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“Self-Created Societies” - 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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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.