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parties may carry whithersoever they please the prizes made of their respective enemies, without being obliged on entering the ports of each other to pay fees, or being detained or seized or subject to search, except to prevent infractions of the laws of revenue, navigation, and commerce, or having cognizance taken of the validity of their prizes, and with free liberty to depart to the places mentioned in their commissions which they are to show.
V. That no shelter or refuge shall be given to such as have made prizes of each other's ships or vessels, but if forced by stress of weather to enter, their departure is to be hastened.
VI. That while the parties continue in amity, they will make no future treaty inconsistent with these two articles. But there is this express proviso, that nothing in the treaty shall be construed or operate contrary to former and existing public treaties with other sovereigns or states.
Hence while on the one hand these articles make no unreasonable stipulations in favor of Great Britain, they can by no possibility interfere with prior stipulations to France or any other power. If, consequently, there is any repugnancy, the treaty with Great Britain must give way to those prior treaties. There is only one particular in the conduct hitherto observed towards France in which the treaty with Great Britain will produce an alteration, that is the selling of prizes in our ports; because this indulgence has been granted not upon the ground of any obligation to do it to be found in our treaty with France, but upon that of there being no law of the United States against it. The 24th article of the present treaty will be a law against it, and will restrain it.
But nothing can be more proper; and I well remember, that when it was concluded to permit the selling of prizes, it was unanimously regretted that the Executive, for want of law, could not do otherwise. Because the measure had an unneutral aspect, permitting to one party a military advantage which our treaty with that party did not leave us at liberty to extend to the other; and was of very questionable propriety. The permission was of a nature to give much dissatisfaction to the other powers. A revocation of it, therefore, by a treaty with one of those powers, is unexceptionably equitable. The clause which restrains the making of future treaties in the given case, has been grossly misunderstood. It is expressly confined to the two articles, and, for aught I see, is nugatory. For a treaty implies of itself, that while the contracting parties remain in amity, they shall make no subsequent treaty inconsistent with the prior one between those parties.
Articles XXVI., XXVII. These articles need no particular comment. They are liberal and equitable, and interfere with no interest or duty. The part which regards ambassadors and ministers, is calculated to avoid very delicate embarrassments, and to exclude intrigues and bad conduct in foreign ministers. It would be a valuable article in all our treaties.
Article XXVIII. The effect of this article is to enable either party in two years after the termination of the existing European war, to put an end to all the articles of the treaty except the first ten.
This, upon the whole, is a desirable ingredient. It makes the commercial part of the treaty a mere experiment of short duration, and enables each party, if any part of it should be found to work amiss, or if it thinks that upon the whole the treaty is not sufficiently advantageous, to put an end to it unless the parts not satisfactory can be amended, or the additional provisions which are desired can be agreed upon.
Article XXIX. This, which is the last article, provides merely for the ratification, and looks to future negotiations for more beneficial arrangements.
To these particular views of the different articles of the treaty,. the following general views may be added.
The truly important side of this treaty is, that it closes, and upon the whole as reasonably as could have been expected, the controverted points between the two countries; and thereby gives us the prospect of repossessing our western posts, an object of primary consequence in our affairs, of escaping finally from being implicated in the dreadful war which is ruining Europe, and of preserving ourselves in a state of peace for a considerable time to come.
Well considered, the greatest interest of this country in its external relations, is that of peace. The more or less of commercial advantages which we may acquire by particular treaties, are of far less moment. With peace, the force of circumstances will enable us to make our way sufficiently fast in trade. War, at this time, would give a serious wound to our growth and prosperity. Can we escape it for ten or twelve years more, we may then meet it without much inquietude, and may advance and support with energy and effect, any just pretensions to greater commercial advantages than we may enjoy.
It follows that the objects contained in the permanent articles are of real and great value to us. The price they will cost us in the article of compensation for the debts, is not likely to bear any proportion to the expenses of a single campaign to enforce our rights. The calculation is therefore a simple and a plain one. The terms are no way inconsistent with national honor. As to the commercial arrangements in the temporary articles, they can be of no great importance either way; if it were only for the circumstance that it is in the power of either party to terminate them within two years after the war. So short a duration renders them unimportant, however considered as to intrinsic merit.
Intrinsically considered, they have no very positive character of advantage or disadvantage. They will in all probability leave the trade between the two countries where it at present is.
There is however one material circumstance in which this will not happen. The XVth article declares that there shall be no prohibition of the importation of, or exportation to and from the respective territories of the contracting parties, which shall not equally extend to all other nations. This permits us to carry to the British dominions any article the growth or manufacture of another country, which may be carried from such country to those dominions. This is a serious innovation on the British navigation act, and an important privilege to us.
It is to be remarked, however, that it does not secure to us the continuance of these discriminations in our favor, compared with foreign powers, which have in practice existed; but as these discriminations have always been revocable at the pleasure of the other party, and are evidently founded on the interest that party has to procure the supply from us, rather than from other quarters, the inference is that the security for the continuance of the advantage is as great as before.
The obstacle to its becoming matter of stipulation was, that it was deemed to be inconsistent with treaties with other powers.
Comparing this treaty with the commercial treaties heretofore entered into by the United States, the real advantage is on the side of the former.
As to the European dominions of the different powers, the footing will be essentially equal.
As to their colonies, Great Britain gives us greater advantages by this treaty, than any other nation having colonies by its treaty. There is nothing in any of our other treaties equivalent to the advantages granted to us in the British East Indies. To this may be added the advantages contained in the Canada article.
Against this may be set the stipulation that free ships shall make free goods; and the extended enumeration of contraband; but besides that these are provisions relative to a state of war, our experience in the present war, in reference to France, has shown us that the advantages expected are not to be counted upon.
Since then the permanent articles are of material consequence, the temporary ones of small importance; since our faith is preserved with other powers; since there are no improper concessions on our part, but rather more is gained than given, it follows that it is the interest of the United States that the treaty should go into effect.
But will it give no umbrage to France ?
engagements with her remain unimpaired, and because she will still be upon as good a footing as Great Britain. We are in a deplorable situation if we cannot secure our peace, and promote our own interests, by means which not only do not derogate from our faith, but which leave the same advantages to France as to other powers with whom we form treaties. Equality is all that can be claimed from us. It is improbable that France will take umbrage, because there is no cause given for it; because there is no disposition on her part to break with us, and because her situation forbids a breach.
But will it not hinder us from making a more beneficial treaty with France ?
This can only turn upon the question of equivalents to be given by us.
As to this, though our treaty with England would prevent in many particulars our giving preferences to France; yet there are still important points from the natural relations of commerce, which are open to arrangements beneficial to France, and which might serve as equivalents.
There is not leisure to enter into the detail, or this might be shown. It may however be mentioned, by way of example, that we may lower, or remove wholly, the duties on French wines, which would be one important item.
But it would be always very unwise to refrain from doing with one power, a thing which it was our interest to do, because there was a possibility that some other power might be willing to make a better bargain with us.
What evidence has France given that she is disposed to make such better bargain? All that she has hitherto proffered under her present government, has contemplated as the consi. deration our becoming parties to the war. As she will and ought to calculate her own interest, we ought to dismiss the expectation of peculiar favors. Favors, indeed, in trade, are very absurd, and generally imaginary things. Let it be remembered, too, that the short necessary duration of our treaty, leaves us a wide field future and not remote. But upon the whole, we shall be least likely to be deceived, by taking this as the basis of our