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either of the said descriptions, it shall then be lawful for the President of the United States to cause the retaliations to be executed on any British subject or subjects wherever found and whether taken in arms or not against the United States: Provided, That in every case the act or acts to be retaliated and the liability of the persons to suffer the retaliation shall appear to the satisfaction of a courtmartial, of which three field officers at least shall make a part.
(Annals, 12th Cong., 2d sess., 18.)
[See preceding page.]
February 2, 1813. On message as to foreign relations, Mr. Campbell reported as follows: A BILL vesting in the President of the United States the power of retaliation.
That in all and every case wherein during the present war between the United States of America and the United Kingdom of Great Britain and Ireland any violations of the laws and usages of war among civilized nations shall be or have been done and perpetrated by those acting under the authority of the British Government on any of the citizens of the United States or persons in the land or naval service of the United States the President of the United States is hereby authorized to cause full and ample retaliation to be made, according to the laws and usages of war among civilized nations, for all and every such violation as aforesaid.
SEC. 2. That in all cases where any outrage or act of cruelty or barbarity shall be or has been practiced by any Indian or Indians in alliance with the British Government, or in connection with those acting under the authority of the said Government, on citizens of the United States or those under its protection, the President of the United States is hereby authorized to cause full and ample retaliation to be done and executed on such British subjects, soldiers, seamen, or marines, or Indians in alliance or connection with Great Britain, being prisoners of war, as if the same outrage or act of cruelty or barbarity had been done under the authority of the British Government.
(Annals, 12th Cong., 2d sess., 18, 70, 71.)
THIRTEENTH CONGRESS, THIRD SESSION.
February 28, 1815. On message of President recommending certain regulations respecting American seamen, Mr. Bibb reported as follows:
That they fully accord in the policy recommended, of avoiding, by prudent regulations, the occurrence of circumstances which may disturb a liberal intercourse with foreign nations. They are, moreover, persuaded that the navigation of American vessels exclusively by American seamen, either natives or such as are already naturalized, would not only have the tendency to render our commerce and navigation independent of the service of foreigners, but that it would be calculated to remove the pretext under which the American navigation has heretofore been interrupted.
But while the committee consider the iub;ect of the President's message highly important, they regret that th session of Congress is so near its close that questions affecting the foreign as well as the domestic policy of the nation can not now receive the deliberate and full examination to which they are entitled.
(Leg. Jour., p. 673; Am. St. Pap., vol. 3, p. 750.)
[See pp. 7, 10, 12, 15, 17, 18, 31, 77, 196.)
March 3, 1815. On the President's message as to unauthorized mode of warfare, adopted by the enemy on the plea of retaliation, Mr. Bibb reported as follows:
That, although the war has happily terminated, they deem it important to rescue the American Government from unworthy imputations with which it has been assailed during its progress. They have, therefore, endeavored to ascertain whether the destruction of York, in Upper Canada, and other cases assumed by our late enemy as authorizing a departure from the settled rules of civilized warfare were of a character to justify or extenuate their conduct.
From the results of the inquiries of the committee, manifesting to the world that the plea which has been advanced for the destruction of the American Capitol and the plunder of private property is without foundation, and will be found in the communications of the Secretaries of the Departments of War and Navy, and of General Dearborn, commander of the American forces in the attack on York, herewith submitted.
[See as above.]
February 15, 1816. Mr. Bibb, from the Committee on Foreign Relations, to whom was referred the resolution
That the Senate recommend to and advise the President of the United States to pursue further and friendly negotiations with His Britannic Majesty for the purpose
First. Of opening and establishing on a satisfactory footing the navigation, trade, and intercourse between the United States and His Majesty's colonies in the West Indies and on the Continent of America.
Second. Of reopening to the United States the navigation of the river St. Lawrence between the northern boundary and the city of Quebec; of opening to them the navigation of that river between Quebec and the ocean, and obtaining for the trade of the United States in that quarter, by the grant of a suitable equivalent, a place of deposit on either bank of the St. Lawrence within the province of Lower Canada.
Third. Of abolishing the duties iinposed on goods and merchandise exported from His Majesty's European dominions to the United States, or of reserving to them a right to countervail the same by other and adequate duties, and of placing the vessels of both parties on the same footing in respect to the amount of drawbacks,
Fourth. Of agreeing on and establishing adequate stipulations for the protection of American seamen from British impressment.
Fifth. Of defining the cases which alone shall be deemed lawful blockades.
Sixth. Of enumerating the articles which alone shall be considered contraband of war.
Seventh. Of providing suitable regulations for the prosecution of neutral trade with the colonies of the enemy of either party.
Eighth. Of protecting the vessels and merchandise of each from loss or damage by reason of the retaliatory decrees of either against a third powersubmit the following report:
The view which the committee have taken of the subject renders an examination of the propositions in detail unnecessary. They have confined their inquiries to the considerations, first, whether there be any circumstances which call for the proposed advice, and, secondly, whether there be not serious objections to the interference of the Senate in the direction of foreign negotiations.
In relation to the first branch of inquiry, it is deemed important to ascertain whether the Executive has duly attended to the objects comprised in the resolution and whether the advice of the Senate will furnish aid to his future exertions.
By recurring to documents in possession of the Senate it will be seen that the most unremitted efforts have been employed to obtain satisfactory arrangements upon the points concerning which the advice is proposed. The committee need not refer to the volumes of instructions and correspondence which have been published. They will advert only to the late negotiations at Ghent and London.
The attention of the Executive appears to have been directed, in those negotiations, to two objects-peace and commerce; and authority was given to our ministers to form a treaty for each. By the letter of April 15, 1813, they were instructed to provide against impressment and illegal blockades; to restrict contraband of war to its just limits; to remove restraints on our commerce with enemy colonies; to prohibit the seizure of vessels returning from an enemy's port laden with innocent articles, on the pretext of their having carried thither contraband of war, or on their passage from one port of an enemy to another, or from the port of one independent nation to that of another; to exempt our merchant vessels from the necessity of sending their boats with men and papers on board a British ship of war for the purpose of search. This instruction provides in explicit terms for Nos. 4, 5, 6, and 7 of the resolutions, and by obvious inference for No. 8; for if neutral rights are defined and secured in the instances above specified, the injury suggested in that number could never occur.
The letter of April 27, 1813, which, with other documents, accompanies this report, and which authorized the negotiation of a treaty of commerce in the event of concluding a treaty of peace, directs the attention of our ministers to all the objects of the motion. They are instructed by it to endeavor to open to our commerce every part of the British dominions, on a footing of reciprocity and equality; and are referred, in aid of their own experience and knowledge of the subject, to the light to be derived from the treaty of 1794 and its effect on the general commerce of the country; to the instructions given to Messrs. Monroe and Pinkney, April 17, 1806; to the project of a treaty signed by them on the 31st of December of the same year; and to the subsequent remarks and instructions of the Executive respecting it. By this instruction every subject which could be considered a proper object of arrangement between the United States and Great Britain was committed to the American ministers, and all the light which the labor and talent of preceding times had afforded was communicated as their guide.
The correspondence between the ministers of the United States and those of Great Britain at Ghent and London, and the communications of the former to the Department of State, furnish satisfactory evidence that no effort which belonged to either negotiation was neg
lected, and that the failure to arrange the subjects embraced by the resolution was owing to the manifest indisposition of the British plenipotentiaries to concur in any satisfactory stipulations concerning them. If, therefore, the committee are correct in stating that the resolution communicates no information not already known to the President, and that he has been faithful in the discharge of his duty, a sufficient pledge is afforded that his exertions will be continued for the future. And this pledge is strengthened by the sentiment expressed in his communication to Congress at the commencement of the present session.
Whether this be the proper moment for renewing negotiations upon the points presented by the resolution, or whether the British Government is now more disposed to arrange them on just and equal conditions than it was in the negotiation lately terminated at London, are questions which the committee have not the information necessary to determine. But if any evidence of such a disposition should appear, it can not reasonably be doubted that the Executive will seize all thé advantages it may disclose.
Is it probable that the proposed advice will aid his exertions? It can not be presumed that he entertains any doubt concerning the opinion of the Senate with respect to the interests comprised in the motion; and the committee do not perceive how the expression of solicitude on the part of the Senate in relation to the objects about which no difference of opinion exists can afford any aid whatsoever. Every nation, in making contracts, is supposed to consult its own interests; and it is believed the history of the world does not furnish an example of one party yielding its pretensions in consequence of the disclosure of unusual solicitude by the other party. Should, therefore, the proposed advice be adopted and made public, it does not appear that any beneficial effect would be produced; and if it be kept secret, as is usual in executive business (supposing it to be given by the Senate as a branch of the executive), it would be wholly nugatory.
The committee having endeavored to show that the resolution is unnecessary, they proceed to submit some positive objections to its adoption.
If it be true that the success of negotiations is greatly influenced by time and accidental circumstances, the importance to the negotiating authority of acquiring regular and secret intelligence can not be doubted. The Senate does not possess the means of acquiring such intelligence. It does not manage the correspondence with our ministers abroad, nor with foreign ministers here. It must, therefore, in general, be deficient in the information most essential to a correct decision.
The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations, and must necessarily be most competent to determine when, low, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct he is responsible to the Constitution. The committee consider this responsibility the surest pledge for the faithful discharge of his duty. They think the interference of the Senate in the direction of foreign negotiations calculated to diminish that responsibility, and thereby to impair the best security for the national safety. The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch. A division of opinion between the members of the Senate in debate, on proposi
tions to advise the Executive, or between the Senate and Executive, could not fail to give to the nation with whom we might be disposed to treat the most decided advantages. It may also be added that if any benefit be derived from the division of the legislature into two bodies, the more separate and distinct in practice the negotiating and treaty-ratifying powers are kept, the more safe the national interests.
The committee are, therefore, of opinion that the resolution ought not to be adopted.
[Extract of a letter of the 15th April, 1813, from the Secretary of State to the commissioners of
the United States.] The article in the treaty of 1794, which allows British traders from Canada and the Northwest Company to carry on trade with the Indian tribes within the limits of the United States, must not be renewed. The pernicious effects of this privilege have been most sensibly felt in the present war by the influence which it gave to the traders over the Indians, whose whole force has been wielded by means thereof against the inhabitants of our Western States and Territories. You will avoid also any stipulation which might restrain the United States from increasing their naval force to any extent they may think proper on the lakes, held in common; or excluding the British traders from the navigation of the lakes and rivers exclusively within our own jurisdiction.
[Mr. Monroe to Albert Gallatin, John Quincy Adams, and James A. Bayard, esqs.)
DEPARTMENT OF STATE, April 27, 1813. GENTLEMEN: On the presumption that you may be able to conclude a treaty of peace, the President has thought it expedient to authorize you to enter likewise into a treaty of conimerce with Great Britain. For this purpose you are furnished with a separate commission.
It will be unnecessary for me to enter into any detail or illustration of this subject with you, who have had so much experience in the important concerns of the United States. You will endeavor to open to our commerce every part of the British dominions, on a footing of reciprocity and equality with each. In pursuing this object you will avail yourselves of the light shed on the subject by the treaty of 1794, and its effects on the general commerce of the country; by the instructions from this Department to Mr. Monroe and Mr. Pinkney, of the 17th May, 1806; by the project of a treaty signed by them with the British commissioners on the 31st of December of the same year; and by the remarks and instructions from this Department respecting that project.
In regulating the trade between the United States and Great Britain you are anthorized to adopt the 5th article of the project above recited. Should the British Government be unwilling to regulate the commerce generally between the two countries in a satisfactory manner, you may apply to it the rule of the most favored nation; and should the nonimportatian act not be terminated by the treaty of peace, you may provide for it in the proposed treaty of commerce. I have the honor, etc.
[Extract of a letter from the Secretary of State to the American commissioners at Ghent. ]
OCTORER 4, 1814. On the subject of commercial intercourse between the two nations, I will observe generally, that it may be better to avoid all stipulations than to enter into any which are objectionable or questionable. The interest and the wants of both nations will necessarily create, on the return of peace, an extensive commerce between them; and it is to be presumed, when the passions and the prejudices which now govern the British cabinet have subsided, that a more satisfactory provision for that object may be made.