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report the general state of instructions existing on the subject of commercial treaties.
Congress took into consideration the report of the Secretary of Foreign Affairs for immediately setting at liberty all the prisoners of war, and ratifying the Provisional Articles. Several members were extremely urgent on this point, from motives of economy. Others doubted whether Congress were bound thereto, and, if not bound, whether it would be proper. The first question depended on the import of the Provisional Articles, which were very differently interpreted by different members. After much discussion, from which a general opinion arose of ex treme inaccuracy and ambiguity as to the force of these articles, the business was committed to Mr. MADISON, Mr. Peters, and Mr. HAMILTON, who were also to report on the expediency of ratifying the said articles immediately."
MONDAY, APRIL 14th.
The Committee, on the Report of the Secretary of Foreign Affairs, reported as follows—Mr. HAMILTON dissenting. *
* His dissent was founded on his construction of the treaty, as stated in a paper handed to Mr. MADISON at the time. The following is a copy:
“The words such treaty are relative.
“The antecedents must either be the 'treaty proposed to be concluded between the Crown of Great Britain and the United States,' or 'the terms of peace to be agreed upon between Great Britain and France.'
"Let us see how it will read if we understand it in the first sense. The articles are 'to be inserted, and to constitute the treaty of Peace proposed to be concluded between the Crown of Great Britain and the United States ; but which treaty is not to be concluded (until terms of peace shall be agreed upon
First. That it does not appear that Congress are any wise bound to go into the ratification proposed. “The treaty” of which a ratification is to take place, as mentioned in the sixth of the Provisional Articles, is described in the title of those articles to be “a Treaty of Peace, proposed to be concluded between the Crown of Great Britain and the said United States, but which is not to be concluded until terms of peace shall be agreed upon between Great Britain and France." The act to be ratified, therefore, is not the Provisional Articles themselves, but an act distinct, future, and even contingent. Again, although the declaratory act entered into on the twentieth of January last, between the American and British Plenipotentiaries relative to a cessation of hostilities, seems to consider the contingency on which the Provisional Articles were suspended as having taken place, and that act cannot itself be considered as the “ Treaty of Peace meant to be concluded ;” nor does it stipulate that either the Provisional Articles, or the act itself, should be ratified in America; it only engages that the United States shall cause hostilities to cease on their part-an engagement which was duly fulfilled by the Proclamation issued on the eleventh instant; lastly, it does not appear, from the correspondence of the American between Great Britain and France and) until his Britannic Majesty shall be ready to conclude such treaty accordingly.'
“The words included in the parenthesis may in this case be omitted, and then the sentence will have no meaning.
"But if the words such treaty are construed as relative to the words terms of peace, the meaning will be plain; and if terms of peace have been agreed upon between France and Britain, then the contingency has happened on which the proposed treaty between America and Britain was to take effect.”. *See his change of opinion expressed in the debates of April tho sixteenth. Vol. I.-28 *
Ministers, or from any other information, either that such ratification was expected from the United States, or intended on the part of Great Britain; still less that any exchange of mutual ratifications has been in contemplation.
Second. If Congress are not bound to ratify the articles in question, the Committee are of opinion, that it is inexpedient for them to go immediately into such an act; inasmuch as it might be thought to argue that Congress meant to give to those articles the quality and effect of a definitive treaty of peace with Great Britain, though neither their allies nor friends have as yet proceeded further than to sign Preliminary Articles; and inasmuch as it may oblige Congress to fulfil immediately all the stipulations contained in the Provisional Articles, though they have no evidence that a correspondent obligation will be assumed by the other party.
Third. If the ratification in question be neither obligatory nor expedient, the Committee are of opinion, that an immediate discharge of all prisoners of war, on the part of the United States, is premature and unadvisable; especially, as such a step may possibly lessen the force of demands for a reimbursement of the suns expended in the subsistence of the prisoners.
Upon these considerations, the Committee recominend that a decision of Congress on the papers referred to them be postponed.
On this subject, a variety of sentiments prevailed.
Mr. DYER, on a principle of frugality, was strenuous for a liberation of the prisoners.
Mr. Williamson thought Congress not obliged to
discharge the prisoners previous to a definitive treaty, but was willing to go into the measure as soon as the public honor would permit. He wished us to move, pari passu, with the British commander at New York. He suspected that that place would be held till the interests of the Tories should be provided for.
Mr. HAMILTON contended, that Congress were bound, by the tenor of the provisional treaty, immediately to ratify it, and to execute the several stipulations inserted in it; particularly that relating to a discharge of prisoners.
Mr. BLAND thought Congress not bound.
Mr. ELLSWORTH was strenuous for the obligation and policy of going into an immediate execution of the treaty. He supposed, that a ready and generous execution on our part would accelerate the like on, the other part.
Mr. Wilson was not surprised that the obscurity of the treaty should produce a variety of ideas. He thought, upon the whole, that the treaty was to be regarded as “contingently definitive.”
The Report of the Comınittee being not consonant to the prevailing sense of Congress, it was laid aside.
Tuesday, April 15TH.
The ratification of the treaty and discharge of prisoners were again agitated. For the result in a unanimous ratification, see the secret Journal of this day; the urgency of the majority producing an acquiescence of most of the opponents to the measure."
Wednesday, April 16TH.
Mr. HAMILTON acknowledged that he began to view the obligation of the provisional treaty in a different light, and, in consequence, wished to vary the direction of the Commander-in-Chief from a positive to a preparatory one, as his motion on the Journal states."
Thursday, April 17TH.
Mr. Madison, with the permission of the Committee on Revenue, reported the following clàuse, to be added to the tenth paragraph in the first report, viz:
“And to the end that convenient provision may be made for determining, in all such cases, how far the expenses may have been reasonable, as well with respect to the object thereof, as the means for accomplishing it, thirteen commissioners-namely, one out of each State—shall be appointed by Congress, any seven of whom (having first taken an oath for the faithful and impartial execution of their trust) who shall concur in the same opinion shall be empowered to determine finally on the reasonableness of the claims for expenses incurred by particular States as aforesaid; and, in order that such determinations may be expedited as much as possible, the commissioners now in appointment for adjusting accounts between the United States and individual States shall be instructed to examine all such claims, and