CONGRESS.
■JIOUSE OF REPRESENTATIVES.
The Speech of Mr. Smith, fS. C.) on
the motion to finite out the Jixth fedim cf
the bill, For the ftunijlmcnt of certain
crimes againfl the United States, which
foot! as follows, to.
" And be it further cnadled. That it
(hall not be lawful to fell, within the U
nitcd States, any veflel or goods captnrcfl
from 1 prince or state, or from the sub
je£ts or citizens of a prince or state, with
whom the United States are at peace,
which veflel or goods (hall hare been cap
tured by any other foreign prince or state,
or by the fubjefts oi citizens of such
prince or state ; unless such veflel and
goods (hall have been firft carried into a
port or place within the territory of the
prince or state to which the captors be
long, but such veflels and goods (hall be
carried out of the United States, by those
who (hall have brought them' in. And
the sale of any veflel or goods prohibited
as aforefaid, (hall be utterl/ void.".
This question ought to be considered
under two points Of view, I ft. As to the
right of France derived from the treaty ;
2d. As to the expediency of admitting the
pra£tiee, independently of any existing
right. I ft. As to the right. This must
result either from th<; words of the treaty,
or from such strong implication as cannot
be refilled. It is evident that the right
of France to fell prizes in our ports is
not given by the terms of the treaty.—
The only -articles from which it can be
pretended to be derived-are the 17th and
22(1. The 17th art. is in these words,
" It (hall be lawful for the (hips of war
of either party, and privateers, freely to
carry whitherfover they please the (hips
and goods taken frpm their enemies, &c.
they may hoist fail at any time, and de
part and carry their prizes to the places ex
prefTed in their commiflions, which the
commanders of such (hips of war (hall be
obliged to (hew, &c." The true con
ftrudlion of this articleis the very reyerfeof
the right contended for ; it is a permif
lion to conduct whitherfover they please,
the (hips and gooijs laken from the ene
my, without paying any dyty : It is evi
fTOt
on the contrary, a departure to some other
place, always to be exprelTed in their com
mission, where their validity is to be fi
nally adjudged. And this conftrudlion is
given to the article by Mr. Jefferfon, the
Secretary of State, in his correspondence
with Mr. Morris our Minister in France,
and with Mr Genet, page 63, 67. where
he fays, The article does not give the
right at all," and again, " The admission
lo fell here the prizes made by France on
her enemies is unJUpulated in our treaties
and unfounded in her own pratlfe or in I
that of other nations, as we believe."
* No right can be deduced from the 22d
article but by conftru&ion and implica
tion ; the terms of that are, It (hall
not be lawful for any foreign privateers,
&c. to fit their (hips, &c. to fell what
thty have, taken, nr jn any other manner
whatsoever to exchange their (hips, mer
chandize or any other lading, See."
From this negative ftipiuation as to the
enemies of France, an affirmative right is
attempted to be inferred in favor of
Fiance herfelf; but the inference is a
falfe one. Here I again recur to the
authority of the former Secretary of State,
whose reasoning with refpett to the right
of fitting out privateers applies to this
cafe, the right to fell prizes under this arti
cle (landing precisely on the fame foot
ing as the right to Jit out privateers. In
page 60 of the printed cyrrefpondence,
Mr. Jefferfon fays, after quoting the
v word*, of the article, « translate this from
the general terms in which it here stands
into the special cafe produced by the pre
fcnt war," privateers not belonging to
I ranee or the United States, and having
commiflions from the enemies of one of
them, " are, in the present state of things,
Bntifli, Dutch and Spanish privateers
substituting these then for the equivalent
term, it will (land thus,"" It (hall not
b--lawful for Britilh, Dutch or Spamfh
privateers to fit their (hips in the ports of
th- United States."
Is this an express permifiio'n to France
to do it ? Does the negative to the ene
mies of France, and silence as to France
herfelf, imply an affirmative to France ?
Certainly not; it leaves the question, as
to France, open and free to be decided
according to circumstances, and if the par- ai
i ties> had meant an affirmative itipularibn, oi
they would have provided for ft exprefsiy ; vv
they would never have left lo important a ti
point to be inferred from mere lilence or
implication. Suppose they bad delired to v
llipulate a refulal to their enemies, btft u
noticing to themselves, what form of ex- v
prefiion would they have used ? Certainly t
the one they have used, an express ftipu- b
lation as to their enemies, and (ilence as" 1
to themselves. And such an intention cor- It
responds not Only with the words but the t
cireumttances oi the times. It was of va- 1
lue to fiach pttrty to exclude its enemies i
from arming in the ports of the other, and (
could in no cafe embarrass them. They 1
therefore stipulated so far mutually ; but c
each might hp embarrassed by permitting t
the other to arm in its ports •, they there- t
fore would not stipulate to permit that." i
This reasoning proved so conclijfively the <
non-existence of the right to fit out priva- :
teers in our ports, that the French go- ]
vernment withdrew their claim, inftrudled :
their new minister to express their appro- i
bation of the steps pursued by our execu
tive, and ordered him to recall all the,
commifiions of privateers illegally fitted
out. Now there is not an argument againil 1
the to fit out privateers which does
not apply with equal force against that of
felling prizes ; the fame words are used in
the article for both cases, and no inferehce
can be drawn in favor of the one which
may not equally be drawn in favor of the
other. The right to fit out privateers
haying been altogether abandoned by
France, it would be not a little furpnjMng
that the right to fell prizes should now find
advocates in our councils.
Admitting, that, by a forced construc
tion of either of the two above mentioned
articles of the treaty, an implication might
arise favorable to the right, yet if the itep
ping beyond the line of ftritt obligation in
favot of one belligerent power, be deemed
a departure from the line of neutrality, it
may well be asked, (hall we hazard the
blessings of peace and fubjeft ourselves to
the calamities of war by inference, impli
cation or confti uction ?
But let it be conceded that either or
both the articles import in. the' cleared
manner the right contended for, I am rea
dy to prove that the treaty quo ad that
grant, would be void and of no effefi. .
nited States was founded on principles of
perfect reciprocity; we are not bound by
any itipulation, which was intended to be
mutual, if France was not equally bound
by it ; but France at the time of entering
into this treaty, was restrained by antece
dent and exijling treaties from granting to
the United States the right of felling their
prizes in the ports of France; the United
States would therefore be absolved from
the ilipulation, supposing it to exist.
These several points can be clearly esta
blished.
The preamble to the treaty in question
has these llrong expreflions—" His most
chriitian majesty and the United States
have judged, that the said end could not
be better obtained than by taking for the
basis of their agreement, the mnjlper/eft
equality-and reciprocity,, and by carefully
avoiding all these burdensome preferences
which are usually sources of debate, em
barrafTment and discontent, by leaving alio
each party to make, refpedting commerce
and navigation, those interior regulations
which it shall find most convenient to it
felf, and by founding the advantage of
commerce folcly upon reciprocal utility."
It is laid down by Vattel, page 302,
that 'a sovereign already bound by a treaty
cannot make others contrary to the firft ;
the things about which he has entered in
to engagements are no longer at his dis
posal; if it happens that a pojlerior treaty
is found, in foncie point, to contradi<sl one
that is more ancient, the new treaty is null
■with refpea to that point, as disposing of a
thing that is no longer in the power of
him who appears to dispose of it."
Ihe treaty of Utrecht, between France
and England in the year 1713, Itipulated
in the 15th art. that, "it (hall not be
lawful tor any foreign privateers, &c. who
have commissions from any prince or state
in enmity with either nation, to fit their
fhips.n the ports of one or the other of
' T » P r rtl "' "-T'" what 'h
taken, &c » In the event then of a war
between the United States and Great Bri
tain, France being neutral, we fliould have
from r nr a,nCd thC treat y of Utrecht,
, from felling our prizes in the ports of
recprocity, which is the ba
| thc trea 'y» is done away, and vre
ire now called upon for 3 performance on
) U r part, df a mutual stipulation, from
sfjiich the other contracting power is by
treaty and the law of nations absolved.
If it be said that the treaty of Utrecht
was, on account of Intervening wars, not
in force at the time our treaty with France
was entered into. I will remark in reply
that the treaty of Utrecht was recognized
by France, and revived by" the treaty ot
Paris in 1763, and that it is an acknow
ledged maxim of the law of nations that
the revival at a peace of at treaty which
has been suspended by a state of war, re
llores the contra&ing parties to the
(ame rights as if the treaty had never
been suspended. Moreover, in the treaty
of Paris in 1763 it rs said, " that the
treaty of Utrecht ill all serve as a basis to
that treaty, and is renewed and confirmed
in the bed form, as if it were there insert
ed word for word, so that it is to be ex
a£Uy observed in future, &c. and the said
parties declared that they will not fuffer
any privilege, favor or indulgence to fub
fiit, contrary to the above treaty, See."
But what is itill more conclusive the
veiy treaty between Franceand the United
States refers to the treaty of Utrecht as
being in full force at that time ; in the
1 oth article, the United States are ref
ftrained from disturbing the right of fiftie
ry, belonging to France "on that part
of the coast of Newfoundland which is
designated by the treaty oj Utrecht,
npr in the rights, relative, to all and cach
of thi ides which belong to his most Chris
tian Majesty, the whole conformable to
the true sense of the treaties of Utrecht and
Paris.'" France was at peace with Eng
land in Feb. 1778, when our treaty was
made, the treaty of Utrecht was confe
qnently at that time in full force. But -
. France was likewise restrained from grant
ing us this right by the terms of the Fa
mily compaEt wit.h Spain, which was uri
queftionably in full force at the time of
our treaty.
The remarks of Mr. JefFerfon on the
fubjeft of fitting out privateers, are so
applicable and pointed, that I (hall again
quote him ; page 60, he fays, " Let us
go back to the state of things in France
when this treaty was made, and we lhall
find feveial cases, wherein France could
not have permitted us to arm in her ports
frWe might have ad(}ed. gr ojir
Spain. We know that by the treaties be
tween France and Spain, the former could
not permit the enemies of the latter to
arm in her ports. It was honest in her
therefore not to deceive us by such a sti
pulation. Suppose a war between these
states and Great Britain. By the trea
ties between France and Great Britain,
in force at the Jignature of ours, we could
not have been permitted to arm, in the
ports of France. She could not then
have meant m this article, to give us such
a, right. She has manifefted the fanje
sense of it again, in her subsequent treaty
with England,.made eight years after our's,
flipulating in the 16th Art. of it as in
our 22d that foreign privateers, not being
fubjeits 'oj either crown, should not arm
against either in the ports of the other.
It this had amounted to an affirmative fti
pulatiou, that the fubj--&s~of the other
crown might arm in her ports againjl us,
it would have been in diredl contradiction
to her 22d article with us. So that to
give to these negative stipulations an affir
mative effect, is to render them inconfilt
ent with each other, and with goodfaiih ;
to give them only their negative & natural'
effeift is to reconcile thera to one another,
and to good faith, and is clearly to adopt
the fenle in which France herfelf has ex
pounded them. We may justly conclude
then, that the article only obliges us to
refufe this right in the present cafe, to
Great Britain and the other enemie« of
r ranee , it does not go on to give it to
France, either exprcf,ly, 0 r by implicati
on ; we may then reful'a it."
(To be continued.)
From the' European Magazine for March
1794-
Two Letters from General IVaJhington to
Lord Buchan.
LETTER I.
Philadelphia, May i, 1792.
My Lord, *
I lhould have had the honor of acknow
ledging sooner the receipt of your letter jSth
ot June last, had I not concluded to defer do
ing it till I could announce to you the tranf-
P° rtri ' it > whicl > has been just
by Mr. Robinson (of New-York,)
Who has also undertaken to forward it. The
manner of the execution ef it does no dif
credit, I am told, to the artist; of waofi
fliill favorable mention had been mad? to
me. I was further induced to entnift the
execution to Mr. Robinson, from his having
informed me that he had drawn others for
your Lord (hip, and knew the size which
would best suit yonr collfedtion.
I accept with feniibility and with
tion the tignificant present of the box* which
accompanied your Lordlhip s letter.
Jn yielding the tribute due from every
lover of mankind to the patriotic and heroic
virtues of which it is commemorativb, t ul
timate as I ought the additional value whidi
it derives from the hand that sent it, and
my obligation for the fentimenis that induced
that transfer.
I will, however, a(k that you will exempt
me from compliance with the request rela
ting to its eventual destination.
In an attempt to excite your wish in this
particular, I (hould feel embarr aliment from
a just comparison of relative pretentions, and
(hould fear to risk injustice by so marked a
preference. With fentimenis of the truest
esteem and consideration, I remain your
Lordlhip's most obedient servant,
G'. WASHINGTON.
Earl of Buchan.
L E T T E R 11.
Philadelphia, April 1793.
My Lord,
The favorable wi(hes which your Lord
lhip has exprefled for the prosperity of this
young and rising country, cannot but be
gratefully reci»ived by all its citizens, and
every lover of it; one mean to the contri
bution of which, and its happiness, is, very
judiciously pourtrayed in the following.words
of your letter, " to be little heard or in the
great word of politics." These words, I
can allure your Lordlhip, are exprellive of
my L-ntiments on this head; and I believe
it is the lincere wilh of United America, to
have nothing to do with the political in
trigues or the squabbles of European nations;
but on the contrary, to exchange commodi
ties, ahd live in peace and amity with all the
inhabitants of the earth : and this I am per
suaded they will-do, if rightfully it can be
done. To administer juflicelo, and receive
it from every power they are connected with,
will, I hope, be always found the most pro
minent feature m the administration of this
country; and I flatter myfelf that nothing
(hort bf imperious neceflity can occation a
breach with any of them. Under l'uch a
system, if we are allowed to pursue it, the
agriculture and mechanical arts —the wealth
and population of these states will increase
with that degree of rapidity as to baffle all
calculation, and mutt :aa.]dea your
Lordlhip can, hitherto, have eiUerfJnwtrw*
the occalion. To evince that oui , "l ~
tfceTincuy- ol' fending you the plan of a new
city, situated about the centre of the union
of these states, which is defined for the
permanent feat of the government: and we
are at this moment deeply engaged, and far
advanced in extending the inland navigation
of the river ) on whieh it stands,
and the branches thereof, through a tract of
as rich country for hundreds of miles as any
in the world. Nor is this a folkary instance
of attempts of this kind, although it is the
only one which is near completion and in
partial ule. Several other very important
ones are commenced, and little doubt is en
tertained that in ten years, if left undilUirb
ed, we (hall open a communication by water
with all the lakes northward and weltwaid
of us, with which we have territorial con
nexions: and an inland, in a few years more,
from Rhode-Ifiand to Georgia incluiively,
partly by cuts between the great bays,and
founds, and partly between the islands and
fand-bmks, and the main, from Albemarle
Sound to the River St. Mary's. To these
may also be added, the erection of bridges
over considerable rivers, and the commence
ment of turnpike-roads, as further indicati
ons of the improvement in hand.
* A box made of the oak that afforded
fhglter to Wallace after the battle of Falkirk.
Foreign Intelligence.
BRUSSELS, April 8.
" Since the arrival of the Courier from
Vienna, on the 2d instant, we know for
certain that the King of Prtiflia with
draws his troops from the army of the
Rhine, that is to fay, the 25,000 men
mainthined by him during the la ft cam
paign, besides the contingent which the
ot Ratifbon promised to pay
monthly—a promise never kept, now dis
puted, and in the late fittings of the Diet
referred for consideration till peace (hall be'
restored The King .of Prussia, there
tore, will furinfh only his contingent as
elector of Brandenburg for the pefent
campaign ; and it is yet uncertain whether
or not he will gi ve the 15,000 men with
which he is engaged to aid Great Britain,
& the; tales General in certain cases beimr
very id defiged in the treaty of alliance.
" 1 his unexpected falling off has fo
dilconcerted the intended plans that nil
open,n ons have buen for feme time at *