running the course which has hitherto marked the destiny of nations. But if I may even flatter myself that they may be productive of some partial benefit, some occasional good; that they may now and then recur to moderate the fury of party spirit, to warn against the mischiefs of foreign intrigue, to guard against the impostures of pretended patriotism; this hope will be a full recompense for the solicitude for your welfare by which they have been dictated.
[*]The chapter on prerogative shows how much the reason of the philosopher was clouded by the royalism of the Englishman.