James Madison Papers

Petition to the General Assembly of the Commonwealth of Virginia, [12 October] 1795

Petition to the General Assembly
of the Commonwealth of Virginia

[12 October 1795]


THE PRESIDENT of the UNITED STATES in his letter to the Selectmen of Boston, dated 28th of July, 1795, copies whereof have since been transmitted to similar meetings of the people in other parts of the United States; having, as it is conceived, virtually refused to view the representations of the people as a source of information worthy of his consideration, in deliberating upon the propriety of ratifying or rejecting the late Treaty between Great Britain and the United States, as recommended by the Senate; and having, as it is believed, first refused his consent thereto until Great Britain should withdraw her infamous orders for seizing provisions in American vessels bound to France, and since that time, during the continuance of the same orders, in the midst of numerous representations from the people in almost all parts of the United States disapproving the fatal instrument: Having actually proceeded to its ratification and given it all the energy which his constitutional functions could effect; and having, by these proceedings, rendered all further representations and applications to him, upon the subject, absurd and nugatory—It is we deem important, when such inattention to the public voice is manifested, that the people should boldly exercise their right of addressing their objections to all other constituted authorities within the United States, who possess any agency relative to this highly interesting subject.

Upon this principle, the following PETITION to the GENERAL ASSEMBLY of VIRGINIA, in virtue of their constitutional right of appointing Senators for this State to the Congress of the United States, is submitted to the independent citizens thereof. It is presumed that the time previous to the meeting of the Assembly, is too short to afford that general circulation of the Petition throughout the State, which is desirable:1 But it is hoped that some patriotic citizens, who may approve its contents, will be active in favouring their fellow-citizens with an opportunity of testifying in like manner their approbation, by their respective subscriptions thereto.

Through these means one more effort may be made by a declaration of the public sentiment, to prevent the final ratification and ultimate energy of an instrument, which is deemed fatal to the interests, the happiness, and perhaps finally to the liberty and independence of the United States.

October 12, 1795.

To the General Assembly of the Commonwealth of Virginia.

The Memorial and Petition of the subscribers thereof, respectfully sheweth, that they have seen and maturely considered the Treaty lately negociated with Great-Britain, and conditionally ratified by the President of the United States.

That they infer from the nature of the condition annexed to the ratification, that the said Treaty ought to receive, and must again receive the sanction of the constituted authorities, before it can be finally binding on the United States; in as much as the indeterminate suspension of that part of the Treaty, which relates to the trade between the United States and the West-Indies, must be made determinate, in the new article proposed to be added, and in as much as the connection established by that article, between the parts suspended, and the temporary residue of the Treaty, constitute them essentially conditions of each other, and must involve the latter in the fate of the former, whereby a change will be made both in the form and substance of the instrument, that will be equivalent to a new compact.

That in the present stage of the transaction they deem it their right and their duty to pursue every constitutional and proper mode of urging those objections to the Treaty, which in their judgment require to be entirely removed, before it ought to be finally established.

That under this conviction, they submit the following observations to the consideration of the General Assembly.

I. Even “waiving the merits of the respective complaints and pretensions of the two parties,”2 as to the inexecution of the Treaty of Peace, it is reasonable to view the two parties as equally culpable, or equally blameless, and to determine that the execution of the Treaty of Peace equally by both ought to have been provided for. Yet, whilst the United States are to comply, in the most ample manner, with the article unfulfilled by them, and to make compensation for whatever losses may have accrued from their delay; Great-Britain is released altogether, from one of the articles unfulfilled by her, and is not obliged to make the smallest compensation for the damages which have accrued from her delay, in fulfilling the other.

These equitable, and reciprocal claims of the United States, are not even allowed the chance of arbitration.

This inequality of terms, is greatly aggravated by other concessions, on the part of the United States, which besides adding to the violations of the constitution artfully introduced in this Treaty, may in a great measure, defeat the good consequences of a surrender of the Western Posts, if that article of the Treaty should be faithfully executed by Great-Britain.

The British settlers and traders, within an indefinite tract of country, are allowed to retain both their land & allegiance at the same time, and consequently to keep up a foreign and hostile influence over the Indians, within the limits of the United States.

The Indians, within these limits, are encouraged to continue their trade with the British, by the permission to bring their goods duty free from Canada, where the goods being charged with no such impost as is payable on the goods of the United States, will be offered for sale with that tempting preference; a regulation also but too likely to cloak the fraud of smuggling traders in a country otherwise favourable to them.

Under a like semblance of reciprocity, the advantage secured to the United States in the fur trade, by their possession of the carrying places, is abandoned to the superiority of the British capital, and the insecurity of the Canada duties or imposts.

A part only of the posts, harbors, and bays, of a single British province, is made free to the citizens of the United States, in consideration of a freedom of all their posts, harbours, and bays to British subjects. The goods and merchandise of the United States not entirely prohibited by Canada, (but which in fact are always entirely prohibited, when partial and temporary admissions are not dictated by necessity) may be carried there in consideration of a free admission from Canada, of all goods and merchandize not entirely prohibited by the United States, where there never is in fact this entire prohibition. A like stipulation, liable to the like observation, is extended to the exports of the United States, and the province of Canada. There are further instances of a nominal and delusive reciprocity.

In the case of the Mississippi, there is not even an ostensible or nominal reciprocity. The posts and places on its eastern side are to be equally free to both parties; although the Treaty itself, supposes that the course of the northern boundary of the United States, will throw the British beyond the very source of that river. This item of the Treaty is the more to be noticed as a repetition and extension, under such circumstances of the stipulated privileges of Great-Britain on the Mississippi, will be construed into a partiality in the United States, to the interests and views of that nation on the American continent, not likely to conciliate those from whom an amicable adjustment of the navigation of the Mississippi is expected; and were no doubt intended by Great-Britain as a snare to our good understanding with the nations most jealous of her encroachment and aggrandizement.

II. Without remarking the inexplicit provision for redressing past spoliations and vexations, no sufficient precautions are taken against them in future. On the contrary, by omitting to provide for the respect due to sea letters, passports, and certificates, and for other customary safe guards to neutral vessels, “a general search warrant” (in the strong but just language of our fellow-citizens of Charleston) is granted against the American navigation. Examples of such provisions were to be found in our other Treaties, as well as in the Treaties of other nations. And it is matter of just surprize, that they should have no place in a Treaty with Great-Britain, whose conduct on the seas so particularly suggested and enforced every guard to our rights that could be reasonably insisted on.

By omitting to provide against the arbitrary seizure and imprisonment of American seamen, that valuable class of citizens remains exposed to all the outrages, and our commerce to all the interruptions hitherto experienced from that cause.

By expressly admitting that provisions are to be held contraband in cases other than when bound to an invested place, and impliedly admitting that such cases exist at present; not only a retrospective sanction may be given to proceedings against which an indemnification is claimed, but an apparent licence is granted to fresh and more rapacious depredations on our lawful commerce; and facts seem to shew that such is to be the fruit of this impolitic concession. It is conceived that the pretext set up by Great-Britain of besieging and starving whole nations, and the doctrine grounded thereon, of a right to intercept the customary trade of neutral nations, in articles not contraband, ought never to have been admitted into a Treaty of the United States—Because 1. it is a general outrage on humanity, and an attack on the useful intercourse of nations. 2. It appears that the doctrine was denied by the Executive in the discussions with Mr. Hammond, the British minister, and that demands of compensation founded on that denial are now depending. 3. As provisions constitute not less than two thirds of our exports, and Great-Britain is nearly half her time at war, an admission of the doctrine sacrifices in a correspondent degree, the intrinsic value of our country. 4. After public denial of the doctrine to admit it in the midst of the present war by a formal Treaty, would have but too much of the effect, as well as the appearance of voluntarily concurring in the scheme of distressing a nation, whose friendly relations to the United States, as well as the struggles for freedom in which it is engaged, give a title to every good office which is permitted by a just regard to our own interest, and not strictly forbidden by the duties of neutrality. 5. It is no plea for the measure, to hold it up as an alternative, to the disgrace of being involuntarily treated, in the same manner, without a faculty to redress ourselves. The disgrace of being plundered with impunity, against our consent being under no circumstances, so great as the disgrace of consenting to be plundered with impunity. By annexing to the implements of war enumerated as contraband, the articles of ship timber, tar, or rosin, copper in sheets, sails, hemp and cordage, our neutral rights and national interests are still further narrowed. These articles were excluded from the contraband list by the United States, when they were themselves in a state of war. (See ordinance relating to captures in fourth of December, 1781.) Their other Treaties expressly declare them not to be contraband.

British Treaties have done the same, nor as is believed, do the Treaties of any nation in Europe, producing these articles for exportation, allow them to be subjects of confiscation. The stipulation was the less to be admitted, as the reciprocity assumed by it is a mere cover for the violation of that principle, most of the articles in question being among the exports of the United States, whilst all of them are among the imports of Great-Britain.

By expressly stipulating with Great-Britain, against the freedom of enemy’s property in neutral bottoms, the progress towards a compleat and formal establishment of a principle in the law of nations, so favorable to the general interest and security of commerce, receives all the check the United States could give to it. Reason and experience, have long taught the propriety of considering free ships as giving freedom to their cargoes. The several great maritime nations of Europe, have not only established, at different times, by their treaties with each other, but on a solemn occasion jointly declared it to be the law of nations, by a specific compact, of which the United States entered their entire approbation (see their act of the 5th of October, 1780). Great-Britain alone dissented. But she herself, in a variety of prior Treaties, and in a Treaty with France since, has acceded to the principle. Under these circumstances, the United States, of all nations, ought to be the last to combine in a retrograde effort on this subject, as being more than any other, interested in extending and establishing the commercial rights of neutral nations. Their situation particularly fits them to be carriers for the great nations of Europe, during their wars; and both their situation, and the genius of their government and people, promise them a greater share of peace, and neutrality, than can be expected by any other nation. The relation of the United States by a treaty on this point, to the enemies of Great-Britain, was another reason, for avoiding this stipulation. Whilst British goods, in American vessels, are protected against French and Dutch captures, it was enough, to leave French and Dutch goods in American vessels, to the ordinary course of judicial determination, without a voluntary, a positive, and invidious provision for condemning them. It has not been overlooked, that a clause in the Treaty proposes to renew at some future period, the discussion of the principle now settled; but the question is then to be not only in what, but whether in any cases, neutral vessels shall protect enemies property; and it is to be discussed at the same time, not whether in any, but in what cases, provisions, and other articles not bound to invested places, may be treated as contraband. So that when the principle is in favour of the United States, the principle itself is to be the subject of discussion; when the principle is in favour of Great-Britain, the application of it only, is to be the subject of discussion.

III. Whenever the law of nations has been a topic for consideration, the result of the Treaty accommodates Great-Britain in relation to one, or both of the republics at war with her, as well as in the abandonment of the rights and interests of the United States.

Thus American vessels bound to Great-Britain, are protected by sea papers against French and Dutch searches; but when bound to France or Holland, are left exposed to British searches, without regard to such papers.

American provisions in American vessels, bound to the enemies of Great-Britain, are left by Treaty to the seizure and use of Great-Britain; but provisions, whether American or not, in American vessels, cannot be touched by the enemies of Great-Britain.

British property in American vessels is not subject to French or Dutch confiscations—French or Dutch property in American vessels, is subjected to British confiscation. Articles of ship building bound to the enemies of Great-Britain for the equipment of vessels of trade only, are contraband—bound to Great-Britain for the equipment of vessels of war, are not contraband.

American citizens entering as volunteers in the service of France or Holland, are punishable; but American volunteers joining the arms of Great-Britain against France or Holland, are not punishable.

British ships of war and privateers, with their prizes, made on citizens of Holland, may freely enter and depart the ports of the United States; but Dutch ships of war, and privateers with their prizes, made on subjects of Great-Britain, are to receive no shelter or refuge in the ports of the United States. This advantage in war is given to Great-Britain, not by a treaty prior to an existing war, but by a treaty made in the midst of war, and expressly stipulating against a like article of treaty, with the other party, for equalizing the advantage.

The article prohibiting confiscations & sequestrations is unequal between Great-Britain and the United States: American citizens have little, if any interest, in private or bank stock, or private debts, within Great-Britain. So where much would be in the power of the United States, and little in the power of Great-Britain, the power is interdicted: Where more is in the power of Great-Britain than of the United States, the power is unconfined. Another remark is applicable—when the modern usage of nations, is in favour of Great-Britain, the modern usage is the rule of the treaty; but when the modern usage is in favour of the United States, the modern usage is rejected, as a rule for the treaty.

IV. The footing on which the treaty places the subject of commerce, is liable to insuperable objections. 1. The nature of our exports and imports, compared with those of other countries, and particularly of Great-Britain, has been thought by the legislature of the United States, to justify certain differences in the tonnage & other duties, in favour of American bottoms, and the advantage possessed by Great-Britain in her superior capital, was thought at the same time, to require such countervailing encouragements. Experience has shewn the solidity of both these considerations. The American navigation has in a good degree been protected, against the advantage on the side of British capital, and has increased in proportion; whilst the nature of our exports, being generally necessaries, or raw materials, and our imports consisting mostly of British manufactures, has restrained the disposition of Great-Britain, to counteract the protecting duties afforded to our navigation. If the Treaty is carried into effect, this protection is relinquished, and Congress are prohibited from substituting any other. Then the British capital, having no longer the present inducement to make use of American bottoms, may be expected, in whatever hands operating, to give the preference to British bottoms.

2. The provisions of the Treaty which relate to the West-Indies, where the nature of our exports and imports, gives a commanding energy to our just pretentions, instead of alleviating the general evil, are a detail of particular humiliations and sacrifices. Nor will a remedy by any means be found in a revision of that part alone in the Treaty. On the contrary,

If Great-Britain should accede to the proposition of the Senate, and the Treaty be finally established, without that part of it, but in all its other parts; she will in that event be able to exclude American bottoms altogether from that channel of intercourse, and to regulate the whole trade with the West-Indies in the manner heretofore complained of, whilst the United States will be completely dispossessed of the right and the means of counteracting the monopoly, unless they submit to an universal infraction of their trade, not excepting with nations whose regulations may be reciprocal and satisfactory.

3. The Treaty not content with these injuries to the United States in their commerce with Great-Britain, provides in the XV. article against the improvement, or preservation of their commerce with other nations, by any beneficial Treaties that may be attainable. The general rule of the United States in their Treaties founded on the example of other nations, has been, that where a nation was to have the privileges of the most favoured nations, it shall be admitted gratuitously, to such privileges only as may be gratuitously granted, but shall pay for privileges not gratuitously granted, the compensation paid by others; this prudent and equitable qualification of the footing of the most favoured nation, was particularly requisite in a Treaty with Great-Britain, whose commercial system in relation to other countries being matured and settled, is not likely to be varied by grants of new privileges that might result to the United States. It was particularly requisite, at the present juncture, also, when an advantageous revision of the Treaty with France is said to be favoured by that Republic; when a Treaty with Spain is actually in negociation; and when Treaties with other nations whose commerce is important to the United States, cannot be out of contemplation.

The proposed Treaty nevertheless, puts Great-Britain in all respects gratuitously on the footing of the nations most favoured, even as to future privileges, for which the most valuable considerations may be given; so that it is not only out of the power of the United States to grant any peculiar privileges to any other nation, as an equivalent for peculiar advantages in commerce or navigation, granted to the United States; but every nation desiring to treat on this subject with the United States is reduced to the alternative, either of declining the Treaty altogether, or of including Great-Britain gratuitously, in all the privileges it purchases for itself. An article of this import is the greatest obstruction next to an absolute prohibition, that could have been thrown in the way of other Treaties; and that it was insidiously meant by Great-Britain to be such, is rendered the less doubtful, by the kindred features of the Treaty.

4.3 The President and Senate by ratifying this Treaty, usurp the powers of regulating commerce, of making rules with respect to aliens, of establishing tribunals of justice, and of defining piracy. A formal demonstration of every part of this complex proposition is not requisite. We will prove that this Treaty is dangerous to liberty, and that the constituted authorities who have given it their sanction, have flagrantly violated their duty by an appeal to the constitution itself, to that explicit instrument which we formed as the unerring guide of our representatives, but which some of them have dared to violate.

It can be no apology for the commercial disadvantages, that better terms could not be obtained. If proper terms could not be obtained, at that time, commercial articles, which were no wise essentially connected with the objects of the embassy, ought to have waited for a more favourable season. Nor is a better apology to be drawn from our other Treaties. These not only avoid many of the sacrifices in the new Treaty; but the chief of them were the guarantees or the auxiliaries of our independence; and in that view, would have been an equivalent for greater commercial concessions than were insisted on.

V.4 A Treaty thus unequal in its conditions, thus derogating from our national rights, thus insidious in some of its objects, and thus alarming in its operation, to the dearest interest of the United States in their commerce and navigation, is, in its present form, unworthy the voluntary acceptance of an independent people, and is happily not dictated to them, by the circumstances in which a kind providence has placed them.5 A Treaty thus incompatible with our constitution, thus unequal in its conditions, thus derogating from our national rights, thus insidious in some of its objects, and thus alarming in all its operation; is not only unworthy of the voluntary acceptance of an independent and happy people, but is an abject sacrifice which ought to have been rejected with disdain in the most humiliating and adverse circumstances.6 It is sincerely believed that such a Treaty would not have been listened to at any former period, even when Great-Britain was most powerful, at her ease, and the United States most feeble, without the respectability they now enjoy. To pretend that however objectionable the instrument may be, it ought to be considered as the only escape from a hostile resentment of Great-Britain, which would evidently be as impolitic, as it would be unjust on her part, is an artifice too contemptible to answer its purpose. It will not easily be supposed, that a refusal to part with our rights without equivalents, will be made the pretext of war on us; much less that such a pretext will be founded on our refusal, to mingle a sacrifice of our commerce and navigation, with an adjustment of political differences. Neither is there any evidence in history, or in human nature, that nations are to be bribed out of the spirit of encroachment and aggression, by humiliations which nourish their pride, or by unreasonable concessions, which extend their resources and their power. To do justice to all nations, to obtain it from them by every peaceable effort, in preference to war; and to confide in this policy, for avoiding that extremity, or for meeting it with firmness under the blessing of Heaven, when it may be forced upon us, is the only course of which the United States can never have reason to repent.

The petitioners, relying on the wisdom and patriotism of the General Assembly, pray that the objections to the Treaty, comprised in these observations, may be taken into their serious consideration; and that such measures towards a remedy may be pursued, as may be judged most conformable to the nature of the case, and most consistent with constitutional principles.

Printed copy (Va. Herald, and Fredericksburg and Falmouth Advertiser, 30 Oct. 1795). Reprinted in the Richmond Va. Gazette, and General Advertiser, 11 Nov. 1795, the N.Y. Argus; or, Greenleaf’s New Daily Advertiser, 11 Nov. 1795, and the Philadelphia Aurora General Advertiser, 13–14 Nov. 1795. On 28 Nov. 1795 Mathew Carey also published the petition in the ninth number of the American Remembrancer, 3:3–12. Minor variations between the printed copies and JM’s drafts have not been noted (see Draft of the Petition to the General Assembly of the Commonwealth of Virginia, ca. September 1795, Editorial Note).

1This may have been the memorial sent by William Branch Giles to Jefferson when he wrote from Petersburg on 29 Oct.: “This memorial is printed in handbills, as well as in the newspaper,… but in consequence of some errors in the first impressions, it will probably undergo a reprinting in the course of a few days. I am told that it will probably be subscribed in the neighbouring counties of this place almost universally, if the time should not be too short, to give the people an opportunity of doing so” (DLC: Jefferson Papers).

2JM was probably referring to Hamilton’s defense of the preamble to the Jay treaty in the third number of his “Camillus” essays (Syrett and Cooke, Papers of Hamilton description begins Harold C. Syrett and Jacob E. Cooke, eds., The Papers of Alexander Hamilton (26 vols.; New York, 1961–79). description ends , 18:514).

3The following paragraph was added to JM’s earlier drafts. In the Richmond and Philadelphia versions printed on or after 11 Nov. this paragraph was renumbered as section V and relocated immediately after the paragraph that had followed it in the first printed copy.

4The following sentence was deleted from the revised versions printed on or after 11 Nov.

5The deletion ends here. The sentence following was added to JM’s earlier drafts, and it was the first sentence of section VI in the revised versions printed on or after 11 Nov.

6The addition ends here.

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