Features of Mr. Jay's Treaty 
 
 Alexander James Dallas
 
 UNIVERSITY OF CALIFORNIA 
 AT LOS ANGELES 
 
 ROBERT ERNEST COWAN
 
 FEATURES 
 
 ,OF 
 
 Mr. JATs TREATY. 
 
 TO WHICH IS ANNEXED 
 
 A View of the Commerce of the 
 UNITED STATES, 
 
 AS IT 
 
 STANDS AT PRESENT, AND AS IT IS FIXED BY 
 Mr. JAT's TREATT. 
 
 ; 
 
 PHILADELPHIA: 
 PRINTED FOR MATHEW CAREY, BY LANG & USTICK. 
 
 J 795-
 
 ~ "3. 
 
 CONTENTS. 
 
 I. The origin and progrefs of the negotiation for the Treaty , are 
 
 not calculated to excite confidence 5 
 
 II. Nothing is fettled by the Treaty 8 
 
 III. The Treaty contains a colourable, but no real Reciprojity itj. 
 
 IV. The Treaty is an injlrument of Party It 
 
 V. The Treaty is a violation of the general principles of neutrality, 
 
 and is in colltfion with the pojitme previous engagements which 
 fubjifl between America and France 14 
 
 VI. The Treaty with Great Britain is calculated to injure the 
 United States, in the friendjhip and favour of other foreign 
 nations 1 9 
 
 VII. The Treaty with Great Britain is impolitic and pernicious, 
 in refpetl to the dome/lie interejls and happinefs of the United 
 States 2 1 
 
 VIII. The Britifh Treaty and the Conjiitution of the United States, 
 are at war with each other 26 
 
 VIEW of the commerce of the United States, as itjlands at prefent, 
 
 and as it is fxed by Mr. Jay's Treaty 4$ 
 
 Si-s
 
 [FROM THE AMERICAN DAILY ADTERTISER.] 
 
 Meflrs. Dunlap & Claypoole, 
 
 THE following Sketch of " The Features of Mr. Jay's Treaty," was 
 made, originally, with a view to af cert am, for private fatisfaHion, 
 the principles and operation of an Injlrument, which has excited fitch 
 txtenfive curi'fity, and is calculated to produce fuch important effeds. 
 It is publifbed, however, at the injtance of feveral perfons, who 
 think that the fuljeS Jhould le placed in every pojjible light ; and 
 that no citizen can be jujlifed at this crips, in fupprej/ing his opi- 
 nions, or in withholding his Jhare of information from the common 
 Jlock. But while it is committed to theprefs, I wi/b it to be con- 
 Jidered merely as a text, which may hereafter be extended by com- 
 mentary, or explained by ilhiftrntion ; and though it will give me 
 pleafure (fince my fole olyefl on this occajion is the invejligation of 
 polit'ual truth) to fee it become a fourct of candid animadverfion, / 
 trujl it will not, according to the cujlom of contending parties, be 
 regarded as an injlrument of faQ'ion, nor be made the foundation 
 f Jlander and abuf*.
 
 FEATURES 
 
 O F 
 
 Mr. jfay's Treaty. 
 
 I. The origin and progrefs of the negotiation for the Treaty, are not 
 calculated to excite confidence. 
 
 I. r I ^HE adminiftration of our government have, feemingly at 
 leaft, manifefted a policy favourable to Great Britain, and 
 adverfe to France. 
 
 2. But the houfe of reprefentatives of Congrefs, imprefTed with 
 the general ill conduct of Great Britain towards America, were 
 adopting meafures, of a mild, though retaliating nature, to obtain 
 redrefs and indemnification. The injuries complained of were, prin- 
 cipally, I ft. The detention of the weftern polls 2dly. The delay 
 in compenfating for the negroes carried off at the clofe of the war 
 and 3dly, The fpoliations committed on our commerce. The reme- 
 dies propofed, were, principally, ift. The commercial regulations 
 of Mr. Madifon adly. The non-intercourfe propofhion of Mr. 
 Clarke 3dly. The fequeftration motion of Mr. Dayton 4thly. AH 
 embargo and 5thly, Military preparation. 
 
 3. Every plan of the legifiature was, however, fufpended, or ra- 
 ther annihilated, by the interpofition of the executive authority ; and 
 Mr. Jay, the chief Juftice of the United States, was taken from his 
 judicial ieat, to negociate with Great Britain, under the influece of
 
 6 FEATURES OF 
 
 the prevailing fentiment of the people, for the redrefs of our wrongs. 
 Query Are not his commiffion and the execution ot it, at variance? 
 Is any one of our wrongs actually redrefled ? Is not an atonement to 
 Great Britain, for the injuries which me pretends to have fuffered, a 
 preliminary ftipulation ? 
 
 4. The political dogma of Mr. Jay are well known ; his predi- 
 lection, in relation to France and Great Britain, has not been dif- 
 guifcd ; and even on the topic of American complaints, his reports, 
 while in the office of fccretary for foreign affairs, and his adjudications 
 while in the office of chief juitice, were not calculated to point him 
 out as the fingle citizen of America, fitted for the fervice in which 
 he was employed. Query Do not perfonal feelings too often dic- 
 tate and govern the public conduct of minifters ? But whatever may 
 have been his perfonal difqualifications, they are abforbed in the more 
 important confideration of the apparent violence committed by Mr. 
 Jay's appointment, on the eflential principles of the conftimtion. 
 That topic, however, has already been difcurTed, and we may pafs 
 to the manner of negociating the treaty in England, which was at 
 once obfcure and illufory. We heard of Mr. Jay's diplomatic ho- 
 nours ; of die royal and miniiterial courtefy which was ftiewn to him, 
 and of the convivial boards to which he was invited : but, no more ! 
 Mr. Jay, enveloped by a dangerous confidence in the intuitive facul- 
 ties of his own mind, or the inexhauftible fund of his diplomatic in- 
 formation, neither poflefled nor wifhed for external aid ; while the 
 Britifh negociator, befides his own acquirements, entered on the 
 points of negociation, fraught with all the auxiliary fagacity of his 
 brother miniUers, and with all the practical knowledge of the moft 
 enlightened merchants of a commercial nation. The refult corre- 
 Iponds with that inaufpicious Itate of things. Mr. Jay was driven 
 from the ground of an injured, to the ground of an agreffing, party ; 
 he made atonement for imaginary wrongs, before he was allowed 
 jufHce for real ones ; he converted the rcfeniments of the American 
 citizens (under the impreflions of which he was avowedly fent to 
 England) into amity and cuncwd ; and fcems to have been fo anxious 
 lo met a commercial chain about the neck of America, that he even 
 lorgot, or difregardtd, a principal item of her own produce, (cotton) 
 in order to make a k erping laci ifice to the infatiable appetite of his 
 maritime antagonifh But the idea of the treaty, given by Mr. Pitt 
 in anfwer to Mr. Fox, who, before he had feen, applauded it as 
 an aft of liberality and julHce towards America, was the firft autho- 
 j native alarm to our intercfts and our feelings. " When the treaty 
 is laid before the parliament (laid the miniiter) you will beft judge 
 whether any improper conceffion has been made to America !" 
 
 The treaty being fent here for ratification, the Prefident and 
 enate purfue the myrterious plan in which it was negociated. It 
 
 5 been intimated, that till die meeting of the fenate, the inftru- 
 
 ment was not communicated even to the moft confidential officers of 
 
 ie government : and the firft refolution taken by the fenate, was to 
 
 P the hps iipd wu-j gf us members agaioft every poffibility of giving
 
 MR. JAY's TREATY. 7 
 
 r receiving information. Every man, like Mr. Jay, was prefumed 
 to be infpired. In the courfe of the difcuflion, however, fome oc- 
 currences flafhed from beneath the veil of fecrecy ; and it is conjec- 
 tured that the whole treaty was, at one time, in jeopardy. But the 
 rhetoric of aminifler (not remarkable for the volubility of his tongue} 
 who was brought poft-hafte from the country ; the danger of expofing 
 to odium and difgrace the diftinguifhed American characters, who 
 would be affected by a total rejection of the treaty ; and the feeble, 
 but operative, vote of a member tranfported from the languor and 
 imbecility of a fick room, to decide in the fenate a great national 
 queftion, whofe merits he had not heard difcuffed ; triumphed over 
 principle, argument and decorum ! 
 
 6. But ftill the treaty remains unratified ; for, unlefs the Britifh 
 government mail affent to fufpend the obnoxious twelfth article, (ia 
 favour of which, however, many patriotic members declared their 
 readinefs to vote) the whole is deftroyed by the terms of the ratifi- 
 cation : and if the Britifli government lhall agree to add an article 
 allowing the fufpenfion, the whole muft return for the reconfidera- 
 tion of the fenate. But the forms of myftery are ftill preferred by 
 Our government ; and attempts to deceive the people have been 
 made abroad, upon a vain prefumption, that the treaty could remain 
 afecrct, till it became obligatory as a law. 
 
 For inftance, in Fenno's paper of the 25th of June, it is unequi- 
 vocally declared, " the treaty of amity, commerce and navigation, 
 was ratified yeflerday by the Senate of the United States ; and, even 
 while he corrects that miftake in the paper of the following day, he 
 commits an error or" a more extraordinary kind (particularly when we 
 confidcr that he is the confidential perfon, who printed the treaty 
 for the ufe of the fenate) by averting, that in the twelfth article, 
 " the United States are prohibited from exporting to Europe from the 
 faid ftates, fugar, coffee, cotton and cocoa, the produce of any of the 
 Weft India ijlands." The fact muft have been known to Mr. Fen no, 
 that the prohibition operates univerfally ; whether the prohibited ar- 
 ticles are the produce of the Weft India iflands, of the Eaft Indies, 
 of the United States, or of any other part of the world. The next 
 eflay to render the envelopements of the treaty ftill more opaque, ap- 
 peared in the American Daily Advertifer, of the 2yth of June. 
 The writer (who is faid to be a member of the Senate) likevviie re- 
 gards the ratification, in his introduction, as a perfect one ; and al- 
 ter giving a glofs to the general texture of the treaty, he afcribcs the 
 obnoxious principle of the twelfth article, to an error which, it appears, 
 has been inadvertently introduced. An error inadvertently introduced 
 into an inftrument, which was under the confideration of the chief 
 juftice of the United States, and the Britim miililler, f? a term of 
 eight months ! and introduced too, into a part of that very article, 
 which is made the fole foundation of the whole commercial fuperftruc- 
 ture ! ! Whenever the twelfth article ceafes, the treaty declares 
 every other article, except the ten firft articles, (hall alfo ceafe ! But 
 the author of that iketch proceeds one ftep further he fays, " that
 
 s FEATURES OF 
 
 every cauft of offence or coll'ifion towards the French, feems to hare 
 been ftudioufly avoided, in the progrefs of the negociation ;" for, 
 no article of the treaty clajbes in the fmallejl degree, with the obliga- 
 tions and engagements contracted with that gallant nation !' Let the 
 treaty fpeak for itfelf it is more to be hoped than expefted, that the 
 Toice of France mould not likewife be heard in oppofition to fo bold 
 n aflertion. 
 
 II. Nothing is fettled by the Treaty. 
 
 1 . The weftern pods are to be given up. 
 
 2. The northern boundary of the United States is to be amicably 
 
 fettled. 
 
 3. The river meant by St. Croix river in the treaty, is to be 
 
 fettled. 
 
 4. The payment for fpoliations is to be adjujled and made. 
 
 5. The ultimate regulation of the Weft India trade is to depend 
 on a negotiation to be made in the courfe of two years after the termi- 
 nation of the exifting war. 
 
 6. The queftion of neutral bottoms making neutral goods is to be 
 confiJercd at the fame time. 
 
 7. The articles that may be deemed contraband, are to be fettled 
 at the fame time. 
 
 8. The equalization of duties laid by the contracting parties on 
 one another, is to be hereafter treated of. 
 
 9. All the commercial articles depend on the exiftence of the 
 twelfth article, which may continue twelve years, if it is fo agreed 
 within two years after the expiration of the war ; but if it is not fo 
 agreed, it expires, and with it all the dependent parts of the treaty. 
 Query Does not the Senate's fufpenfion of the twelfth article bring 
 us to the fame ground ? 
 
 I o. The whole bufmefs of Mr. Jay's negociation is left open by 
 the twenty -eighth article, for alteration, amendment and addition, 
 by new articles, which, when agreed upon and ratified, Jhall become 
 a part of this treaty. 
 
 Query Does not the hiftory of treaties prove, that whenever 
 comrrriflioners have been appointed by the parties, to take all the fub- 
 jects of their difpute ad referendum, for the fake of getting rid of an 
 immediate pre/Ture, and patching up a peace, the matter terminates ia 
 treating, not in fettling differences ? 
 
 III. The Treaty contains a colourable, but no real, Reciprocity. 
 
 i. The fecond article provides for the furrender of the weftern 
 ports in June, 1796; but it ftip;ilates, that in the meantime, the 
 citizens of the United States (hall not fettle within the precincts and 
 jurifdiftion of thofe polls ; that the Britifh fettlers there mail hold 
 fend enjoy all their property of every kind, real and perfonal ; and 
 that, when the potts are furrendered, fuch ftttlers fliall have an
 
 MR. JAY's TREATY. 9 
 
 ither to remain Britim fubjects, or to become American citizens. 
 Query Were not the weftern ports, and all their precincts and ju- 
 rifdiction, the abfolute property of the United States by the treaty of 
 peace ? Query What equivalent is given for this ceffion of the terri- 
 tory of the United States to a foreign power ? Query How far do 
 the precincts and jurifdiction of the ports extend ? Query Dos not 
 the treaty give an implied afTent to major Campbell's claim, by adopt- 
 ing its language, as far as the falls of the Miami, and to the northern 
 claim upon the territories of New-York and Vermont ? 
 
 2. The third article ftipulates that the two contracting parties may 
 frequent the ports of either party -, on the eaftern banks of the Miffif- 
 fippi. Query What ports has Great Britain on the ealtern banks 
 of the MilEflippi ? 
 
 3. The third article likewife opens an amicable intercourfe on 
 the lakes ; but excludes us from their fea-ports, and the limits of the 
 Hudfon's bay company ; and excludes them from navigating our 
 Atlantic rivers, higher than the higheft port of entry in each. Query 
 What are the limits of the Hudfon's bay company ? Query What 
 equivalent do the United States obtain for the general freedom of 
 navigation, portage and paflage ? For it muft be remembered, that 
 the Britim rivers penetrate the heart of the country, but of thofe we 
 can take no advantage ; while Great Britain is in fact admitted to all 
 the advantages of which our Atkntic rivers are fufceptible. 
 
 4. The fixth and feventh articles provide for fatisfying every 
 demand which Great Britain has been able, at anv time, to make 
 againft the United States (the payment of the Britim debts due be- 
 fore the war, and the indemnification for veffels captured within our 
 territorial jurifdiction ) but the provifion made for the American 
 claims upon Great Britain, is not equally explicit or efficient in its 
 terms, nor is it co-extenfive with the object. Query Why is the 
 demand for the negroes, carried off by the Britim troops, fupprefTed, 
 waved, or abondoned ? The preamble to the treaty recites an inten- 
 tion 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 ftipulates, that the fubjecls of Great Britain 
 and the citizens of the United States, reflectively, who now hold 
 lands within the territories of either nation, mail hold the lands in, 
 the fame manner as natives do. Query What is the relative pro- 
 portion of lands fo held ? Query The effect to revive the claims 
 of Britifh fubjects, who, either as traitors or aliens, have forfeited 
 their property within the refpective ftates ? Query The operation 
 of fuch a compact on the internal policy of the union, combined with 
 the folemn recognition of a colony of Britim fubjects, profefling and 
 owing allegiance to the Britim crown, though fettled within the ac- 
 knowledged territory of the United States, by virtue of the fecond 
 article ? 
 
 6. The tenth article declares, that neither party fhall fequefler or 
 confifcate the debts or property in the funds, &c. belonging to the
 
 I0 FEATURES OF 
 
 citizens of the other, in cafe of a war, or of national differences. 
 Great Britain has fleets and armies ; America has none. Query- 
 Does not this, fupported by other provifions, which forbid our chang- 
 ing the commercial fituation of Great Britain, or impofmg higher 
 duties on her than cm other nations, deprive the United States of 
 their bed means of retaliation and coercion ? Query Is it not taking 
 from America her only weapon of defence ; but from Great Britain 
 the leall of two weapons which me poflefles ? What is the relative 
 proportion held by the citizens of the contracting nations, refpecliveiy, 
 in the funds, &c. of each other. 
 
 7. The twelfth article opens to our veflels, not exceeding feventy 
 tons, an intercourfe with the Britim Weft India iilands, during the 
 prefent war, and for two years after : but it prohibits our exporting 
 from the United States, melafles, fugar, cocoa, coffee, or cotton, 
 to any part of the world, whether thofe articles are brought from 
 Britifh, French, or Spanilh iflands, or even raifed (as cotton is) 
 within our own territory. Query Are veflels of feventy tons equal to 
 maintain the mod bench'cial part of our trade with the Weft Indies, the 
 tranfportation of lumber, Sec.? Query Do we not, in the time ofivar 
 (and the continuance of the privelege, for more than two years after 
 the war depends on the fituation in which his majefty of Great Britain 
 lhall then find himfelf in relation to the ifiands) enjoy a greater pri- 
 vilege, under the temporal y proclamations of the colonial governors, 
 than this article admits ? Query Have not the articles which we 
 are prohibited from exporting, formed, of late, a valuable part of 
 our trade ? Is not cocoa chiefly cultivated by the Spaniards ? Is not 
 cotton a daple of America ? Is our own own confumption equal to 
 our importation or growth of the prohibited articles ? Will not the 
 want of a vent for any furplus quantity, affect the other branches of 
 our commerce, diminifli the demand for fhip building, and injure 
 our agriculture ? If we are now thrown out of this branch of the car- 
 rying trade, (hall we be ever able to recover it ? and, in fhort, will 
 not the lofs be of lading detriment to all our maritime exertions ? 
 
 8. The thirteenth article admits us to trade in the Britim fettle- 
 men ts in the Ead Indies : but it excludes us from any mare in the 
 coading trade of that country ; it forbids our penetrating the interior 
 ot the country, or holding an intercourfe with the natives, unlefs 
 under a licenfe from the local Britim government ; and it compels 
 us to land all the articles that are there {hipped, in the United States. 
 Is not China the independent territory of the emperor . ? Is not 
 Canton an open port acceilible to all nations ? Do we not obtain 
 there, and at independent places in the Ead Indies with which we 
 have, at prefcnt, an uninterrupted communication, tea, porcelain, 
 nankeens, {ilk, &c. upon the principles of a free trade ? Does net 
 a very advantageous part of the trade in that quarter of the globe, 
 confid in the exchange of the products and manufactures of the Ead 
 Indies for thofe of China, and vice verfa? Do not our importations 
 of Ead India goods far exceed our confumption ? Is not the trade 
 vhieh we carry on with thofe goods in Europe, highly beneficial i
 
 MR. JAY's TREATY. 1 1 
 
 Are not fugar and coffee a part of our importations from India, and 
 does not the 1 2th article prohibit our re-exporting them ? Does our 
 trade to Europe, founded on the previous intercourfe with India, 
 depend on the Britifh licence ; and can it be maintained, under the 
 difadvantage cf a double voyage ? Are we not, every voyage, making 
 favourable impreflions on the natives of China ? Do we not partici- 
 pate, at prefent, in the carrying trade of that country ? Does not 
 our interelt in it increafe rapidly ! 
 
 9. The feveral articles that regulate the rights and priveleges of 
 die contracting parties within their respective territories, in cafe either 
 of them is engaged in a war, may ceafe in two years after the prefent 
 war is terminated, and cannot be protracted beyond twelve years. 
 Query Are not all thefe advantages, in effect, exclufively favoura- 
 ble to Great Britain, a principal maritime power of Europe ; often 
 engaged in wars ; and interefted to obtain for her mips, her colonies, 
 and herfelf, the ports and fupplies of this extenfive continent ? 
 
 Is it probable that, during the longeft poffible exigence of this 
 treaty (twelve years) America will be engaged in maritime wars, 
 will want Englifh ports as a refuge for men of war, or as a retreat 
 for prizes ? Or that it will, during that period, be of importance ta 
 her objects, to prevent her enemies from arming in Englifii ports, or 
 felling their prizes there ? 
 
 i o. The twenty-fecond article provides for fhips of war being hof- 
 pitably treated in the ports of the refpective contracting parties ; and 
 that officers (hall be treated with the refpeet that is due to the corn- 
 millions which they bear. Query Could not the principle of reci- 
 procity, as well as humanity, fugged to Mr. Jay, that fome provi^ 
 fion Jhould be made to protect our citizen failors from the fangs 
 of Britilh prefs-gangs in England ; and from the horrors of their 
 prifon-iliips in the Weft Indies ? Were the commilTions of his Bri- 
 tannic majefty of more regard than the liberties of American freemen ? 
 Or, was it unknown, that thouiands of our failors have been occafion- 
 aliy enflaved by the invprefs tyranny of the Britifh government ? Or, 
 that thoufands have loft their lives in noxious prifons, while their 
 veffels were carried into Britiih ports for " LEGAL ADJUDI- 
 CATION ?" 
 
 n. The fourteenth article provides fcr a perfect liberty of com- 
 merce and navigation, and for the accommodation of traders ; but 
 fubject always to the laws and ftatutes of the two countries refpectivcly : 
 Query Arc not the laws and fbitutes of England infinitely more 
 rigid, on the Subjects of this article, than the Uws and ihituies or 
 America ? 
 
 IV. The Treaty is an Injlrument cf Party, 
 
 I. The difcuilions, duiing the fefiion of Congrefs in which Mr. Juy's 
 miflion was projected, evinced the exigence of two panics, upon the 
 question, whether it was more our intereft to be Allied with the repub- 
 lic of France, than with the mooarchy of Great Briuio. Query-Docs
 
 I2 FEATURES OF 
 
 not the general complexion of the treaty decide the queftion in favour 
 of the alliance with Great Britain ? Query Whether that com- 
 plexion does not manifeiUy arife from the provifions, for admitting 
 a Britifh colony within our territory, in the neighbourhood of the 
 weftern pofts ; for admitting the whole Britifh nation, without an 
 equivalent, into a participation of our territory on the eaftern bank of 
 the Miffiffippi ; for naturalizing all the holders of lands ; for opening 
 a general intercourfe with their traders on the lakes, in the interior 
 of our country, rendering (as it is idly faid) the local advantages of 
 each party common to both ; for regulating the external trade of the 
 two nations with each other ; for admitting citizens to be punifhed as 
 pirates, who take commiflions, &c. from a belligerent power, adverfe 
 to either contrafling party ; for fettering the operations of our treaty 
 with France ; for furrendering criminals, &c. &c. &c. 
 
 2. The meafures propofed by one party to retaliate the injuries 
 offered by Great Britain to our territorial, commercial and politi- 
 cal rights, were oppofed by the other, precifely as the treaty oppofes 
 them. For inilance : 
 
 ( I . ) Mr. Madifon projects a regulation of our commerce with 
 Great Britain, by which the hoftile fpirit of that nation, might be 
 controuled on the footing of its intereft. The treaty legitimifes the 
 oppofition, which was given to the meafure in Congrefs, by declaring 
 in article fifteen, " that no other or higher duties fliall be paid by 
 the (hips or merchandife of the one party, in the ports of the other, 
 than fuch as are paid by the like vefl'els or merchandife of all other 
 nations ; nor (hall any other or higher duty be impofed in one coun- 
 try on the importation of any articles of the growth, produce, or 
 manufactures of the other, than are, or fliall be, payable on the im- 
 portation of the like articles of the growth, &c. of any foreign 
 country. 
 
 (2.) Mr. Clarke propofes to manifeft and enforce the public re- 
 fentment, by prohibiting all intercourfe between the two nations. 
 The treaty deitroys the very right to attempt thatfpecies of national 
 enunciation, by declaring in the fame article, that no prohibition 
 fliall be unpofed on the exportation or importation of any articles to 
 or from the territories of the two parties refpeftivcly, which mall not 
 tqually extend to all other nations." 
 
 (3.) But Mr. Dayton moves, and the houfe of reprefentatives fup- 
 
 t his motion, for the fequeftration of Britifh debts, &c. to enfure a 
 mg the Spoliations committed on our trade. The treaty 
 
 tthoat regarding the refpefl due to the commiffion which is borne 
 
 ir members of Congrefs) not only defpoils the government of this 
 
 want mftmraent to coerce a powerful, yet interefted adverfary 
 
 ntoadsof juRice but enters likewife into a commentary, which. 
 
 Cd C" 8 $ C C n t ft f nC f thC bnincheS f Our ^flatur* 
 Grenville, confidently with decorum, could not have exprerTed 
 
 o H ^ Ml VV 0r the fake of our national dignity, ought no 
 to have adopted The tenth article declares, that "neither the 
 ue frpm mdividuali of the one nation to individual*
 
 MR. JAY's TREATY. 13 
 
 nor marcs nor monies which they may have in the public funds, or 
 in the public or private banks, {hall ever, in any event of war or na- 
 tional difference, be fequettered or confifcated, /'/ being unjuji and im- 
 politic, that debts and engagements contracted and made by indivi- 
 duals having confidence in each other and in their refpective govern- 
 ments, mould ever be deflroyed or impaired by national authority 
 on account of national differences and difcontents." The terms are 
 very fimilar to thofe that gave Mr. Dayton offence in a fpeech pro- 
 nounced by Mr. Ames ; and certainly it will be deemed no mitiga- 
 tion, that the charge of committing " an unjiijl and impolitic act," 
 has been wantonly engrafted upon the moft folemn of all inrtruments, 
 a public treaty ! Query : Would Lord Grenville have confented 
 to brand his Royal Mailer with the title of Great Sea Robber, if Mr. 
 Jay's urbanity could have permitted him to borrow the epithet from 
 another member of Congrefs, in order to infert it, in the article that 
 relates to the Britifh fpoliations on our trade ? But perhaps, Mr. 
 Jay forgot, that the commentary operated as a reflection on the 
 government of the United States, and only meant it as a reproach to 
 Great Britain, for fequeftering during die late war, and retaining at 
 this moment, the property belonging to Maryland, lying in the bank 
 of England. It might, likewife, be intended as a fatire upon the 
 parliamentary fequeftration of French property in the famous " In- 
 tercourfe Act :" or, perhaps, Mr. Jay anticipated the revolution in 
 Holland, and defigned his commentary as a warning again it the 
 feizing of Dutch property, public and private ; which, however, has 
 fince taken place, in fpite of his folemn admonition. 
 
 3. The trials that had occurred relative to the equipment of French 
 privateers in our ports ; and the enliflment of our citizens in the 
 fervice of the republic, had produced fome embarrafiment in the courfe 
 of party purfuits. Thefe are obviated by the treaty. The Britifh 
 nation by which the emprefs of Ruflia has always been {applied with 
 naval officers, and whofe fleets and armies are always crowded with 
 volunteers from other nations, confents that her fubjects mail not 
 ferve againft us ; and ftipulates that our citizens fhall not ferve againlu 
 her. This contract is made with a power actually engnged in a 
 war ; and feldom more than feven years clear of one ; by a power 
 at peace, not liable, from her local pofition, and political conftitu- 
 tion, to be involved in war, and in ftrict alliance with the natiou 
 againft whonv the ftipulation will immediately operate. Captain 
 Barney and the other Americans, who have joined the arms of 
 France, are thus involved in the moft ferious dilemma. If they 
 expatriate themfelves, they may poffibly efcape the vengeance of tha 
 American government ; but will that fave them from the vengeance 
 of Great Britain, whofe conceflions on the doctrine of expatriation 
 are not quite fo liberal ? By the bye, it may here be feafonably 
 repeated, that while Mr. Jay was fo willing to prevent American 
 citizens from entering into the fervice ot France, he might furely 
 have taken fome pains to fccure them from being prejjed into the fer- 
 vice of England. He would have found, on enquiry, that the isv- 
 
 C
 
 , 4 FEATURES OF 
 
 fiances of the latter kind are infinitely more numerous than of the 
 former. But it is enough that the meafure will be introductory of a 
 law, favourable to the view of a party which reprobates every idea of 
 iiiiiftir.j; the French, and cultivates every means of conciliating the 
 
 BriMfli. 
 
 4. It has, likewife, been thought by feme politicians, that the 
 energies of our executive department require every aid that can be 
 giw. to them, in order more effectually to refill and controul the 
 popular branches of the government. Hence we find the treaty- 
 making power em'-loved in that fervice ; and Congrefs cannot exer- 
 cife a legifiative difcretion on the prohibited points (though it did 
 not participate in making the ceflion of its authority) without a decla- 
 ration of war againit Great Britain. George the third enjoys by the 
 treaty a more complete negative to bind us as dates, than he ever 
 claimed over us as colonies. 
 
 V. The treaty is a violation of the general principles of neutrality, and 
 is in coUiJion with the po/itiiie previous engagements -which fubfift 
 between America and France. 
 
 I. It is a general principle of the law of nations, that during the 
 evidence of a war, neutral powers (hall not, by favour or by treaty, fo 
 alter the iituation of one of the belligerent parties, as to enable him 
 more advantageoufly to profecute holtilities agaimt his adverfary. 
 If, likewife, a neutral power mail refufe 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. Thefe pofitions 
 riav be fupported by the authority of the mod edeemed writers on 
 the fubjcct ; but it will be fufficient in the prefent cafe, to cite the 
 conduct of Great Britain herfelf. Thus, it has been adjudged by 
 Lord MiinsfiJd, " that if a neutral (hip trades to a French colony, 
 with nil the privileges of a French mip, and is thus adopted and 
 rtitnralized, it mud be looked upon as a French (hip, liable to be 
 taken." See Judge Black/tone's nfwfs, I vol. p. 313, 314. Ac- 
 cording to the principle on which this judgment was given, the act of 
 hliiing the memorable orders of the 6th of November, 1793, an d 
 the confequent feizore of ?11 our vefTels, are attempted to be juftified. 
 Great Britain alledges (when it is injurious to France) that trading 
 vith the French iflands, on a footing not allowed before the war, is a 
 breach of neutrality, and caufe of confifcation : and, therefore, Great 
 Britain mull alfo admit, at lead America will not deny, that tradin<* 
 y.:th the Britilh iflands, on a footing not allowed before the war ; or, 
 in different wouls, altering and enlarging the commercial relations of 
 the two coui.ti ics, is equally a breach of our neutrality towards France. 
 \\ hen the fword is found to cut both ways, the party who ufes it, 
 has no right to complain. 
 
 2. That we have, on the one hand, evaded the overtures of a 
 treaty with France, and on the other hand, folicited a treaty from 
 Great Britain, are facts public and notorious. Let us enquire, then,
 
 MR. JAY's TREATY. 15 
 
 what Great Britain has gained on the occafion, to enable her more 
 advantageoufly to profecute her holtilities againit France. 
 
 ( I ) Great Britain has gained time. As nothing is fettled by the 
 treaty, (he has it in her power to turn all the chances of the war in 
 her favour ; and, in the interim, being relieved from the odium and 
 embarraffinent of adding America to her enemies, the current oi her 
 operations againit France is undivided, and will of courfe flow with 
 greater vigour and certainty. We have been for fo many years fatis- 
 iied with the proinifes of the treaty of peace, that Great Britain has caufe 
 to expert, at lealt, an equal period of credit, for the promifes of the 
 treaty of amity. If, indeed, it is true, that the reafons afligned by .Lord 
 Grenviile to Mr. Jay, for declining an immediate furrender of the 
 ports, were,j?y?, that the Britim traders might have time to arrange 
 their out-ftanding bufinefs ; a privilege that is exprefsly granted by the 
 treaty, and could not therefore, furnilh. a real encufe for delay ; and 
 fecondly, that the Britiih government might be able to afcertain what 
 would be the probable effect of the furrender, on the Indians ; a re- 
 fervation that demonf! rates an intention to be governed by events ; we 
 can very well account for the late extenfive mipment of artillery and 
 ammunition to Canada ; and may eafily calculate the importance of 
 gaining time, ia order to promote the American, as well as European, 
 objects of Great Britain. 
 
 (2.) Great Britain gains fupplies for her Weft India colonies ; and 
 thai for a period almoft limited to the continuance of the war, under 
 circumftances which incapacitate her from furniihing the colonial fup- 
 plies herfelf ; and, indeed, compel her to invite the aid of all na- 
 tions, in furniihing provifions for her own domeilic fupport. The 
 fupplies may be carried to the iilands either in American bottoms not 
 exceeding feventy tons, or in Britifk bottoms of any tonnage. 
 
 (3.) Great Britain gains an advantage over France, by prohibiting 
 the exportation offugar, iiTV. in confequence of which the colonies of 
 France muft, in a great meafure, remain unfupplied with provifions, 
 &c. as they can only in general pay for them in thofe articles, whofc 
 nfe is confined to the American conj'umption. It will be remembered, 
 that the produce of the French iflands has of late conftituted a great 
 part of our European remittances. If, therefore, that trade is cut 
 off, and at the fame time, befides employing our own final! craft of 
 fcvcnty tons, Great Britain is allowed, to any extent of tonnage, to be 
 oar Weft India faftor, it is obvious that our confumption of fugar, 
 coffee, &c. Sec. will be abundantly fupplied, without maintaining an 
 intercourfe with the French, or even with the Eaft Indies, to pro- 
 cure any of thofe .articles. Perhaps this method, though lefs bold, 
 will be more effectual to prevent our furniming the French iflands 
 with provifion, than declaring them to be in a ftate of blockade, and 
 feizing the veffels that attempt to vifit them. 
 
 (4.) // is another important gain to Great Baitain (which might, 
 likewife, have been adverted to under the feature of reciprocity) thai, 
 to any extent of tonnage, her veffels may carry on the Wejl India trade 
 for us, either to fupply our domeftic confum^ tion, or European en-
 
 T 6 FEATURES OF 
 
 gagementS) fubjecl to no other or higher duties than our own vejjels, 
 while our own veflels are reftrifted to a pitiful fize, and circumfcnbed 
 to a particular voyage. But whatever may be thought of the benefit 
 of acquiring for America even this fcanty participation in the Weil 
 India trade, no one (after the rejection of the twelfth article ) will 
 deny that the whole meafure changes the relative fituation of the 
 two countries, avowedly in favour of Great Britain, and operatively 
 injurious to France ; and every fuch change is derogatory to our 
 boaited neutral character. 
 
 (r.) fhe admijjion of Great Britain to all the commercial advanta- 
 ges of the nwjl favoured nation, and the rejlraints impofed upon our le- 
 gi/lative independence, as ftated in the party feature of the treaty, are 
 proofs of predilection and partiality in the American government, 
 which cannot fail to improve the refources of Great Britain, and to 
 impair the intcrefts, as well as the attachments, of France. 
 
 ( 6. ) The ajfent to the f azure of all provifion-Jhips, and that, in effect, 
 upon any pretext, at a period when Great Britain is diftrefled for 
 provifions, as well as France; and when the fyitem of fubduing by 
 famine has been adopted by the former againft the latter nation, is 
 clearly changing our pofition, as an independent republic, in a man- 
 ner detrimental to our original ally. That our merchants will be 
 paid a reafonable profit for their cargoes, &c. may render the mea- 
 fure more palatable to us ; even under the lofs of the return cargo, 
 the derangement of the voyage, and the deftruction of the fpirit of 
 commercial enterprife ; but that confideration cannot render it lefs 
 offenfive to France. It may properly be here remarked, that Swe- 
 den and Denmark have obtained, by a fpirited refinance, an actual 
 indemnification for the feizures which have heretofore taken place, 
 and an exemption from all fuch outrages in future ; while America 
 has only nut thofe which are paft, in a train of negotiation, and has 
 given a legitimate effect to thofe which are to come. The order, 
 which, the Englifh gazettes fay, has recently been iflued for fizing 
 American provifion-fhips, on their paflage to France, ought not, 
 therefore, to be complained of, as it is merely an exercife, by an- 
 ticipation, of the right granted by the treaty. 
 
 (7.) Great Britain has gained the right of preventing our Citizens 
 from being volunteers in the armies or Jbips of France! This is not 
 {imply the grant of a new right to Great Britain, but is, at the fame 
 time, a politive 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 fake of honour, reward, or inftruction, ferving in a foreign 
 
 navy, or army : Colonel OJivald r-nd many others have done it : 
 
 Captain Barney and many others are doing it. But a proclamation 
 muft iiTue to rccal all fuch volunteers, and punifhrnent muft follow 
 difobediencc, if the twenty-fidt article of the treaty is to be eftedu- 
 ated, as the fupreme law of the land. 
 
 (8.) Great Britain has gained a right to treat and punifh as pirates, 
 any of our citizens who fhall accept, even while they are in France, any
 
 MR. JAY's TREATY. 17 
 
 commiflton to arm a privateer, or letter of marque. It is true, that 
 a fimilar provifion is contained in other treaties ; but we are now 
 only confidering the alterations which are made by the treaty under 
 difcuflion, in favour of Great Britain, and injurious to France. 
 How far there exifts a power to define piracy, by treaty, will be 
 remarked in delineating another feature of Mr. Jay's diplomatic off- 
 fpring. 
 
 (9.) Great Britain has doubly gained) by obtaining in our ports, an 
 afylum for her folps of war, privateers, prizes, &c. Jlipulatlng for an 
 exclujion of thofe of her enemies, other (It is admitted) than France. 
 The twenty-fourth and twenty-fifth articles of the projected treaty, 
 are nearly copied from the fubfifting treaty with France. It would 
 be curious, however, to reflect on the very different motives, which 
 muit juftify (if the idea of justification could, in the late inftance, be 
 at all admiffible) thefe analogous grants. The conceffion to France 
 was made when we were at <war, and fie <was not; it was made upon 
 a certainty of reciprocal advantage; and it was made as a price for 
 obtaining the aid of that gallant nation, in the eftablifhment of our 
 independence. The conceffion is made to Great Britain whenfte is 
 at iv ar, and we are not; without any rational profpcS of deriving 
 any reciprocal advantage from It ; and under fuch circumftances of 
 injury and infult, as might have admoniflied us to referve it as the 
 price for obtaining aid from other nations, in rejifting her hojlllities, in- 
 ftead of paying it for fmiles without affection, and promifes without 
 fmcerity. When we were making treaties with Holland, Pruffia, 
 fcc. did we not exprefsly exclude them from fuch important, and, 
 as we have already ferioufly experienced, fuch dangerous privileges ? 
 
 But it will be afked, perhaps what mighty benefit has Great Bri- 
 tain gained, in this cafe, at the expence of France, llnce the prior 
 Gmilar privileges of France are exclufive ? Anfwer: That as the 
 privilege of Great Britain will operate againft every other nation, it 
 will immediately affeft the French republic's alliance, offenfive and 
 defenfive, with the United Provinces, which preceded the ratifica- 
 tion, at leaft, of the treaty : and it may, eventually, have the fame 
 pernicious influence in relation to Pruffia, Spain and Portugal, whofe 
 difpofition to change fides, in the prefent war, has been unequivo- 
 cally expreffed. Thus, though Holland and Pruffia made treaties 
 with us, long before Great Britain would admit the idea of a nego- 
 ciation, and though Spain and Portugal are the only cuftomers, who 
 furnifh us with the ready money balance, for the very purpofe of 
 paying our annual accumulation of debt to Britain, the harbours of 
 America are open to their ve(Tels as prizes, but fliut to them as 
 friends : They may be brought hither and fold by their enemies : 
 but if they have captured their enemy, all, but common neceffaries, 
 mall be denied to them ! The habits, bias, and opinions of a people, 
 ought not to be altogether difregarded in making a treaty. What 
 honeft, feeling American, could patiently fee an Englifhman, our 
 fun/Line ally, bringing into our ports, as prizes, the mips of Holland, 
 our ally in the times that tried men's fouls; a republic, indifTolubly
 
 ,8 FEATURES OF 
 
 united with France, that earlieft, lateft, beft of friends ? What 
 honefr, feeling American, even fubmitting to a fcene fb painful, 
 would willingly affift in expelling from our ports the {hips of Holland, 
 which had merely retaliated, by the capture of their foe ? 
 
 s. But it is time to advert to the cafes of coHi/ton between the two 
 treaties ; and thefe are of fuch a nature as to produce a violation of 
 the fpirit, though not a pofitive violation of the words, of the pre- 
 vious engagements, that fubfilt between France and America They 
 are caufes of offence, and clajb in the highejl degree. 
 
 (i.) By the ninth article of the treaty of alliance with France, <we 
 guarantee the pojf.JJions of that nation in America. It is true, that our 
 fituation is fuch as to incapacitate, and of courfe to excufe us, from 
 a direfi fulfilment of this guarantee ; but it is equally true, that we 
 Tiolate our faith, whenever we do any thing that will, either directly 
 or indiredly, endanger thofe pofleflions. Query Whether facilitat- 
 ing the means of fupplying the Britim forces in the Weft Indies, will 
 rot be the efFedt of the arrangements relative to the trade with the 
 Britifh iflands ? Query Whether retraining our intercourfe with 
 the French iflands, as a conference of the treaty already predicated, 
 will not expofe them to want, and of courfe to the neceffity of yield- 
 ing to their enemies ? Does not every fuch advantage given to Great 
 Britain, clajb with our engagements to France ? 
 
 (2.) By our treaty with France, and indeed with feveral other 
 nations, it is exprefsly Jlipulated, that free veffels mail make free goods. 
 At the time of entering into the (Hpulation, and even at this moment, 
 the maritime ftrength of France (always fuperior to that of Denmark 
 and Sweden, which has, under fimilar circumftances, been fuccefs- 
 ful) could command the refpecl of the world for her engagments. 
 It is true, America neither was, nor is, in a fituation to produce the 
 fame complaifance ; and, on the ground of that weaknefs, France 
 has, hitherto, candidly difpenfcd with a ftrift performance of the 
 treaty. But though America cannot enforce, (he ought not to aban- 
 don her engagements : fhe may fubmit to imperious neceffity, butj&f 
 tannot voluntarily bring into quejlion the right of protecting, as a neutral 
 power, the property of France ; while France is not only ready and 
 able to afford her property the ftipulated protection, but, in confor- 
 mity to the ftipulation, actually allows the property of Great Britain 
 to pafs free, under the fanclion of the American flag. When, there- 
 fore, the treaty with Great Britain agrees, that within two years after 
 the termination of the exifting war, it Jhall be difcujjed " whether in 
 any, and what cafes, neutral veflels mall protecl: enemies' property" 
 does it not clajh ivith our previous promife to France, that free Jbips 
 Jhall mate free goods? And when the treaty with Great Britain, in 
 formal and explicit terms, further agrees, " that in all cafes where 
 veflels fhall be captured or detained, on fufpicion of having on board 
 enemies' property, &c. the part which belongs to the enemy Jhall be 
 made prize" Is not this an evident coll'ifion tvith our previous agree- 
 ment with France, and with the fecurity which Britim property enjoys 
 in confecjuence of it ? While France adheres to her treaty, by per.
 
 MR. JAY's TREATY. z 9 
 
 mitting Briti/h goods to be prote&ed by American bottoms, is it ho- 
 neft, honourable, or confident, on our part, to enter voluntarily 'mtt 
 a compact <wlth the enemies of France, tor permitting them to take 
 French goods out of our veflels ? We may not be able to prevent, but 
 ought we to agree to the proceeding ? Let the quefHon be repeated 
 Does not fuch an exprefs agreement clam with our exprefs, 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, confiftently 'with the latter, fi'pply Great Sri- 
 tain ; but, confiftently with the former, we cannot fupply France. 
 
 Thus, our treaty with France (and, indeed, every treaty which we 
 have) exprefsly declares, that, " in general, all provifions which 
 ferve for the nourimment of mankind and fuftenance of life ; further- 
 more, all kinds of cotton, hemp, flax, tar, pitch, ropes, cables, fail 
 cloths, anchors and any part of anchors, alfo mips, marts, planks, 
 boards and beams of what trees foever ; and all other things proper 
 either for building, or repairing mips, and all other goods what- 
 ever, which have not been worked into the form of any instrument 
 for war, by land or by fea, Jhall not be reputed contraband." 
 
 The treaty with Great Britain exprefsly declares, " that timber 
 for (hip building, tar or rozin, copper in meets, fails, hemp and 
 cordage, and generally whatever may ferve direclly to the equip- 
 ment of veflels, unwrought iron, and fir planks only excepted, Jhall 
 be obje9s of confifcation, whenever they are attempted to be Carried te 
 an enemy." 
 
 Whether this ftipulaticn can be confidered as founded on a prin- 
 ciple of reciprocity, fince the articles declared to be contraband arc 
 fmong our principal exports, but among the principal imports of Great 
 Britain, might have been adverted to, in tracing a former feature of 
 the treaty ; but let it be now candidly anfwered, whether it is not 
 in collifion with our previous engagements with France ? The right 
 to make fuch a ftipulation, is not, at prefent, controverted ; but 
 only the afTertion, that exercijing the right does not ciajb in any degree 
 with the terms and fpirit of the French treaty. France exempts 
 thofe important materials of our commerce from confifcation, in fa- 
 vour of all the world : Great Britain condemns them to confiication, 
 whenever they (hall be carried to her enemies ; and the compact is 
 made, while France is one of her enemies ! ! 
 
 VI. The Treaty with Great Britain is calculated to injure the United 
 States, in the friend/hip and favour of other foreign 
 
 I. That the friendship and favour of France will be affecled by 
 the formation of fo heterogeneous an alliance with her moft implacable 
 enemy, cannot be doubted, if we reafon upon any fcale applicable 
 to the policy of nations, or the paflions of man. From that republic, 
 therefore, if not an explicit renunciation of all connection with the 
 Uaited States, we may at lead expe<5t an alteration of conduS : and?,
 
 20 FEATURES OF 
 
 finding the fuccefs which has flowed from the hoftile treatment that 
 Great Britain has mown towards us, me may be, at length, tempted to 
 endeavour at extorting from fear, what flie has not been able to obtain 
 from afecllon. She will, probably, declare Great Britain in a liate 
 of blockade, for the purpofe of feizing our veflels in Europe ; and 
 me may inftitute courts for " legal adjudication," in order to confif- 
 cate our veflels in the Weft Indies. Great Britain will then chuckle 
 at the feme. No one can doubt that our embarrafments will gratify, 
 not only the avowed objects, but the latent refentments, of that 
 nation. Even if me could obliterate the memory of our revolution, 
 (he cannot, with pleafure, behold the fuccefsful experiment of a 
 republican fyftem of government ; nor the rapid advances of a com- 
 mercial competitor. The moment fhe has produced a quarrel be- 
 tween America and France, flie may exclaim, " Delenda ejl Car- 
 thago'." America is again a colony! How different were the inte- 
 refts and difpofitions of our tried friend ! That our government fliould 
 preferve its purity and independence that our commerce and agri- 
 culture mould attain their zenith were views once congenial with 
 the policy and affections of the French nation : Heart, head, and 
 hand, me would have joined in promoting them, againft the arts 
 and enmities of all the reft of the world ! What a change, then, have 
 we made ! 
 
 " Look on this picture, and on that : 
 
 " The counterfeit prefentmcnt of two Sillies! 
 
 " Who would on this fair mouatain leave to feed, 
 
 " To batten on that moor !" 
 
 2. During the war, we, likewife, formed a feafonable and fen-ice- 
 able treaty with the United Netherlands ; and, fliortly after the war, 
 treaties were eftablifhed with Sweden, Pruffia, &c. But in order to 
 avoid even the appearance of clajh'mg or colliftnn with the French treaty, 
 the powers, thus early in courting our alliance, were not allowed 
 thofe privileges of afylum for themfelves, and of excluding their 
 enemies from our ports, which are conceded in the projected treaty 
 to Great Britain. Have thofe nations no caufe for jealoufy and 
 reproach ? What principle of policy, or juftice, can vindicate the 
 partiality and predilection, that has been thus mown ? 
 
 3. But the projected treaty (after an affected recognition of pre- 
 exifting public treaties) declares, that while Great Britain and 
 America continue in amity, no future treaty mail be made, inconfift- 
 ent with the articles, that grant the high and dangerous privileges, 
 that have been mentioned. Every nation of the earth (except 
 France) is thus facrificed to the pride and intereft of Great Britain. 
 And with what motive, or upon what consideration, is the facrifice 
 made ? It has been ftated in a former, and will be more fully fhewn 
 in a future, feature of Mr. Jay's treaty, that the United States do 
 
 enjoy any equivalent for this, nor for any other, conceffion 
 
 ich is made to Great Britain : But the mifchief does not end 
 
 the folly of a lop-fidcd bargain. By granting thefe exclufive 
 
 privileges to Great Britain, by declaring that no commercial favour
 
 MR. JAY's TREATY. 21 
 
 mall be conferred on other nations, without her participating in them, 
 we have thrown away the furelt means of purchafing, on any emer- 
 gency, the good will and good offices of any other power : We 
 cannot even improve the terms of our old treaty with France. For 
 all the advantages of trade that Spain, Portugal, Holland, &c. 
 might, and probably would, upon a liberal footing of reciprocity, 
 have given v.s, what have we now left, to offer as the bafis of ne- 
 gociation and compact ? 
 
 4. The alteration which the treaty makes in the relative fituation 
 of feveral nations with America, and the conduft, that is likely to 
 be purfued by thofe nations, in order to counteract its effect, merit 
 ferious reflection. Will Spain fee without fome folicitude, the par- 
 tition which we have made with Great Britain, of our territory on 
 the eaftern e ink of the Miffiffipi ? How would our projected treaty 
 work, if France mould recover Pondicherry, Sec. in the Eaft Indies ; 
 fhould fubdue and retain the Weft India iflands ; mould ftipulate 
 with Spain for the ceffion of Louifiana ; and mould conquer Nova 
 Scotia ? The curious cordon with which we have allowed Great 
 Britain to circumvent us (and of which more will be faid hereafter) 
 being thus broken, how are we to calculate the confequences ? 
 
 5. Confidering the Indians as a foreign nation, is not the treaty 
 calculated to exalt the chara&er of Great Britain, and to depreciate 
 the character of America, throughout the favage world ? What right 
 has Great Britain to negociate for Indians, within the limits of our 
 jurifdiction ? Suppofe the exifting weftern pofts furrendered, may 
 not Great Britain eftablifh other pofts in a contiguous or more ad- 
 vantageous ftation ? Is me not left at liberty to purfue the fur trade 
 in our territory' as well as her own ? Will not her enterprize in traffic, 
 fuperior capital and experience, enable her to monopolize that trade ? 
 And will me not, in future, have the fame motives, and the fame 
 means, to foment Indian hostilities, that have hitherto been indulged 
 and employed, at the expenfe of fo much American blood and trea- 
 fure ? 
 
 VII. The Treaty with Great Britain is impolitic ana pernictmiSy in re- 
 fpet to the domeftic interefls and happinefs of the United States. 
 
 I. If it is true, and incontrovertibly it is true, that the intereft and 
 happinefs of America, confift (as our patriotic prefident, 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 fquabbles 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 juftice to, and in receiving it 
 ' from, every power we are connected with ;" it is is likewife mani- 
 feft, that all the wifdom and energy of thofe who administer ouv 
 government, fhould be conftantly and feduloufly employed to prelerve, 
 or to attain, for the United States, that enviable rank among na- 
 tions. To refrain from forming hnjiy and unequal alliances ; to le-t
 
 1 2 FEATURES OF 
 
 commerce flow in its own natural channels ; to afford every man, 
 whether alien or citizen, a remedy for every wrong ; and to refill, 
 on the firft appearance, every violation of our national rights and 
 independence, are the means belt adapted to the end which we con- 
 template. It maybe objected, that we are already involved in fome alli- 
 ances, that have had a tendencyrather to defiroyour public tranquillity, 
 than to promote our public interest. But a difference of circumitan- 
 ces will require and juftify a difference of conduct. For inftance it 
 was nccefl'ary and politic, in the flate of our affairs at the commence- 
 ment of the revolution, to pay a premium for the fiiendfnip and alli- 
 ance of France : we could not have infured fuccefs without the co- 
 operation of that nation : and as the price that we paid for it was not 
 greater than the benefit that we derived from it, we cannot now, with 
 jufticc, cavil at our bargain. But was the inducement^ form an al- 
 liance with Great Britain, of a nature equally momentous ? Is the 
 advantage flowing from the fucrifices that are made, equally compen- 
 fatory ? Why mould we, at this aufpicious feafon of our affairs, ven- 
 ture to undermine the fundamental maxim of our domeftic happinefs, 
 by wilfully obtruding on the great world of politics, cr wantonly involv- 
 ing oiirfefoes in the political intrigues anil the fquabbles of Europen na- 
 tions ? Suppofe (as it is often alleged and fometimes proved) that 
 our treaty with France is productive of inconveniences ; will it hap- 
 pen in the political, any more than in the phyfical or moral world, 
 that by multiplying the fources of evil, we (hall get rid of the evil it- 
 felf ? If, according to the quondam opinion of the friends of a Britim 
 alliance, our commerce has been retrained in its operations ; or if 
 our government has been menaced in its peace and (lability, by a 
 practical developement of the terms of our treaty with France, mall 
 we better our fituation, becaufe we make another treaty upon the fame 
 terms with Great Britain ; and furnifh two nations, inltead of one, 
 vith an opportunity to perplex and diftrefs us in purfuing our natural 
 and laudable policy the policy of exchanging commodities, and living 
 in p t ace and amity with all the inhabitants of the earth ; doing jujiice to, 
 and in receiving itfrcm, every power we are connected with ! 
 
 2. But even if the queftion was at large, and we were now under 
 a ncrtjjiiy of deciding, for the firit time, whether we would be allied 
 to the monarchy of Great Britain, or to the republic of France, how 
 would a rational ertimate of the interejls and happinefs of the United 
 States (the true and only touch-itone for folving, in the mind of an Ame- 
 rican, fuch an enquiry) lead us to decide ? To thofe members of the 
 finale, who could regard the twelfth article of the treaty as a mark of 
 parental care and wifdom, ly which Great Britain was fondly dejirous 
 of retraining the excejes of our commercial ardour ; excejfes flat might 
 eventually and prematurely debilitate and dejlroy us ! To thofe member's 
 of the finate, who could, with filial gratitude, declare, that an alli- 
 ance with Great Britain was natural ; that an alliance with France 
 vai artifcial ; fmce, although we were partially indebted to France for 
 our independence, we were entirely indebted to Great Britain for our 
 To all who can cherim fuch ideas, or utter fuch language,
 
 MR. JAY's TREATY. * 3 
 
 thefe {trictures"will be ungracious and unprofitable : but they claim 3. 
 candid attention from the patriot, who remembers, that when the 
 parent fought to deftroy, tbz friend interpofed to fave ; and from the 
 jlatefman, who pofTefTes too much wifdom to be influenced by preju- 
 dice, and too much fortitude to be controuled by fear. 
 
 Are the intcrejls and happinefs of the United States involved in the 
 permanent eftablimment of a republican government ? Yes : Then 
 ihe ought rather to cultivate the friendfhip of a republic, actuated by 
 a fellow feeling, than the alliance of a monarchy impreffed with jea- 
 loufy and apprehenfion. Are the interejl and happinefs of the United 
 States connected with her territorial and political independence ? Yes : 
 Then flie ought rather to fortify herfelf by an alliance with a na- 
 tion, whofe territorial jurifdiction, and phyfical characteriftics, pre- 
 clude the poflibility of collifion ; than attach herfelf to a nation whofe 
 language, manners and habits, facility te the execution of every at- 
 tempt to encroach ; and whofe territorial pofleffions are in an irritat- 
 ing and dangerous contact with our own. Are the interejl and hap- 
 pinefs of America to be promoted by an active employment of the vafl 
 ftore of materials of the Jirft necejjlty , which nature has bellowed on her ; 
 by the extenfion of her commerce ; and by die freedom of her navi- 
 gation ? Yes : Then {he ought rather to court the countenance and 
 protection of a nation, whofe occafions of envy are comparatively 
 few ; whofe temptations are to fofter, not to counteract, our 
 fchemes of commercial opulence and enterprife ; and whole impe- 
 rial glory and exiftence do not depend upon a claim of univerfal ma- 
 ritime fuperiority ; rather than confent to balk beneath the baneful 
 made of an alliance with a nation, whofe very exigence is, proba- 
 bly, the tremendous ftake in oppofition to our profperity : and whofe 
 embraces, like the embraces of the tyrant's image, may be rendered 
 the molt effectual instruments of torture and deftruction. Are the 
 Inter eft end hvbpinffs of the United States dependant on the cordiality 
 of their union, and the permanency of their government ? And 
 again -Do that cordiality and that permanency, depend upon the 
 confidence and mutual good understanding, -which fubfift betwecq 
 the people who formed the government, and the officers whom the 
 people have appointed to adminifter it ? Yes : Then it would be 
 the part of duty, as well as policy, in thofe officers to follow the una- 
 nimous fentiment of the people, by preferring a liberal and faithful alliance 
 with Fiance, to a contained and hypocritical alliance with Great 
 Britain. 
 
 3. The firft ftriking effect of the treaty, to endanger the inter rjls, 
 and di/lurb tie happinefs of the United States, may be detected by a 
 geographical fketch of the cordon, or line of circumvallation, <with 
 'which it enables Great Britain to fetter an:! endofc us. The proximity 
 of Canada and the weitern ports, has heretofore been a caufe of g;x-;-.t 
 uneafmcfs ; but that is a trifling fource of vexation, compared wi h 
 what we {hall have in future to encounter. Suppofe ten thoufand radii 
 were drawn diverging from the centre of the United States ; not one 
 of them could efcape the conventional circle of British territory
 
 H - FEATURES Of 
 
 jurifdiction and occupancy. Has an American oecafion to travel to 
 the eaft cr the north ? The barriers of Nova Scotia and Canada pre- 
 fent thcmfclves. Is it his \vi!h to penetrate the great wefrern wilder- 
 ne f s ? . pojJs will intercept his progrefs, even if 
 
 he ihdl be allowed peaceably to pafs the Briti/b colony within the pre- 
 ( . -.d i urikli .irion of Detroit. Does bufinefs require him to croft, 
 
 or ilo^L do'v-ii, the Ivliffiilip-i ? He may evade the vigilance of the 
 Spaniard, but he will I'nd the eaftern bank of the river monopolized 
 by Briiiih traders, and probably protected by Britifh. gun-boats. He 
 is in hopes, however, to avoid ail difficulty by a paflage on the 
 s ! our Atlantic harbours are crowded with prizes to 
 Britilh privateers, and our fea coait is lined with Britifh cruifers ! 
 Yet, let us for a moment imagine, that this ill fated traveller has 
 furn.ounted his dome/I: c obftacles, whither can he fly, to be emanci- 
 pated from the fcnl^n jurifdiction of Great Britain ? In the Weft 
 Indies, his cock boat is meafured and fleered, according to the fcale 
 ?.nd courfe prefcribed by the treaty. In the Eaft Indies he can hardly 
 exchange a commodity, or make a iingle acquaintance, without the 
 Britifh licenfe. In Europe, if, during a Britifh war, he carries 
 goods belonging to an enemy of Great Britain, they will be feized 
 as prize ; if he takes (hip-timber, tar, rozin, &c. they are liable to 
 be confiscated as contraband ; and if his cargo confifts of provifions, 
 the Britifli may take it, by treaty, at their otvn market price ! 
 
 One idea more about the boundary of the United States. Before 
 the revolution, Great Britain had projected that general arrangement 
 and divifion of her colonial pofTefHons in America, which (he has 
 (ince, upon a fmallcr fcale, carried into execution with refpecl to Ca- 
 nada. The territory then intended to be allotted to the government 
 of the Canadas, was extended by a line running along the northern 
 boundaries cf the eaflern colonies, along the weftern boundary of 
 Pennfylvania, and along the courfes of the Ohio, into the Miffifiippi. 
 Since we are left at a lofs for a pofitive definition of the precinds and 
 jurifdiiiion of the iu?Jlern pojls, as ceded by the treaty to the fettlers un- 
 der Briil/b titles, may we not conjecture, that Great Britain contem- 
 plates the tcrriu rial extent of her original project ? Does not major 
 Campbell's unexpected pretenflon, and the conftant claim of the In- 
 dians, at the inftigation of the Britl/J?, to ellabliih the Ohio as a boun- 
 dary between them and the United Stales, give forae countenance to 
 fuch a conjecture ? 
 
 4. But (hould an American, not Simulated by the defire of tra- 
 velling into foreign countries, be content to profecute the objects of 
 his honetr. induftry within the Britifli territorial circle, bounding and 
 conducting his own home, will his condition be much better than the 
 condition of his itinerant fellow citizen ? What with the eftablifti- 
 ment of Britifh colonies and Britifh ware-houfes ; the naturalization 
 of Britifh land-holders ; and, in fhort, the unqualified admijjion of 
 Enghfhmen, owing allegiance to the Brhiih crown, throughout our 
 lakes, rivers and territory, while we are excluded from their fea-ports, 
 company-lands, Sec. &c. an Ameiican will hardlv be able to find ei-
 
 MR. JAY's TREATY. 25 
 
 bow-room for himfelf and family. Their pecuniary capital being 
 larger; their means being eafier ; their .experience being greater, 
 they muft, inevitably, under fiich circumftances, become our mer- 
 chants, manufacturers, farmers, &c. &c. They will import for us, 
 in their vejjels, all the producls and fabrics of Europe, Afia. and Africa 
 They will export for us, in their we/els, every article that our foil 
 can furnifh ; our merchants will dwindle into clerks ; cur huiband- 
 men will degenerate into the condition of the feudal villienage ; and 
 thus, in a fhort courfe of years, America 'will probably exhibit the 
 ajlonijbing fpeclach of a country p/)jfcj/ed,cukivaled,and enjoyed by aliens! 
 The ancient inhabitants of Great Britain, in a fimilar manner, invited 
 thofe Saxons to their ifland as friends and allies y v/ho foon after- 
 wards became their conquerors and mafters. 
 
 5. In fuch a fhite of things, the interejl and happinefs of the United 
 States muft languiih and expire ! At firrt the American rnind will be 
 corroded, by contrafting the elevation of the gueft with the depreffion 
 of the hoft. A ftmggle will probably enfue ; but the influence of 
 wealth, and the patronage of extenfive commercial and manufadtural 
 inftitutions, &c. <w'ill even divide the Americans themfefaes ; and, by 
 dividing, capacitate the Britiih fettlers to rule them. Is this an idle 
 phantom a vifionary fuggeftion ? No ! For, is not a great part of 
 our trade, at this moment, monopcllfed by Britiih fubje&s, under 
 the majk of American citizenmip ? Has not the influence of Britiih 
 credits, and Britifli politics already formed a considerable party in 
 oar government, and among our merchants ? Difguife it as you will 
 let pride deny, and fhame fupprefs the fentiment ftill, it is too evi- 
 dent to every candid and difcerning obferver, that the only fubfifting 
 difference in the opinions and conduct of the citizens of America, 
 arifes from this fatal caufc. Why, at the moment of reprobating 
 felf-rreated focieties for civil purpofes, do we gladly fee the formation 
 of felf-c rented focieties for military purpofes ; the city cohorts and Prae- 
 torian bands? Why are our merchants, who fo anxioufly called 
 forth the voice of their fellow citizens in applauding the proclama- 
 tion of neutrality, fo circumfpect and fo torpid in giving their tefti- 
 mony about the treaty ? How o<mes it, that amidft the acclama- 
 tions of the 4th of July, the treaty is toajlcd in the little circle of 
 Englidi manufacturers, on the banks of the Pafiayik ; and at the 
 convivial tables of the Englifh emigrants on the plains of the Ge- 
 nefee ? How comes it that every man v/ho prefers France to Great 
 Britain republicanifm to monarchy, is denominated Antifederalijl> 
 Jacobin, Diforganifer, Mifcreant, &c. while men of another hu- 
 mour arrogantly and exclufively afTunr* the titles of FedfraK/tt, 
 Friends to order, &c. &c. ? But let every honeft American reflect 
 feriouily and feafonably, upon the means of promoting tltt interejl and 
 kappinefs of the United States, and he will difdain, as well as dread, 
 to augment, by the adventitious force of treaties, that paramount 
 intereft, which Great Britain has already infidioufly acquired in our 
 commerce, navigation, manvfadtres, territory, arrd government.
 
 2 6 FEATURES OF 
 
 6. Bcfides the injury eventually to be apprehended from thefe 
 eaufes, the featy is calculated to impair the interejl and happinefs of 
 the United Suites, by producing an immediate and violent concuffion 
 in the federal atmofphere. For, 
 
 It ranfacks the archives of our revolutionary transactions ; and re- 
 judges the ft'lemn judgments of our courts of juftice. 
 
 It condemns individuals to the payment of debts, from which they 
 had previoufly been difcharged by law. 
 
 It makes the government of the union refponfible for the contracts 
 of private citizens, and the defalcations of bankrupts. 
 
 It difregards the freedom of our commerce and navigation : and 
 it reitrains the ufe of our (tuple commodities. 
 
 It does not exact a juft indemnification for the detention of the 
 weftern ports. 
 
 It does not require the payment, (tipulated by the preceding treaty, 
 for the value of the negroes carried off at the clofe of the war. 
 
 It does not provide for the freedom and fafety of our feamcn, in 
 their intercourfe with the Britifh dominions. 
 
 Let any one of thefe propofitions be feparately analyfed, and fuffl- 
 cient caufe will be found to excite and juitify popular difiatisfaction ; 
 but view them combined, and the mind is mocked with an apprehen- 
 
 ifion, that the ratification of the treaty, may be the death-warrant of the 
 vnion ! 
 
 VIII. The Britijk Treaty and the Crmjlitution of the United States are 
 at ivar with each other. 
 
 1. Self-prefervation is the firft law of fociety, as well as of indivi- 
 duals : It is the radical principle of all political compacts. Nations 
 (fays VaiteY] are bound to guard thdr own prefervation, and to purfue 
 their oivn perfection. We have incefTant opportunities, indeed, of 
 obfjrving the operation of this univerfal rule ; in animals of injllna, 
 as well as in animals of reafon ; in the world of things, as well as in 
 the world of brings. 
 
 2. Self-prefervation, however, is a relative idea : it relates to 
 the nature of the animal ; to the constitution of the fociety. A man 
 may lofe his human character, without deftroying his vita! exigence , 
 and a government may be changed in its ejjcnce, without being fub- 
 verted in its forms. 
 
 3. So, likewife, without open aflkult or pofitive violence, the 
 fources of animal life may be poifoned, by the imperceptible conta- 
 minations of a luxurious habit : fo, without the aid of terror or force, 
 the legitimate foundations of government may be undermined, by the 
 infidious encroachment of the rulers, and by the fedative acquiefcence 
 of the people. Governments, indeed, have too generally proved to 
 be a kind of political chryfal's, palling, by progreflive tranfmutations, 
 From the grub of pure democracy, to the butterfly of. abfolutc mo- 
 Barchy.
 
 Mk. JAY's TREATY. 27 
 
 4. But it wil'. r/jt yet be denied in America, that as the people 
 have the folr right to conftitute their government, the rule of felf- 
 preftrvation requires that the government Should be maintained, in 
 practice as well as in theory, fuch as they have conjl'ihited it. To 
 render it, by any confmiction of the written articles of our focial 
 compact, other than a republican government, would be as fatal a fub- 
 verfion, as daring ufurpation, or military conqueSt, could atchieve. 
 For, what real difference does it make to a nation, whether its con- 
 ftitution is feized upon by an enterprizing individual, as in the Swe- 
 diSh revolution of 1770 ; or overthrown by a triumphant warrior, as 
 in the recent extinction of the PoliSh monarchy ; or voted cut of doors, 
 as in the diforganizing edicts of the long parliament of England ? 
 Thus, likewife, for one department of the government to aSfurne the 
 authority of another ; or, by constructive amplifications of its own 
 jurisdiction, fo to monopolize the attributes of government, as to 
 render the other departments ufelefs and inefficient, muft ever be 
 deemed an effectual fubverfion of any conftitution. The mode of 
 distributing and organizing the powers of government, as well as the 
 confideration of the nature and extent of the powers to be delegated, 
 eSTentially belongs to the people ; and in the body politic, as well as 
 in the body natural, whenever any particular member abforbs more 
 than its allotted portion of the aliment, that is deStined to vivify and 
 invigorate the whole, debility and difeafe will infallibly enfue. Af- 
 ter the emperors had ufurped the functions, privileges and powers of 
 the fenate, and of the popular magistrates of Rome, they preferved 
 the formalities of the commonwealth, but they trampled on the liber- 
 ties of the people. Though the parliaments of France had long been 
 deprived of every deliberative faculty, as the representatives of the 
 people, they were fummoned to the laSt, as the ministerial officers of 
 the monarch, for the purpofe of registering his edicts. 
 
 5. The government of the United States, being then theoretically 
 a republican government, and with great propriety denominated a go- 
 vernment of departments, let us proceed to examine how far the prin- 
 ciples of filf-prefervation, and the duty of purfuing the perfeciicn of 
 our political fyftem, are involved in the ratification of the projected 
 treaty with Great Britain. 
 
 The fecond fection of the fccond article of the conftitution fays, 
 that, " The Prefident Shall have power, by and with the advice and 
 confent of the fenate, to make treaties, provided two-thirds of the Se- 
 nators prefent concur." 
 
 To the exercife of this power no immediate qualification, or 
 reftriction, is attached : but iiuit we therefore fuppofe that the jurif- 
 diction of the Prefident and fenate, like the jurifdiction afcribcd to 
 the Britifh parliament, is omnipotent ? To place the authority cf our 
 Prefident and fenate on the fame footing with the prerogative of the 
 king of Great Britain, will not be commenfurate with the objects to 
 which the treaty extends. It muSt be remembered, that the treaty 
 of peace, by which the rights of fovereignty and foil were ceded by 
 the king of Great Britaifl t the United States, was negocistttd
 
 2 g FEATURES OF 
 
 and ratified under the pofitive fanction of an ait of prliament : And 
 it is exprcfsly Hated in l r atiel, th;it the king of Great Britain cannot, 
 by treaty, confer the rights of citizenfhip on an alien. B. i.e. 19. 
 f. 214. Now, Mr. Jay's treaty does both thefe things (as will be 
 hereafter demonstrated) without the intervention of the legislative au- 
 tiioiity of the union. 
 
 6. The confcquence of admitting this unqualified c'aim to omni- 
 potence, in tranfacting the bufmefs of the nation, would be fo hoflile 
 to the principle and prefervation of our government, that it is an 
 ir.difpenfablc duty (oljta principiis) to controvert and refill it. 
 Whenever the Prefident and two-thirds of the Senate (hall be defi- 
 rous to counteract the conduct of the houfe of reprefentatives ; 
 
 X whenever they may wifh to enforce a particular point of legislation ; 
 or whenever they (hall be difpofed to circumfcribe the power of a 
 fucceeding Congrefs ; a treaty with a foreign nation, nay, a talk with 
 a favage tribe, affords the ready and effectual inftrument for acconi- 
 plifhing their views ; fince the treaty or the talk will conftitute the 
 lupreme law of the land. That fuch things may happen, let the hif- 
 tory of Mr. Jay's million and negociation teftify. 
 
 7. If the extraordinary treaty-making power is paramount to the 
 ordinary legiflative power fupercedes its exercife and embraces all 
 its objects ; let us endeavour to trace whither the propofition will 
 carry us. 
 
 The fifth article of the coniKtution veils a power in two-thirds of 
 both houfes of Congrefs, to propofe amendments to the conjtitution. 
 
 Let us fuppofe that a defect in our judiciary, or in any other depart- 
 ment, operated injurioufly to a foreign nation, could the Senate, 
 and Prelident, uniiing with that foreign ration, and excluding the 
 houfe of reprefentatives frt-pofc an amendment upon the fuljccl ? If 
 they could by thefe means originate, might they not by other means 
 efctluate, alterations in the fundamental points of our government ; 
 and make, in fact, a new conftitulion for us ? 
 
 By the eiglvh fection of the firlt article, Congrefs is empowered to 
 is/row money on the credit of the United States. 
 
 Suppofe it was deemed expedient to fubfidize Portugal, inftead of 
 building frigates, to keep the Algerines within the (heights of the 
 Mediterranean : Could two-thirds of the Senate and the Prefident, 
 cither borrow, or guarantee a loan for that purpofe by treaty ? 
 
 The fame fection empowers Congrtfs to ettablim uniform laws on 
 tie fuljeS of bankruptcies. 
 
 Suppofe Great Britain had remarked, that, as her fubjects were 
 conftantly the creditors of the citizens of the United States, (he was 
 deeply interefted in our fyftem of bankrupt laws : Had die Prefi- 
 dent and two-thirds of the Senate, a right to incorporate fuch a fyf- 
 tem with the projected treaty ? 
 
 The fame lection empowers Congrefs to coin money> to regulate the 
 value thereof, and of foreign coin, and fix the Jiandards of webfa 
 mnd mecfurrs.
 
 MR. JAY's TREATY. 29 
 
 Suppofe the Birmingham manufacturers offered, on a cheap plan, 
 to fupply us with coin ? Suppofe Great Britain were pleafed to infill 
 upon our receiving her guineas at their Englifh value, and upon our 
 promifing not to fweat, deface, or clip the.m, according to the cur- 
 rent practice of the union ? Suppofe France were defirous that we 
 fliould adopt the fanciful projedt of that republic, refpedting weights 
 and meafures ? Could all, or any, of thefe propofitions be acceded 
 to and eftablifhed by treaty ? 
 
 The ninth fedtion of the fame article declares " that the migration 
 or importation of fuch perfons as the dates now exiting {hall think 
 proper to admit, mall not be prohibited by the Congrefs prior to the 
 year eighteen hundred and eight." 
 
 Suppofe Mr. Wilberforce had negociated on the part of Great 
 Britain, inflead of Lord Grenville, and had made the prohibition 
 of the importation of flaves into the United States, in the year eigh- 
 teen hundred and eight, fine qua ncn: Could the Prefident and 
 two-thirds of the Senate admit and legitimife the ftipulation by treaty ? 
 
 By the conftitution, Congrefs has the power to con{Htute tribunals 
 inferior to the fupreme court. 
 
 Suppofe Great Britain defired, for the future, as well as for the 
 pad:, to eftablifh a tribunal of her own judges in America, for de- 
 ciding controverfies between Britiih fubjedts and American citizens : 
 Could this be accomplished through the medium of a treaty ? 
 
 By the conftitution, Congrefs is endowed with the power of de- , 
 daring war. 
 
 Suppofe Lord Grenville had infifted, and Mr. Jay had approved, 
 that the treaty mould be an ofFenfive and defenfive alliance ; aru!, 
 that we mould forthwith join Great Britain in her hostilities againft 
 France : Could the President and Senate thus negociate us into a 
 war ? 
 
 By the conftitution it is declared, " that no perfon holding any 
 office, &c. under the United States, (hall, without the confent of 
 Congrefs, accept of any prefent, emolument, office or title, of any 
 kind whatfoever, from any king, prince, or foreign ftate." 
 
 Suppofe our envoy had been offered a prefent or a title by the 
 Britim monarch would the confent of the treaty be tantamount to 
 the confent of Congrefs, for the purpofe of approving and juftifying 
 his acceptance ? 
 
 By the conftitution it is provided, that all bills for raifing revenue';, > 
 {hall originate in the houfe of reprefentatives ; and, that no money 
 fliall be drawn from the treafury, but in coi.fequence of appropria- 
 tions made by law. 
 
 Suppofe Great Britain had ftipulated, that as foon as ths comnuf- 
 fioncrs had fixed the fum due to her fubjedts for old debts, the : 
 dent mould draw a warrant for the amount, and that the fame fbould 
 be paid out of all public monies, in the treafury of the United States, 
 prior to the payment of any antecedent appropriation by law : 
 Would this be the proper fubjedt for a treaty, 01 for an impedi- 
 ment ? 
 
 E
 
 3 c FEATURES OF 
 
 8. But fatigued and difgufted with difplaying, thus hypothetically 
 the monllrous confequences, which will inevitably flow from the 
 jurifdiffion claimed on behalf of the Prefidcni and Senate, to bind the 
 
 United Slates by any treaty, and in all cafes whatfoever ; let us parti- 
 cularly examine the numerous and extravagant infractions of the con- 
 ftitution, which the projected treaty aSually commits. Recent as is the 
 clhibliihment of the federal conllitution, it is, indeed, to be lamented, 
 that the pofiibility of violating it, is not a matter of floating and fluc- 
 tuating popular opinion ; but a matter fufceptible of fixed and pofi- 
 tive proof. For, who does not recoiled, that a bill touching the 
 fundamental principle of the government (its reprefentative quality) 
 after having pa/fed both houfes of Congrcfs, was declared by the Preji- 
 titnt to be line. jri/iil utionaJ ; and, therefore, undeferving of his official 
 approbation and fignature? Who can forget, that a law touching 
 the eflential properties of the judicial department of our government, 
 after being n'tifed by every organ of Icgiflative authority (the prefldent, 
 knate, and houfe of reprefentatives) was declared by chief ju/lice 'Jay, 
 and his aj/bciate judges, to be unconstitutional ; and, therefore, incapable 
 of being executed and enforced ? With fuch authoritative precedents 
 (and there are many others that might be adduced from the tranf- 
 a^tions of individual dates) of the poflibility of deviating from the 
 rule and meaning of our conftitution, are we to be damned for poli- 
 tical herefy, merely becaufe we doubt, or deny the infallibility of Mr. 
 Jay's negotiating talents? And muft every man be accurfed (to ufe, 
 for a moment, the intolerant language of the late fecretary of the 
 treafury, in his character of the New York Camillus) who thinks, that 
 the American envoy and the Brit'fo minifter were at leaji as likely to 
 mi/take, or mifconjlrue, the conjlitutional boundaries of the American 
 government, as the prefldent, fenate, and houfe of reprefentatives cf the 
 United States? It is certainly, upon the whole, more candid, and 
 more covincir.g, to put " the defence" of the treaty upon the true 
 trading ground, taken by the New York, chamber of commerce ; 
 10 wit, " that we have made as good a market c.s fuch pedlc.rs hrd a 
 right to exfeS on the royal exch-nge ; find thut we cunnot iffjrd tojighl, 
 though we muft fubmit to be plundered." 
 
 9. Let us proceed, however, in examining the points on which 
 the Britijh treaty is at war with the American conjlitution. 
 
 (*) ty the confiitulion of the United States, the JUDICIAL porr.FR 
 is vetted in one fupreme court, and in fuch inferior courts as the 
 Congrefs may from time to time eftablifh ; and its jurifdiclion em- 
 braces, among other things, " controverfies between a Jlute, or citi- 
 zens thereof, tnd foreign JL,les, citizens or Jubjetls." 
 
 By the ire^ty, a tribtin:l other than the fufrtme court, or tny infe- 
 rior cou>t cflalRficd by Corgrefs, is erefted, with a jurifdiftion to 
 tain the amount of any lofles or damages fuftained " by divers 
 B.it'jl merchants and others, his majefty's fubjefls, on account of 
 delis, &c. that ftill remain owing to them by citizens or inhabitants 
 States :" And it is agreed, that in all fuch cafes, 
 11 compenfauon for fuch lofles and damages cannot, for
 
 MR. JAY's TREATY. 3 z 
 
 whatever reafon, be actually had and received by the faid creditors, 
 in the ordinary courfe of jufHce, the United States will make full 
 and complete compenfatton, for the fame, to the creditors," &c. 
 
 Rem'iiks. i. It is the right of every independent nation to efta- 
 blifh and maintain a judicial authority, co-extenfive with its territo- 
 rial poiieiTrons. The principle is indifputable, and it is incidentally 
 recognized by Lord Mansfield and other great lawyers, in the cele- 
 brated controverfy between the king of Pruffia and Great Britain, 
 relative to the Silefia Loan. 2. The constitutional tribunals of the 
 United States were adequate to the adminiftration of complete juftice, 
 in the very cafes for which the treaty provides a fpecial tribunal. 3. 
 If it is poffible in any cafe, with any nation, and at any time, to fti- 
 pulate, by treaty, for the erection of a tribunal, in order to afcertain 
 and liquidate debts due from citizens to foreigners, may it not IK* 
 done in every cafe, with every nation, and at every time ? 4. Is not 
 the Court of CommifTioners, in effect, an High Court of Errors and 
 Appeals for the United States with power to rerife and reverfe every 
 judgment, that has been given fince the year 1 7 ft $, either in ofedf-t.-l 
 orjlate court, in every caufe between a Britifh fubject and an Ameri- 
 can citizen? 5. Wherever the recovery of the principal debt has been 
 protracted by the forms of Lew wherever there has been ,-n abatement 
 of inte.-ejl, by the compromife of the parties, or the verdict of a jury 
 wherever the debtor has become infolvent ; this high court of Commiiii- 
 oners may fuflain an appeal, and can award damages for the deten- 
 tion or lofs of the debt. It is true, the treaty adds, that this " provi- 
 iion is to extend to fuch lodes only as have been occasioned by /.;w//.'/ 
 impediments ;" but the extent of the difcretion of the commiflioners, in 
 adjudging what conflitutes a lawful impediment, is without limitation 
 or controul ; and the nature of the evidence, by which their minus 
 are to be informed, is without rule or definition ; lince (in 
 the language of the treaty) it may be " either according to 
 the legal forms now refpectively exifting in the two countries, 
 or in fuch other manner as the faid commiffioners ihall fee 
 caufe to require or allow." Thus, not only erecting a court un- 
 known to our conftitution, but admitting a fpecies of proof, not re- 
 cognized by the legal forms of our country. 6. Let us appeal to 
 Mr. Jay himfeif, upon the conftitutionality of fuch proceedings. By 
 an ait of Congrefs, the judges of the circuit courts were required to 
 take, and report to the fecrctary at war, certain proofs in the cafe of 
 invalids and penfroners. The judges refufed (as we have already 
 noticed) to execute the act, declaring it to be unconJlitution.J, as well, 
 on account of the nature of the duty impofed upon them, as on ac- 
 count of the revifionary power, which was vetted in the fecretary at 
 war. By the treaty, the Prefrdent and Senate will appoint commilii- 
 oners, in conjunction with the king of Great Britain, to hold a court 
 of appeals from every court in the union ; and to determine judicial 
 queitions, upon private controverfies, between Britiih fubiecls and 
 American crtizens. Now, let us afk, whether it is more usiconflitu- 
 tional/or the legijlatu,e to impofe new and extraordinary duties upon a
 
 3 2 FEATURES OF 
 
 court, exi/ling according to the conjlitution, than for the executive to create 
 a new and extraordinary tribunal, incompatible tuith the conjlitution ; 
 inafmuch as it can only act upon the alienation of the jurifdiction, 
 previou/ly and exclttjively verted in our domeftic courts ; the jurifdic- 
 tion of hearing and deciding judicial queftions, upon private contro- 
 verfies, between Britilh fubjects and American citizens ? 7. But 
 this is not the only infraction of the coniHtution, involved in the 
 arrangement alluded to the obligation of p, ivute contraSs is transfer- 
 red f, om mdi'viduds to the public. The framers of the conftitution, in 
 declaring that " all debts contracted, and engagements entered into, 
 before its adoption, fhall be as valid againft the United States under 
 the conftitution, as under the confederation," could hardly antici- 
 pate, that they charged the treafury of the union with the payment of 
 all the outstanding debts of the individual citizens of America ! And 
 when Congrefs was vetted with a power " to lay and colled taxes, to 
 pay the debts, and provide for the common defence and general welfare 
 of the United States;" it certainly was never contemplated, that the 
 government of America became the infurer of every Britim merchant, 
 r.gainft litigious delays, and fraudulent or accidental bankruptcies ! 
 It cannot be fuggefted that Great Britain acts in a fimilar manner 
 upon our complaints of the fpoliations on our trade. For, the injury 
 that we have fuiraincd, originated in an 08 of gave ; ntnent the injur- 
 ed individuals are, in the fi>jl inftance, bound to apply to the Biitijh 
 rw: is of jujlice and the public are only refponfible in the L<Jl refort, 
 for the individual aggreflbrs. 
 
 (2.) By the conftitution of the United States, Congrefs is empowered 
 to eftablifh " an uniform rule of naturalization ;" and that power has 
 accordingly been exercifed in an act that provides, among other 
 things, that ' no perfon heretofore profcribed by any {late, mall be 
 admitted a citizen, except by an act of the legiflature of the (late in 
 which fuch perfon was profcribed." 
 
 By the Treaty, all the Britim fettlers and traders, within the 
 precincts or jurifdiction of the we(tern polls, are allowed an election 
 f ither to remain Britim fubjects, or to become citizens of the United 
 States : And it is agreed, " that Britifb fubjecls who now hold lands 
 in the territories of the United States, may hold, grant, fell or de- 
 vife the fame, to whom they pleafe, in like manner as if thty 'were na- 
 tives; and that neither they, nor their heirs or a/figns, fliall, fo far as 
 may reflect the faid lands, and the legal remedies incident thereto, 
 be regarded as aliens." 
 
 Remarks. Is not the treaty at war with the conjli'ution in this great 
 and delicate point ofmtut-f-li-zntifjn? A Britim colony is, ipfof.Mo, 
 by the magic of Mr. Jay's pen, converted into an American fettle- 
 ment ! Every , itfo fubjeti, who now holds lands (and when we 
 recollect the recent Speculations for the fale of lands, how can we 
 calculate the extent of the adoption ?) is, without ordeal or reftraint, 
 endowed with all the rights of a native American ! If it is poffible, by 
 treaty, to give the rights of property to aliens, may not the civil 
 rights of the community be difpofed of by the fame potent inftru-
 
 MR. JAY's TREATY. 33 
 
 ment '? If it is poflible, by treaty, to confer citizenfhip on the Britifh 
 garrifon at Detroit, and its contiguous fettlers, why may we not, by 
 treaty, alfo confer an inflantaneous citizenfhip on evei y flight of emi- 
 grants, that fhall harten to our fliores from Germany or Ireland? It may 
 not be amifs here to intimate a doubt of the power of the federal go- 
 vernment to regulate the tenure of real eftates : it is no where ex- 
 prelsly given, and, therefore, cannot be conrtitutionally implied ; 
 and it feems to be among the neceflary and natural objects of rtate le- 
 giflation. But let us prefume (what is highly probable) that there 
 are amongrt the fettlers within the precinds or jurifdiftion of the 
 weftern ports, certain profaibed perfons can the treaty, in fpite of 
 the l&<w t reftore them to the rights of citizenfliip, without the autho- 
 ritative afTent of the rtate that profcribed them ? Again Is every man 
 whofe eftate was liable to coniiication as a traitor, or as an alien, in 
 confequence of the revolution, entitled noiv to hold L nds as a native ? 
 The Fairfax claim in Virginia ; the claim of the Penns in Pennfyl- 
 vania ; and the claims of Gallov/ay, Allen, &c. &c. may hence de- 
 rive a dangerous principle of refufcitation. Look to it well. 
 
 (3.) By the conttitution, Congrefs is empowered to regulate com- 
 merce with foreign nations. 
 
 By the treaty, the commerce of the United States, not only di- 
 reclly with Great Britain, but incidentally with every foreign nation, 
 is regulated. 
 
 Remarks. There is not a fource of /egi/Iali-ve juiifdiSion, upon 
 the fubjedt of commerce, which is not abforbed by this executive ccm- 
 paS. The power of regulating commerce with foreign nations, is 
 exprefsly and fpecifically given to Congrefs : Can a power fo given to 
 one department, be diverted by implication, in order to amplify and 
 invigorate another power, given in general terms to another depart- 
 ment ? But more of that hereafter. 
 
 (4.) By the conftitution, Congrefs is empowered to regulate com- 
 merce with the Indian tribes. ., 
 
 By the treaty, it is agreed, that " it fhall at all times be free to 
 Britiili fubjects, &c. and alfo to the Indians dwelling on either fide 
 of the boundary line of the United States, freely to pafs and repafs 
 by land or inland navigation, into the refpective territories and coun- 
 tries of the two parties on the continent of America, &c. and freely 
 to carry on .trade and commerce with each other." The treaty, 
 likewife, provides, that no duty of entry (hall ever be levied by 
 either party on pelt ies brought by land, or inland navigation into the 
 faid territories refpecHvely ; nor fhall the Indians patting or repaflmg 
 with their own proper goods and effects, of whatever nature, pay k>i 
 the fame any import or duty whatever." 
 
 Remarks. It is eafy to perceive that the ftipulations, in favour of 
 the Indians, were introduced at the inftance of Great Britain ; and 
 her motives are not even attempted to be difguifed. Her traders will 
 boaft of the favour and fecurity, which fhe has compelled America to 
 grant to the Indians ; and fo engage their confidence and attachment ; 
 while the privilege of free pafTage and the exemption from duties,
 
 34 FEATURES OF 
 
 will inevitably throw the whole fur-trade into the hands of the Britifh. 
 The furrendcr of the weftern pofts, under fuch circumftances, can 
 produce no lofs to Great Britain, and will certainly be of no advan- 
 tage to America: Itwill not add a (hilling to the profits of our Indian 
 traffic ; nor infure us a moment's fufpenfion of Indian hoftilities ! But, 
 to profecute our covftttvtiaxal enquiry what right is there, by /; eaty, 
 to regulate our commerce with the Indian tribes ? Whenever a treaty 
 of peace and amity has heretofore been concluded with the Indians, it 
 has been the conftitutional practice of the Prefident, to call on Con- 
 grefs to regulate the commerce with them. Such calls were totally 
 unnecelTary, if the fame thing might as well and as lawfully be done 
 by treaty ; and if it could not be done by treaty in the cafe of the In- 
 dians, neither could it be done by treaty in the cafe of a. foreign na- 
 tion : For, both arc exprefled in the fame terms, and included in the 
 fame member of the feclion. " Congrefs fhall have power (fays the 
 conftitution) to regulate commerce with foreign nations, and among 
 the feveral ftates, and with the Indian tribes." What right is there 
 by treaty to declare that no duly of entry fliall ever be levied by cither 
 party on peltries, sV. (and a fimilar promife is made in cafes that 
 more immediately aiTecl Great Britain) fince Congrefs has the fole 
 power to lay and colled taxes, duties, &c. to pay the debts, and pro- 
 vide for the common defence, and general welfare of the United 
 States ? If we may, negatively, fay, by treaty, that certain duties (hall 
 not be laid,may we not affirmatively fay,j treaty, thai certain other du- 
 ties fhall be laid ? And then what becomes of that part of our coniH- 
 tution, which declares, " that all bills for raifing revenue fliall origi- 
 nate in the houfe of reprefentatives ?" But let us imagine for a mo- 
 ment, that it is in the power of the Prefident and Senate to regulate 
 our commerce with the Indian tribes ; ought not the regulation to be 
 mack 'with the Indians themfelves ? Why fuffer Great Britain to ncgo- 
 ciate and ftipulate for Indians actually refiding within the territory 
 of the United States ? Is fuch a conceflion confident with the dignity 
 and independence of our government with the peace and intereft; of 
 the nation ? Let Mr. Randolph's letter to Mr. Hammond, on the 
 conduct of general Simcoe and major Campbell be referred to, as an 
 anfwer to this queftion. It is not, at prefent, within reach to be 
 quoted ; but its contents were too important to have already efcaped 
 the memory of any reflecting American. 
 
 (<f.) By the conftitution, Congrefs is empowered " to define and 
 punifh piracies and felonies committed on the high feas, and offences 
 againft the law of nations." 
 
 By the treaty, the definition and puniihment of certain offences, 
 not known by any law of the union, is declared and permitted ; to 
 wit i ft. For accepting commilTions or inflections from any foreign 
 prince or (late, to aft againft Great Britain. 2d. For accepting any 
 foreign commiffion or letter of marque for arming any privateer, &c. 
 Great Britain may punifh an American citizen as a pirate, ^d. For 
 not treating Britifh officers with that refped which is due to the com- 
 mffions they bear, and for offering any infult to fuch officers, the of-
 
 MR. JAY's TREATY. 35 
 
 fenders mall be punifhed as dl/lurbers of the peace end amity between 
 America and Great Britain. 41)1. For making a prize upon the fub- 
 jecls of Great Britain, the people of every other belligerent nation 
 (except France) mall be punifhed by a denial of Jhelier or refine, In 
 (iur ports. 
 
 Remarks. To define crimes, and apportion punifliments, is the 
 peculiar province of the kgtfiativt authority ot every free government: 
 but it is obvious, from the foregoing recapitulation, that the executive 
 authority has likewife encroached upon that province, by the infrru- 
 mentality of its treaty-making power. Can a citizen be furrendered 
 by treaty to all the pains and penalties of piracy ? Then by treaty, he 
 might be fubjedted to all the pains and penalties of treafun. It is 
 true, that the conftitution referves to itfelf the exclitfive right of de- 
 claring what fhall conftitute treafon ; but it is equally true, that it 
 bertows on Congrefs the excluf.ve right to define and punifh piracy : 
 and the invafion of the right to define in one cafe, is as unconftitutional 
 as the invaflon of an a&ual definition in the other. But what legiti- 
 mate authority can a treaty fuggefr, in order to jufHfy the reftraint 
 upon that right of expatriation, which Congrefs ilfelf has not ven- 
 tured to reltrain, while legislating on fubjedts of a fimilar clafs ? It 
 is not intended to convey the flighted doubt of the power and pro- 
 priety of controuling our citizens in their conduct towards foreign 
 nations, while they are within the reach of domefllc coercion : but to 
 prohibit an American freeman from going whither he pleafes, in 
 queft of fortune and happinefs to reftricT: him from exercifing, In a 
 foreign country, and in a foreign fervice, his genius, talents and in- 
 duftry ; to denounce him for feeking honour, emolument or inftruc- 
 tion, by enlifting within the territory, and under the banners of another 
 nation to do fuch things, is to condemn the principle of our own 
 policy, by which we invite all the world to fill up the population of 
 our country : To do fuch things is, in fait, to proftrate the boaired 
 rights of man. It is hardly worth a paufe to afk, What proportion 
 of refpecl is due to the commiffion of a Britifh officer ? and what de- 
 gree of punifhment the refufal or negledt to pay it, may defei vc ? 
 
 (6.) By the confUtution it is declared, that " no tax or duty 
 (hall be laid on articles exported from anyjtate." 
 
 By the treaty, " it is exprefsly agreed and declared that the Uni- 
 ted States will prohibit and reftrain the carrying any melailes, fugar, 
 coffee, cocoa, or cotton, in American veflels, either from his majeity's 
 iflands, or from the United States, to any part of the world." 
 
 Remarks. This is an extrafr, it is true, from the twelfth article 
 of the treaty ; but it equally ferves to fhow the probability ot attempts 
 to violate the conftitution. Beficles, the advocates for the treaty 
 are hafty and premature, when they defire to throw the twelfth ar- 
 ticle entirely out of confideration : for, by that propofition, thnvgh 
 they foould fave the treaty, they cffeclually dejlroy iir author. They 
 are hafty and premature for another reafon : the twelfth article is to 
 \)Q fufpended for the declared purpofe of negotiating fjivethirg as <: 
 tute ; and, therefore we malt confider its principle, in order t.-> *i
 
 36 FEATURES OF 
 
 tain how far any modification of it could be rendered palatable. But, 
 on conftitutional ground., when it is declared, that no duty mall /_; law 
 be laid on articles exported from any ihtte, is it not abfurd, or wicked 
 to fuppofc, that by treaty the exportation of the articles themftlves can 
 be prohibited ? The obvious intention oft&e conjlituiion is -to encou- 
 rage our export trade ; the immediate effect of the treaty is to obftruct 
 and annihilate it. 
 
 (7.) There are many other points in which a c ollifion occurs be- 
 tween the conjlituiion and the treaty, but to which the fcope and nature 
 of thefe (trictures will not admit a full attention. It may be curforily 
 remarked, however, that zee/Jim of territory, which will, probably, 
 be the confequence of fettling anew the boundaries of the United States, 
 and even the actual ceflion of the precincts of the weftern pofts, 
 though in favour of individuals, are fubjects for ferious reflection. If 
 a part of the United States may be ceded if a whole ftate may be 
 ceded, what becomes of the guarantee of a republican form of go- 
 vernment to every ftate ? The propriety of ptefenting this confidera- 
 tion to the public mind, will be allowed by thofe who know, that, 
 in the courfe of the fe notarial debate, the right of ceding by treaty a 
 whole Jiate, nay, any number of the Jiate.:, Jbort of a majority, <was 
 boldly aflerted, and flrenuoufly argued ! ! ! 
 
 (.) It may not be amifs, likewife, to add, that our government 
 has no more right to alienate powers that are given, than it has to 
 iifurp powers that are not given. For inftance, an aft of Congrefs 
 could not (and can a treaty ?) furrender the right of fequeftering the 
 property of a hoftile nation the right of giving commercial prefer- 
 ences to a friendly nation and the right of fulpending a ruinous in- 
 tercourfe with any nation ? Great clamours have been raifed againft 
 the exercife of thefe rights ; and, undoubtedly, they fliould only be 
 ufed in the loft rtfort ; but they are rights recognifed by the law of na- 
 tions ; and they are rights often eflential to the duties of felf-prefcrva- 
 tion, and fometimes neccllaty to the accomplifhment of reciprocal 
 jnjlke. 
 
 10. Haung taken this review of the actual 'warfare between the 
 confutation and Mr. Jay's diplomatic work, and of the deftructive 
 coofequences of the claim of the executive, to bind the United Slates, 
 in all cafes whatfoever, by treaty ; let us recur to the pofition with 
 which the prefent feature was introduced, namely, the duty of pre- 
 ferring the conjlitution, fuch as it was made and intended by the people, 
 
 and we (hall rind, by a faithful comparifon of theory with practice, 
 that the government of the United States may be transformed through the 
 medium of the treaty-making power, from a republic to an oligarchy 
 from a free government offtveral departments, legiflative, judicial and 
 executive to the fimple ariflocratical government of a Prefident and 
 Senate. 
 
 1 1. This fatal effect, however, of converting our government from 
 the fyftem which the people love, to a fyftem which they abhor, 
 from what it was made in theory, to what it was never intended to be 
 made by practice can only proceed from error or corruption. It
 
 MR. JAY's TREATY. 37 
 
 would ill become the writer of thefe liridtures, who fo freely, but it 
 is hoped, fo fairly, exprefles an opinion, to impute to any man or 
 fet of men, a fmifter and traitorous defign againft the conftitution of 
 our common country. The denunciations fulminated by the Ne<w- 
 Tork Camillas, and his fmall circle of coadjutors, harmlcfsly expand 
 themfelves in the violence of their exploiion : like the denunciations 
 of fh. Tiara, they fpring from an arrogant claim of infalliliTity ; and 
 likt them too, will only excite the denjion or the difgujl of an enlight- 
 ened nation. Is it credible, that every citizen of the United States, 
 from Georgia to New-Hampihire, who reprobates Mr. Jay's treaty, 
 muft either be an enemy to our government, or a rancorous incendiary . ? 
 Is it to be prefumed that no man can utter a fentence of difapproba- 
 tion refpefling the principles of the treaty, without feeling a fentiment 
 of animofity, reflecting the perfon of the negociator ? Are we really" 1 
 fuch flaves to faction ; fo trammelled with party ; fo infenfible to 
 virtue, truth and patriotifm ; that every thought which we conceive, 
 every expreffioo which we ufe, on this momentous occafion, mart be 
 connected with the pofiible (but it is ardently hoped the diflant) event 
 of electing a fuccejjor to the prefent chief magijlrate of the union ? Yet, 
 fuch are the bafe and fordid motives, paffionately and wantonly afcri- 
 bed by Camillas and the fcanty troop of advocates, who follow him 
 in fupporiing the treaty, to the great hojl of the American people, rifing 
 (as it were) In mafs to condemn it. * 
 
 If it could be thought a convenient, a reputable, or a necefTary 
 taflc, how fuccefsfully might the argument of recrimination be employ- 
 ed ! Who, it could be afkcd, are the perfont that fupport the treaty ? 
 What are the motives that actuate them ? Is it farpriung that the men 
 who advlfed the treaty, or that the THE MAN who compofed it, mould 
 endeavour, by the force of ingenuity, art, or defamation, to refcue it 
 from general malediction and impending ruin ? Was it not to be expell- 
 ed, that a faction, im'fonn'y eager to ejlablijb an alliance with Great Bri- 
 tain, at the expence of France, wo aid lircnuoufly attempt to procure 
 the ratification of any inftrnment, calculated to accompliih that object? 
 Does not conuftency require from him, who openly projected in the 
 Federal Convention, and from thofe, who ft'crttly dejii -e-'m the execu- 
 tion of public offices, the eftablifhruent of an ariftocracy, under the in - 
 fidious title of an energetic fihone of government, that they fliould ap- 
 prove and countenance every practical application of any medium, by 
 which the barriers that feparate our conititutional departments, may 
 be overthrown, and the occafions for interpofmg the popular fanction 
 of the legiflature, may be fuperceded or avoided ? Is it not natural, 
 that Britifh merchants and British agents is it not necejjary, that 
 Britifli debtors and Britiih faclors, mould clamofoufly unite, or ta- 
 citly acquiefce, in tke applaufe be''i;owed upon a compact, which, 
 however detrimental to America, is beneficial to Great Britain the 
 nation of chief importance to the allegiance and affections of fome of 
 thofe characters, and to the opulence and fubfiirence of all ? Or, if 
 the paltry idea of an elecll-mccring plan muft be forced upon out con- 
 
 , is it not, at leaft, as likely, that the far.'v, -.iLJj aims at 
 '
 
 3 S FEATURES OF 
 
 ir.,-k':ng a Prcfnlent of Mr. Jay, will, on that ground alone, exert il- 
 fflf in "The Defence" of the treaty, as that the party, which is 
 delirous of conferring the fame elevated office on Mr. Jetferfcn, will, 
 for no other reafon, attempt to blaft the fruits of his competitor's 
 negociation ? Confidering, indeed, that Cam/ttvs himfelf, by con- 
 fining his "Defence" to the treaty as aifoifi d to be ratified by the fe- 
 tiate, virtually abandons the treaty as negociated and concluded by 
 Mr. Jay : and alfo, confidering that a part of Oamifltn*a defence 
 of the prffent treaty arifes from the ambiguity that Mr. Jay had left in 
 the former treaty with Great Britain (upon which, however, his 
 character as a negociator was founded) we might be led to fuppofe, 
 that Mr. Jay's pretenfions to the wifdom of a flatefman, and to the 
 Nation of a Prefident, were not deemed, even by bis oivn party, 
 to be any longer tenable ; but that Camillas ftill cordefcends, on the 
 obvious prefumption of a fubfitling rivalfhip, to impeach the miniftc- 
 rial character, and to depreciate the official performances, of Mr. 
 Jefferfon. 
 
 But why mould we arbitrarily abtife, inftead of endeavouring ra- 
 tionally to convince each other ? We all have the fame right, from 
 natural and from focial law, to think and to fpeai : it is true, that we 
 do not all poffefs the fame powers of reafon, nor the fame charms of 
 eloquence; but when men are on an equality in tire poffejjfion, as well 
 iiS in the right of cxercifnig, thofe endowments, there can be no ami- 
 cable way of adjuring a difference of opinion, but that which is 
 adopted for adjufKng all the other differences of a free people an 
 appeal to the voice of the majority ! Now, let it be allowed (and fo far 
 ought it to be allowed, but no farther) that Mr. Jay, who negociated 
 the treaty ; the twenty members of the fenate, who aflented to a con- 
 ditional ratification ; and Mr. Hamilton, and the New-York cham- 
 ber of commerce, who have appeared in fupport of it (an enumera- 
 tion that comprifes, it is believed, all that have hitherto avowed a 
 frrfed approbation] are in the poffeflion of as great a proportion of 
 information, integrity and talents, as a like number of citizens, fe- 
 lected for their approved wifdom, virtue and patriotifm, from the 
 aggregate of thofe who have publicly condemned the treaty ; and 
 then let it be candidly anfwered, which fcale in the balance rnuft, of 
 right, preponderate ? After fuch a felection, there will ftill remain 
 the great body of the community in oppofition to a ratification ; and, 
 as members of that community, thousands of individuals, who hon- 
 ourably ferved during the late war, in the field and the cabinet, and 
 many of whom at this moment ferve with zeal, fidelity and wifdom 
 in the various departments of government. Is it not then the fymp- 
 tom of an arrogant vanity of a tyrannical difpofition to ftigmatife 
 fuch an oppofition to a prnjefied me afure, with the name of'Faftion?* 
 The violence offered to Mr. Hamilton's perfon in New- York, and 
 to Mr. Bingham's houfe in Philadelphia, have juftly excited the in- 
 dignation of every fin cere republican ; but even that reprehenfible 
 und odious conduct is not to be compared to the enoimous guilt of 
 endeavouring U) fores the opinion of affw individuals upon tie ferfk,
 
 MR. JAY's TREATY. * Q 
 
 o> 
 
 as the ultimate teft of political truth ; and to caft ao odium upon the 
 late conventions, in which (according to the language of the confti- 
 tution) " the people were peaceably aiTerabled, to petitiotvthe go- 
 Ternment for the redrefs (or rather the prevention) of a grievance." 
 But let the pardon of the reader be granted for this digreflion ;.3ixt 
 we will return to a delineation of the feature that lies before us. 
 
 12. Declining, then, either to create, or to follo\v, a bad exam- 
 ple, let us afcribe the deviation from the principles of our conftitu- 
 tion to an erroneous conftruclion, rather than to a iv'ilful perverfiiji: ; 
 and let us exert our fkill in averting the evil that threatens, rather 
 than indulge our refentment in convicting thofe who labour to pro^ 
 duce it. 
 
 Our government, therefore, being a government of departments, it 
 is (as we hare already obfcrved) inconiillent with the duty offelf- 
 prefirvation ; or, in other words, it mufl: proceed from an error in 
 conjlruttion ; that one department fhall aflame and exercife all, or 
 any, of the powers, of all, or any, of the other departments. 
 K The departments of government (to adopt the elegant figure ufed 
 by an excellent judge, in a late admirable charge to a Philadelphia 
 jmy) are planets that revolve, each in its appropriate orbit, round 
 the conttitution, as the fun of our political fyftem." Thus, if the 
 legislative, executive, or judicial departments mall encroach, one 
 upon the orbit of the other, the deftruclion of the order, life, and 
 beauty of -the political fyl'tem, murt as inevitably enfue, as the de- 
 itruflion of the order, ufe, and beauty of the planetary fyftem would 
 follow, from a fubverfion of the efTeniial principles of attraction, re- 
 pulfion and gravity. 
 
 13. It was necefTary, however, that the power of making treaties ? 
 with foreign nations, fhould be verted in one of the departments of 
 the government : but the power of making treaties is not, in its na- 
 ture, paramount to every other power ; nor does the exercife of thai 
 power naturally demand an exclusive jurifdiftion. A nation may car- 
 ry on its external commerce without the aid of the treaty-waking frnver ; 
 but it cannot manage its dome/lie concerns without the aid of the le- 
 gijlati=ue power : the legiflative power is, confequently, of fuperior 
 importance and rank to the treaty-making power. Again: -The le- 
 gl/lative power exerc'fed conformably to the conftitution, mult be direft, 
 univerfal, and conclufive in its operation and force upon the people ; 
 but the treaty-making power is fcarcely in any ir.tb.nce independent of 
 iegiilative aid to effeduate its efforts, and to render its compacts obli^ 
 gatory on the nation. A memorable occurrence in the Englifh 
 hiftory will ferve to illuflrate both of thefe pofitions : It is the fate 
 of the commercial part of the fanirus treaty of Utrecht, concluded be- 
 tween France and England in the year 1712. " The peace (fays 
 Ruflel in his Hittory of Modern Europe, vol. 4. p. 457) was gene- 
 rally difliked by the people, :md all impartial men reprobated tlie 
 treaty of commerce with France, as loon as the tc' ms were known. 
 Exception was particulaily taken againit the 8th and 9th .ar- 
 ticles, importing " That Great Britain and I'Yiir.ce mould mr.tually
 
 4 o FEATURES OF 
 
 enjoy all the privileges in trading with each other, which either 
 granted to the mod favoured nation ; that all prohibitions mould be 
 removed, and no higher duties impofed on the French commodities, 
 than on thofe of any other people." The ruinous tendency of thefe 
 articles was perceived by the whole trading part of the kingdom. It 
 was accordingly urged, when a bill was brought into the houfe of 
 commons for confirming them, that the trade with Portugal, the 
 mofl beneficial of any, would be loft, mould the duties on French 
 and Portuguefe wines be made equal, &c. &c. Thefe and limilar 
 arguments induced the more moderate tories to join the whigs, and 
 the bill was rejefled ly a majority of nine votes. In relating the fame 
 tranfaclion, Smolkt's hiflory of England, vol. 2. p. 242, 246, con- 
 tains fome pafTages too remarkable to be omitted on theprefent occa- 
 fion. " Again (I the 8th and 9th articles, (fays the hiflorian) the 
 Portuguefe miniiler prefented a memorial, declaring, that fhould 
 the duties on French wines be lowered to the fame level with thofe 
 that were laid on the wines of Portugal, his mailer would renew the 
 prohibition of the woolen manufactures, and other products of Great 
 Britain. Indeed, all the trading part of the nation exclaimed 
 againft the treaty of commerce, which feems to have been conclu- 
 ded in a hurry, before the miniflers fully undcrflood the nature of 
 the fubjecl. This precipitation was owing to the fe^rs that their en- 
 deavours after peace would mifcarry, from the intrigues of the whig 
 faction, and the obflinate oppofition of the confederates." " Ano- 
 ther bill (continues the fame writer, in a fubiequent page) being 
 brought into the houfe of commons, for rendering the treaty of com- 
 merce effectual, fuch a nuntltr of petitions ivere delivered again/I /'/, and 
 fo many folid arguments -advanced by the merchants, who were ex- 
 amined on the fubjedt, that even a great number of toiy members 
 were convinced of the bad confequence it would prcdacc to trade, 
 and voted againft the minitrer on this occafion." 
 
 Perhaps there cannot, in the annals of all the nations of the earth, 
 be found two cafes more parallel than the one which is thus recorded 
 in the Englifh hiflory, and the one which at prcfent agitates the 
 American nation. I. All impartial men reprobated both treaties, 
 as foon as the terms were known. 2. The admiflion of the oppofitc 
 contracting party to an unqualified participation in trade, with the 
 moil favoured nation, is, in both cafes, a principal fource of com- 
 plaint. 3. The removal of all prohibitions, and the furrender of 
 the right to impofe higher duties on the commodities of the oppofite 
 COntradmg party, than on thofe of any other people, are, in both 
 cafes, condemned. 4. The good and the intelligent, of all parties, 
 have united their influence, in both cafes, to prevent a confirmation 
 of articles of fo ruinous a tendency. 5. The whole nation, in both 
 cafes, have exclaimed sgainfl the treaty. 6. Both treaties were 
 concluded in a hurry, before the mimfters foHy urderftood the nature 
 
 the fubjecl. 7. Innumerable petitions (and who will NOW deny 
 the propriety of exercifing the American right to petition ?) were 
 delivered agairfi both treaties. 8. Ar.d the Portu<raefe minifler
 
 MR. JAY's TREATY. 41 
 
 declared, in eftedl, of the treaty of Utrecht (mutatis mutandis) what 
 the minifter of France will, probably declare of the treaty of London 
 (but what America furrenders the right of faying at any time to 
 Great Britain) " If you ratify your alliance with the Britifii, you 
 mud furrender your alliance with France." If fuch a wonderful 
 fimilarity of circumftances concur in the negotiation, terms, and recep- 
 tion of thefe memorable inftruments, let us hope that the guarch'an 
 angel of American liberty and profperity, has, alfo, doomed them 
 finally to experience a merited Jimilarity of fate! 
 
 14. But having thus fnown, that, even in Great Britain, the 
 treaty-making prerogative is neither paramount nor cxcluji-ve (though 
 the generality of judge Blackitone's expreffions on the fubjecl, would, 
 perhaps, lead to that prepofterous conclusion) we might be fatisfied 
 to prefame, on general principles, that fo high a claim of 'rurifdiclion 
 could not be maintained, at leafr, on the part of cur president and 
 fenate. Yet, let us endeavour, by the infallible teft of the coniKtu- 
 tion, to put the matter, if poffible, beyond doubt and controverfy ; 
 and, having eftabliihed that each department of the government 
 fliould be confined to its proper orbit, let us endeavour to afcertain, 
 what that orbit is, in relation to the treaty-making power. 
 
 (i.) The power of the prefident and fenate to make treaties, 
 is given, (as we have already llated) in general and unrejtrided 
 terms. 
 
 But the powers given to Congrefs (except in an in (lance to be 
 hereafter noticed) are definite in their terms, and appropriated in their 
 t>l)e8s. 
 
 Let us afl<, then, by what rule of conftru&ion a power primarily 
 nnd fpecifically given to one body, can be aflumed and exercifed by 
 another, to which, in a fulftquent clanfc, a mere general authority is 
 given ? 
 
 Upon the common law principles of conftruflion, the fpecific 
 potvers would clearly, in fuch a cafe, be deemed a refervation and 
 exception out of the general grant. But even according to a rule 
 furnifhed by the conftitution itfelf, the fame refult will be produced. 
 Thus, the twelfth ratified amendment declares, " that the powers 
 not delegated to the United States by the conftitution, are referved 
 to the itatcs refpeftively, or to the people." Now, if the general 
 power granted for the purpofe of making treaties, can fet at nought 
 the jurifdiclion fpecifically given to Congrefs for the purpofe of mak- 
 ing laws, may it not, with equal propriety and effect, overleap the 
 boundary thus interpcfcd between popular rights and conftitutod 
 powers . ? In the one c;:ie, the refervation is exprefsly declared in 
 the other, it is necei!ari!y implied. 
 
 (2. Bat if the delegation of z general pr,-ucr docs, ipfo faSo, con- 
 vey a right to embrace, in the exercife of that power, ^very authority 
 not .incompatible with its objeds, the coflfeqoefice will be, thatutffl- 
 grefs may enter into treaties c.s well as the pnfuhnt and fenate. 
 
 For, Congrefs is veiled, with a jurifdiction " to make all laws, 
 which fiiall be neceffr.ry and proper for carrying ir.to execution their
 
 42 FEATURES OF 
 
 own powers :'' and what laws are, in that refpccV, necetfary and 
 proper, they mutt, from the nature of the thing, be the judge. 
 
 Suppofe, therefore, that Congrefs was defirous of forming an alli- 
 ance, offenfive anil d.fi/i/ive, w':lh France, but could not obtain the 
 conftitutional number of two-thirds of the fenate for accompliming 
 the meafure by treaty, an a8 of Coiignfs, in order to regulate commerce 
 with that nation, would afford as effectual a mode (according to the 
 new doctrine) iince the act, on the pretext of an equivalent for com- 
 mercial advantages, might legtftate us into the coveted alliance. The 
 temptation and facility of proceeding in this way is obvious ; the 
 paffing of a law requiring but a majority of the fenate ; whereas the 
 ratification of a treaty requires the concurrence of two-thirds of the 
 members of that body. 
 
 (3.) It is not, however, neceffary to mingle and confufe the de- 
 partments of our government, contrary to the firft principles of a 
 free republic ; nor to make a part of our political fyftem equal to the 
 whole, contrary to the foundeft axioms of demon fixative philofophy, 
 in order to give a juft, efficient and falutary effecl to the treaty- 
 making power of the prefidcnt and lenate. For although, 
 
 In the jirft place, the treaty-making power cannot bind the natioa 
 by a decifion upon any of the fubjefls, which the conftitution exprefsly 
 devolves upon the legijlat'rvc power : 
 
 Yet, in the fecond place, the treaty-making power may ncgociate 
 conditionally, refpe&ing the fubjecls that conlHtutionally belong to 
 the decifwa of the Ifgijlative power ; 
 
 And, in the third place, every other fubjetl, proper for the national 
 compaft of a republic, may be negotiated and abfc/tvtely concluded ly 
 the treaty-making power. 
 
 (4.) That fuch a diftioclion was intended by the framers of our 
 prefent excellent conftitution, the reafons that have been glanced at, 
 muih it is thought, furliciently prove to every ingenuous mind : But 
 let one argument more be adduce^. 
 
 By the ninth article of the old confederation, it was declared, 
 " That the United States, in Congrefs affembled, mall have the 
 foL' and exclufive right and power of determining on peace and war." 
 
 By the exifting conilitution of die United States, it is provided, 
 " That Congrefs mall have power to declare war, grant letters of 
 marque and reprifal," &c. 
 
 Now, it is evident, that by omitting to depofit with Congrefs the 
 power of maLlng peace, in addition to the power of declaring war, 
 the framers of our prefent government, had in full view the divilion 
 of its department, and the correfponding ciftribution of its powers. 
 
 Congreis, imJer ibe confederation was a finglc body, and therefore, 
 ntceilkrily pofleffed of all the little legiflative, executive, and judicial 
 authority, which the fates had been pleafed to delegate to the union. 
 
 The government of the United Siates, on the contrary, is a com- 
 pound fyrtem, of which the Congrefs is only the legi/lative department: 
 and, therefore, die executive and judicial fundlior.s are elfewhere to 
 be fought for and exercifed.
 
 MR. JAY's TREATY. 43 
 
 Hence it is, that although the power of declaring tvar is- (as it 
 ought to be) left with Cor.grsfs, the power of making peace is (as it 
 ought to b^) transferred to the executive; being a natural appendage 
 of the geneial power of mating treaties. 
 
 This deduction ferves likewife to dcmonftrate, that the fremers of 
 the conftitution, did not intend to leave the powers that urtrfpecifically 
 given to Congrefs, at the mercy of the power that, is generally given 
 to the prefident and fenate. By exprefiing a pofitive jurifdiitipn in 
 favour of the former, it excludes a claim of jurifdiclion in favour of 
 the latter. 
 
 (5.) Nor is it in the power of making treaties only, that the confti- 
 tution has abridged ihs executive Apartment of its cuftomary attributes, 
 ia order to augment the fources of k$:jir.i'roe jitrifiiici'wn. 
 
 In Great Britain (for inftance) the executive pofleiles the power of 
 making peace ; of granting letters of marque and reprifal ; of regulat- 
 ing weights and meafures ; of coining money, regulating the value, 
 thereof, and of foreign coins ; of creeling courts of judicature ; of 
 conferring the rights of denizenfhip on aliens, &c. &c. 
 
 In the United Slates the power for all thofe purpofes is abfolutely 
 vefted in the legiflature. 
 
 15. On reviewing the various portions that have been taken ia 
 the courfe of thefe ftridures, a defire is felt to exhibit die corrobo- 
 rative opinions of men who have been ju'lly valued by the public : 
 It will be ufeful to the reader, as well as pleafmg to tin; writer, to 
 indulge the difpofition in a few inftanccs, and in a brief manner. 
 
 ( I. ) It has been faid, that the power of regulating commerce belong- 
 ed to Cun^refs. 
 
 The report of Mr. Mafon (a member of the federal convention) 
 en that fubjecT:, was delivered in the cpnvcnrion of Virginia as fol- 
 lows : " With refpecl to commerce and navigation, I will give vou, 
 to the beft of my information, the hiftory of that affair. This bu- 
 (inefs was drfcufled [in the convention] at Philadelphia for four 
 months ; during which time the fubiect of commerce and navigation 
 was often under confideradun ; and, I afTert, that eight out of twelve, 
 for more than three months, voted for requiring two-thirds of the 
 members prefent in each houfe to pafs commercial and navigation 
 laws. True it is, that afterwards it was carried by a majorrty as it 
 ftands. If I am right, there was a great majority for two-thirds of 
 the ftates in this buiinefs, till a cornpromife took place between the 
 northern and fouthern (rates ; the northern dates agreeing to the 
 temporary importation of Ln c? ; and the foulhern ftates conced-iny, 
 in return, ttiat navigation and corumeicial laws fhould be on tii 
 footing i;i which they now ft and." 
 
 (2.) It has been faid, that the treaty-waking power ccvlA net cede m 
 part of the union-, nnr fiirr^ndiT a ciijzen to tc putrfceJ as a pirate. 
 
 The opinion of Mr. Randolph (a member of the f^d-jral conven- 
 tion, and now fecretarv of irate) delivered in the fame convention, 
 tht foilaw-iag paflige : " I conceive, 'Jar neither tlie Ie<i,
 
 44 FEATURES OF 
 
 nor the property of any citi/.en, nor the particular right of any ftate, 
 can be effected by a treaty." 
 
 Mr. Madifon, alfo, juftifying and recommending the adoption 
 of the conftitution to his fellow citizens, fays, with refpecl to the 
 treaty-making power " I am perfuaded, that \vhcn this power comes 
 to be thoroughly and candidly viewed, it will be found right and pro- 
 per. Does it follow, becaufe this power is given to Congrefs, that 
 it is abfolute and unlimited ? I do not conceive that power is given 
 to the prefident and fenate to difmember the empire, or to alienate 
 any great, eflential right. I do not think the whole legifiative au- 
 thority have this power. The cxercife of the power nrnft be confift- 
 ent with the objedt of the delegation." 
 
 (3.) It has been find, the right of fit f [-ending a commercial intercourfe 
 with any nation, and the right offeqnejlering an enemy's property, ffr. 
 were rights effential to an independent government, and recogmfed by the 
 law of nations. 
 
 Fattel contains the following, among many other paflages on thofe 
 fubjecls : 
 
 " Every (rate has a right to prohibit the entrance of foreign mer- 
 chandife, and the people who are inrerefted have no right to com- 
 plain of it, as if they had been refufed an office of humanity." 15. 
 i. c. 8. f. 90. 
 
 " It depends on the will of any nation to carry on commerce with 
 another, or to let it alone." Ibid. f. 92. 
 
 " The goods even of the individuals in their totality ought to be 
 confidered as the goods of the nation, in regard to other Itates. From 
 an immediate confequence of this principle, if one nation has a right 
 to any part of the goods of another, it has a right indifferently to the 
 goods of the citizens of that part, till the difcharge of the obliga- 
 tion." Ibid. f. 8 1, 82. 
 
 " It is not always neceffary to have rccourfe to arms, in order to 
 puniih a nation : the offended may take from it, by way of punifh- 
 mcnt, the privileges it enjoys in his dominions ; feize, if he lias an 
 opportunity, on fome of the things that belong to it, and detain them 
 till it has given him a juft fatisfaclion." B. 2. c. 18. f. 340. 
 
 " When a fovereign is not fatisfied with the manner in which his 
 fubjefta are treated by the laws and culloms of another nation, he is 
 a. liberty to declare, that he will treat the fubjefts of that nation in 
 the fame manner that his are treated." Ibid. f. 341. 
 
 (4.) It has been faid that the conditution ought to be preferved 
 fuch as the people have made it ; that, of courfe, the departments of go- 
 vernment ought to be kept feparate and dHHnct, each revolving in its 
 proper crlit, and that no other judicial tribunal could be creeled by a 
 law of the Icgijlative power, much lefs by a treaty of the executive power, 
 than what the conftitution prcfcribes, or exprefsly permits. 
 
 On this inttrelling fubjefi we fortunately poflefs the opinions of 
 the judges of the fupreme court, and of the judges of fome of the 
 com is, is the cafe of the ait of Congrefs (already more than
 
 MR. JAY's TREATY. 45 
 
 once alluded to) 'which they have unanimonjly adjudged to be uncon- 
 Jiitutional and void. 
 
 Extract from the opinion of judges IREDELL and SITGREAVES. 
 
 " Fir/} .- That the legiflative, executive and judicial departments 
 are each formed in a feparate and independent manner ; and that the 
 ultimate balls of each is the conftitution only ; within the limits of 
 which each department can alone juftify any act of authority. 
 
 " Secondly : That the legislature, among other important powers, 
 unquestionably poffeSTes that of eftabliShing courts, in fuch a manner as 
 to their wifdom mall appear beSt, limited by the terms of the confti- 
 tution only ; and to whatever extent that power may be exercifed, 
 or however fevere the duty they may think proper to require, the 
 judges, when appointed in virtue of any fuch eftabliShment, owe im- 
 plicit and unreferved obedience to it. 
 
 " Thirdly : That at the fame time fuch courts cannot be warrant- 
 ed, as we conceive, by virtue of that part of the conftitution dele- 
 gating judicial power, for the exercife of which any acl: of the legiSla- 
 ture is provided, in exercifing (even under the authority of another 
 acl) any power not in its nature judicial, or if judicial, not provided 
 for upon the terms the conjl'itution requires. 
 
 " Fourthly : That whatever doubts may be fuggefted, whether 
 the power in queftion is properly of a judicial nature, yet inafmuch as 
 the decifion of the court is not made final, but may be, at leaft, 
 fufpended in its operation by the fecretary at war, if he mall havj 
 caufe to fuSpecl impofition or milrake, this fubje<Srs the decifion of 
 the court to a mode of revifion, which we confider to be unwarranted 
 by the conftitution : For, though Congrefs may certainly eftablilh, in 
 inftances not yet provided for, courts of appellate jurisdiction ; yet, 
 fuch courts muft conSiSt of judges appointed in the manner the confti- 
 tution requires, and holding their offices by no other tenure than that 
 of their good behaviour ; by which tenure the office of fecretary a^ 
 war is not held. And, we beg leave to add, with all due deference, 
 that no decifion of any court of the United States can, under any 
 circumftances, in our opinion, agreeably to the conftitution, be liable 
 to a reversion, or even fufpeniion, by the legiflature itfelf, in whom 
 no judicial power of any kind appears to be velted, but the import- 
 ant one relative to impeachments." 
 
 Extract from the opinion of judges WILSON, BLAIR, and PETERS. 
 
 " The people of the United States have veiled ia Congrefs all 
 hgiflative powers, granted in the constitution. 
 
 " They have vefted in one Supreme court, and in fuch inferior 
 courts as the Congrefs Shall eftabliih, the judicial power of the United, 
 S tates. 
 
 " It is worthy of remark, that, ic Congrefs, the while legislative 
 power of the United States is not vefted : an i nportact part of thut 
 power was exercifed by the people themfclves, when they ' ordained 
 and eftsbliShed the coaftitution.' 
 
 G
 
 46 FEATURES OF 
 
 " This conftituiion is the * fupreme law of the land :' This fu- 
 preme law, all judicial officers of the United States are bound, by 
 oath or affirmation to fupport.' 
 
 " It is a principle important to freedom, that in government, the 
 judicial mould be diftinct from, and independent of, the legillative 
 department. To this important principle, the people of the United 
 States, in forming their conftitution, have manifefted the higheft 
 regard. 
 
 ** They have placed their judicial power, not in Congrefs, but in 
 ' courts.' They have ordained, that ' the judges' of thofe courts 
 mail hold their offices during good behaviour ;' and that, * during 
 their continuance in office, their falaries mall not be diminifhed.' 
 
 " Congrefs have lately parTed an act * to regulate (among other 
 things) the claims to invalid penfions.' 
 
 " Upon due confideration, we have been unanimoufly of opi- 
 nion, that, under this act, the circuit court, held for the Pennfylvania 
 diftrict, could not proceed : 
 
 " Fir/I, Becaufe the bufinefs directed by this act, is not of a judi- 
 cial nature. It forms no part of the power vefted by the conftitution 
 in the courts of the United States ; the circuit court muft, confe- 
 quently, have proceeded without conftitutional authority. 
 
 " Secondly, Becaufe, if, upon that bufinefs, the court had pro- 
 ceeded ; its judgments (for its opinions are its judgments) might, 
 under the fame act, have been revij'ed and controuled by the legijlature, 
 and by an officer in the executive department. Such revifion and con- 
 troul, we deemed radically inconfiftent with the independence of 
 that judicial power, which is vefted in the courts ; and, confequently, 
 with that important principle, which is fo ftrictly obferved by the 
 conftitution of the United States." 
 
 Extract from the opinion of chief jiiftice JAY, and judges GUSHING 
 and DUANE. 
 
 " The court were unanimoufly of opinion, 
 
 " Firfl, That by the conftitntion of the United States, the 
 government thereof is divided into three diftinct and independent 
 branches ; and, that it is the duty of each to abftainfrom, and oppofe, 
 encroachments on either. 
 
 " Secondly, That neither the legi/Jative nor the executive branches, 
 can conftitutionally aflign to the judicial any duties, but ftich as are 
 properly judicial, and to be performed in a judicial manner. 
 
 " Thirdly, That the duties affigned to the circuit court by the act 
 in queftion, arc not of that defcription ; and that the act itfelf does 
 not appear to contemplate them as fuch ; inafmuch as it fubjects the 
 decifion of thefe courts, made purfuant to thofe duties, firft to the 
 confideration and fufpenfion of the fecretary at war, and then to the 
 revifion of the legislature ; whereas, by the conjlitution, neither the fecre- 
 ta y at war, nor any other executive officer, nor even the legt/Iature, are 
 author ifed to Jit as a ct/urt of errors on the judicial afts or opinions of*. 
 tku court.
 
 MR. JAY's TREATY. 47 
 
 SUCH, upon the whole, are " THR FEATURES OF MR. 
 TREATY." It was not intended to protract this fketch of them to 
 fo great a length ; and yet, more circumftances are recollected, that 
 might have been inferted, than could, upon a fair rcconfideration, b2 
 retrenched. If it (hall, in any degree ferve the purpofes of truth, by 
 leading, through the medium of a candid investigation, to a fair, 
 honourable, and patriotic: decifion, the defign witli which it was written 
 will be completely accomplimed, whether RATIFICATION or REJEC- 
 TION is the refult. 
 
 But, before the fubje<5t is clofed, let the citizens of the union be 
 "warned from too credulous an indulgence of their prejudices and their 
 fears. The difcordant cry of party is loud ; and the phantoms of 
 war alTail the imagination : yet, let us not be deluded by ftratagern, 
 nor vanquimed by terror. The queition is not a quei'Uon between 
 party and party, but between nation and nation : it is not a quef- 
 tion of war or peace, between military powers ; but a queftion of 
 policy and intereil between commercial rivals. The fubject is too 
 momentous, to be treated as the foot-ball of contending fa&ions ; 
 it appeals from the pafflons to the judgment ; from the felfifhnefs to 
 the patriotifm of every citizen ! 
 
 That the Britifh treaty, or a Britifh 'war, is a necejjary alternative, 
 will be more fully controverted, if the writer's prelcnt intention of 
 delineating " FEATURES OF THE DEFENCE," (hall be carried into 
 effect. But, in the mean time, let a few felf-evident propofitions 
 contribute to relieve the public mind, from the weight of that ap^ 
 prehenfion. 
 
 i. The difpofition of Great Britain, manifefled by the order of the 
 6th of November, 1793, by the fpeech of Lord Dorchefrer to the 
 Indians, and by the repeated invafions made, under General Sim- 
 coe's authority, upon our territory, is naturally hojl'tle to the United 
 States. 
 
 z. Even if the United States could, by any means, foothe and con- 
 vert that difpofmon into amity and peace, the projected treaty is too 
 high a price to pay for fuch a change. 
 
 3. The rerufal to enter into the projected treaty with Great Bri- 
 tain, is not a jujl caufe of war; and if a pretence, only, is wanting, 
 it may be found in the toads at our feftivais, as well as in the acts of 
 our government. 
 
 4. But the ratification of the treaty will afluredly give umbrage to 
 another nation to an ancient ally. 
 
 5. If war is inevitable either with Great Britain, or ivrfh France, 
 it would be more politic for the ftate, more congenial to the fenti- 
 ments of the people, to engage the former, than the latter, power. 
 
 6. In cafe of a war with Great Britain, we have aflurance, that 
 France will aid us with all the energy of h<r triumphant a. ins. 
 
 7. In cafe of a war with France, we ought not to count upon the 
 affections, and we cannot rely upon the power, of Great Britain, to 
 befriend us.
 
 C 48 J 
 
 [FROM THE PHILADELPHIA GAZETTE.] 
 
 View of the Commerce of the United States , 
 as itjlands at prefent, and as it is fixed 
 by Mr* *Jays Treaty. 
 
 1. Actual State. 
 
 A MERICAN fhips from Europe enjoy a protecting duty of 
 /V 10 per cent, on the amount of duties on goods, wares, and 
 merchandises, imported mto the United States in foreign bottoms 
 from Europe, and of 30 to 50 per cent, on teas imported in foreign 
 bottoms from Afia or Europe, paid by foreign bottoms, more than 
 is paid on fuch goods imported in our own vefTels. Foreign bottoms 
 pay alfo 44 cents a ton on every voyage, more than is paid by Ame- 
 rican (hipping ; all which had been allowed by the federal govern- 
 ment, to encourage American {hip-builders, mariners, mechanics, 
 merchants, and farmers. 
 
 1. State by Treaty. 
 
 By treaty, America cedes to Great Britain, the right of laying 
 duties on our mips in Europe, the Weft Indies, and Afia, to coun- 
 tervail thefe, and engages not to encreafe her duties on tonnage on 
 this fide, fo as to check the exercife of this right : in confequence 
 Britifh mips may be put, at the difcretion of the Britim government, 
 on exaclly the fame footing, as American mips in the carrying trade 
 of Europe and Afia. 
 
 2. Annal State. 
 
 Americn mips, of any fize, now go freely to all the Britim Weft 
 Indies, fell their cargoes, and bring returns as it fuits them. 
 
 2. State by Treaty. 
 
 By treaty American mips are to be reduced to /evenly tons y in or- 
 der to be admitted in the Britim Weft Indies. 
 
 3. Adual State. 
 
 American fhips may now freely load melafTes, fugar, coffee^ co- 
 coa, or cotton, to any part of the world from the United States. 
 
 3. State by Treaty. 
 
 By treaty American fhips are to be totally prohibited this com- 
 merce, which is to be carried on under any flag but theirs. 
 
 4. ASual State. 
 
 American citizens can now go fupercargoes to India, fettle and 
 refide, and do their bufinefs there.
 
 VIEW OF THE COMMERCE, &c. 49 
 
 4. State by Treaty. 
 
 By treaty no American citizen can fettle or refide in thefe ports, 
 er go into the interior country, without fpecial licence from the local 
 government, who may, under colour of this, impofe what obftacles 
 they pleafe to the commerce. 
 
 5. Actual State. 
 
 America now enjoys the right of regulating commerce, fo as to 
 encourage one nation and difcourage another, in proportion to benefits 
 received, or injuries felt refpectively. 
 
 5. State by Treaty. 
 
 All this abandoned by the treaty fo far as refpefls Great Britain ; 
 no duties can be laid on Britifh goods but what muft apply to all 
 other nations from whom we import goods no embargoes on ex- 
 ports to Britifh ports, but what muft apply to all nations alike. 
 
 6. Alual State. 
 
 American fhips now freely navigate to the Britifh dominions in 
 India, and from thence proceed with cargoes to any part of the 
 world. 
 
 6. State by Treaty. 
 
 By treaty American mips are admitted as ufual into the Britifh 
 ports of India, but prohibited carrying any return cargoes except to 
 the United States ; prohibited alfo from the coaf ting trade in the 
 Britifh ports of Indza, from which they were not, that I know of, 
 before excluded. 
 
 7. A final State. 
 
 Timber for mip-building, tar, or rozin, copper in (heetsr, fails, 
 hemp, cordage, and generally whatever may ferve direclly to the 
 equipment of vefTels, not contraband by former treaties of the Uni- 
 ted States. 
 
 7. State by Treaty. 
 
 All thefe articles made contraband by this treaty. 
 
 8. Actual State. 
 
 American fhips carrying provifions, by America claimed as hav- 
 ing a free right of paflage to the ports of their deftination. 
 8. State by Treaty. 
 
 This claim now apparently waved ; fuch American fhips, when 
 taken, to be allowed indemnity of freight, demurrage, and a rea- 
 fonable mercantile profit, the amount whereof not afcertained. 
 
 9. ASual State. 
 
 American ports open to prizes made on Britain by France ; and 
 America poflefTed of the liberty to grant fimilar douceurs to other 
 aations, as fhe fees fit in future compacts with them. 
 9. State by Treaty. 
 
 American ports now opened to prizes taken by Britain from any 
 nation except France, but fhut to prizes taken from Britain by 
 Spain, or any other power not favoured in this way, by treaties al- 
 ready made ; of courfe difcouraging to our future negociations with 
 all powers, France and Britain excepted.
 
 5Q VIEW OF THE COMMERCE 
 
 IO. A3ual State. 
 
 American fhips allowed at prefent freely to enter Britifh ports in 
 Europe, the Weft Indies and Afia, but fliut out from the fea-ports 
 of Nova-Scotia and Canada. 
 
 10. Stately Treaty. 
 
 American fhips allowed to go into thefe ports, but under new 
 reflriclions of fize, in the Welt Indies, and of latitude of trade in 
 the Eaft Indies ; the ports of Halifax, Quebec, &c. ftill (hut to 
 America. 
 
 11. Aftual State. 
 
 American fhips thus partially allowed entrance into Britifh ports. 
 
 1 1 . Stute by Treaty. 
 
 Britifh fhips allowed univerfal entrance into all our ports. 
 
 1 2. ASuul State. 
 
 American fhips now fail, though not under naval protection, under 
 guarantee of all the Britilh effects pofTeffed here, which might be 
 made anfwerable for our floating property, if unjuflly feized on by 
 Great Britain in cafe of a war, fo much apprehended by the chamber 
 of commerce of New-York. 
 
 1 2. State ly Treaty. 
 
 By treaty, American fhips deprived of this guarantee ; fequeftra- 
 tions or confifcations being declared impolitic and unjuft, when ap- 
 plied to ftocks, or banks, or debts ; though nothing faid about them 
 when applied to fhips or cargoes. 
 
 13. AElual State. 
 
 Britifh debts now recoverable in the federal courts of the United 
 States, but repofmg on the folvency of the debtors only. 
 
 1 3. State by Treaty. 
 
 By treaty a new court of commifTioners opened on this fubjecl, with 
 immenfe power and guarantee of the United States, who muft meet, 
 indeed, at Philadelphia, but may adjourn where they pleafe. No- 
 thing faid of debts due to Americans in England, if, by legal im- 
 pediments, prevented from recovery there. 
 
 14. ASual State. 
 
 America fends Mr. Jay to recover redrefs for fpoliations on our 
 commerce actually fuftained. 
 
 14. State ly Treaty. 
 
 By treaty a court of commiflioners opened, who are to fit in Lon- 
 don without power of adjournment, as in the cafe of the commiffion 
 for debts. Americans muft, therefore, tranfport themfelves and 
 claims to London, and employ counfel there, to recover what the 
 commifiioners fhall think fit to allow them : admirable compenfation 
 indeed ! 
 
 15. Adu.'l State. 
 American fhips much plagued by Britifh privateers. 
 
 1 5. State by Treaty. 
 
 By treaty the privateerfmen are to give 15,00!. to 3000!. flerling. 
 fecurity for their good behaviour.
 
 OF THE UNITED STATES. $i 
 
 1 6. ASual State. 
 
 American citizens may now expatriate and fcrvc in foreign 
 countries. 
 
 1 6. St-te by Treaty. 
 
 By treaty they are declared pirates, if ferving againfl Great Bri. 
 tain ; but no provifion made to guard American feaman from being 
 forced to ferve in Britim mips. 
 
 17. A8ual State. 
 
 America pofTefles claims to a large amount on account of negroes 
 carried off, and the Weftern Poiis detained, in violation of the 
 treaty of 1783. 
 
 1 7. State by Treaty. 
 
 Thefe claims all waved by the treaty, without reference to the 
 merits of thefe pretenfions. 
 
 The cafting up of the above, is fubmitted to the Chamber of Com- 
 merce of New- York. 
 
 Errors, outftandings, and omiflions excepted, 
 Philadelphia, July 27, 1795. 
 
 FINIS,
 
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