treaty. A simple permission to trade with a nation, gives no perfect right to that trade; it may be carried on so long as permitted; but the nation granting such permission is under no obligation to continue it. A perfect right in one nation to carry on commerce and trade with another nation can alone be procured. by treaty.

From the precarious nature of trade between nations, as well as from the desire of obtaining special advantages and preferences in carrying it on, originated the earliest conventions on the subject of commerce. The first commercial treaty that placed the parties on a more secure and better footing in their dealings with each other than existed in their respective intercourse with other nations, inspired others with a desire to establish, by similar treaties, an equally advantageous arrangement. Thus one treaty was followed by another, until, as was the case when the United States became an independent power, all nations had entered into extensive and complicated stipulations, concerning their navigation, manufactures and commerce.

This being the actual condition of the commercial world, when we arrived at our station in it, the like inducements to render certain that, which by the law of nations, was precarious, and to participate in the advantages secured by national agreements, prompted our government to propose to all, and to conclude with several, of the European nations, treaties of com

merce.

Immediately after the conclusion of the war, Congress appointed Mr. Adams, Doctor Franklin, and Mr. Jefferson, joint commissioners, to propose and conclude commercial treaties with the different nations of Europe. This commission was opened at Paris, and overtures were made to the different powers (including Great Britain) through their ministers residing at Paris. The basis of these numerous treaties, which Congress were desirous to form, was, that the parties should respectively enjoy the rights of the most favored nations. Various answers were given by the foreign ministers, in behalf of their several nations. But the treaty with Prussia was the only one concluded, of the very great number proposed by the American commissioners.

Mr. Adams, in 1785, was removed to London, Dr. Franklin soon after returned to America, and Mr. Jefferson succeeded him as minister at Paris. Thus failed the project of forming commercial treaties with almost every power in Europe. Treaties with Russia, Denmark, Great Britain, Spain and Portugal, would have been of importance; but the scheme of extending treaties of commerce to all the minor powers of Europe, not omitting his holiness the pope, was, it must be acknowledged, somewhat chimerical, and could not fail to have cast an air of ridicule on the commissions that with great solemnity were opened at

Paris.

The imbecility of our national government, under the arti cles of confederation, was understood abroad as well as at home; and the opinions of characters in England, most inclined to favor an extensive commercial connection between the two coun tries, were understood to have been opposed to the formation of a commercial treaty with us; since, from the defects of our arti cles of union, we were supposed to be destitute of the power requisite to enforce the execution of the stipulations that such a treaty might contain.

We must all remember the various and ill-digested laws for the regulation of commerce, which were adopted by the several states as substitutes for those commercial treaties, in the conclusion of which our commissioners had been disappointed-the embarrassments which proceeded from this source, joined to those felt from the derangement of the national treasury, were the immediate cause which assembled the convention at Philadelphia in 1787. The result of this convention was the adoption of the present Federal Constitution, the legislative and executive de partments of which each possess a power to regulate foreign commerce; the former, by enacting laws for that purpose--the latter, by forming commercial treaties with foreign nations.

The opinion heretofore entertained by our government, respecting the utility of commercial treaties, is not equivocal; and it is probable that they will, in future, deem it expedient to adjust their foreign trade by treaty, in preference to legislative provisions, as far as it shall be found practicable, on terms of rea

sonable advantage. In the formation of the regulations that are legislative, being ex parte, the interest of those who establish them is seen in its strongest light, while that of the other side is rarely allowed its just weight. Pride and passion too frequently add their influence to carry these regulations beyond the limits of moderation: restraints and exclusions on one side, beget restraints and exclusions on the other; and these retaliatory laws lead to, and often terminate in, open war: While, on the other hand, by adjusting the commercial intercourse of nations by treaty, the pretensions of the parties are candidly examined, and the result of the discussion, it is fair to presume, as well from the experience of individuals in private affairs, as from that of nations in their more important and complicated relations, establishes those regulations which are best suited to the interests of the parties, and which alone afford that stability and confidence so essential to the success of commercial enterprise.

That our present government have thought a commercial treaty with Great Britain would be advantageous, is evident, not alone from the special and distinct commission given to Mr. Jay to form one; but likewise from the letter of Mr. Jefferson to Mr. Hammond, of the 29th of November, 1791, which was the first letter to that minister after his arrival; in which the Executive says: "with respect to the commerce of the two countries, we have supposed that we saw, in several instances, regulations on the part of your government, which, if reciprocally adopted, would materially injure the interests of both nations; on this subject, too, I must beg the favor of you to say, whether you are authorized to conclude or to negotiate arrangements with us, which may fix the commerce between the two countries on prin- . ciples of reciprocal advantage."

Further, from the first session of Congress, to that during which Mr. Jay's appointment took place, efforts were made to discriminate, in our revenue and commercial laws, between those nations with whom we had, and those with whom we had not, commercial treaties-the avowed object of which discrimination was, to place the latter nations on a less advantageous commercial footing than the former, in order to induce them likewise to

form commercial treaties with us; and it cannot be forgotten by those who affect to suppose that it was not expected that a treaty of commerce would be formed by Mr. Jay, that Mr. Madison's commercial resolutions, which were under consideration at the time of Mr. Jay's appointment, grew out of, and were built upon, a clause of Mr. Jefferson's report of the 26th December, 1793, which asserts that Great Britain discovered no disposition to enter into a commercial treaty with us. The report alluded to is explicit in declaring a preference of friendly arrangements, by treaties of commerce, to regulations by the acts of our legislature, and authorizes the inference, under which the commercial resolutions were brought forward, that the latter should be resorted to, only when the former cannot be effected.

The power of the executive to form commercial treaties, and the objection against the commercial articles before us, as an unconstitutional interference with the legislative powers of Congress, will, in the sequel, be distinctly examined, together with other objections on the point of constitutionality.

Against the policy of regulating commerce by treaty, rather than by acts of the legislature, it is said, that the legislative acts can, but that a treaty cannot, be repealed. This remark is true, and of weight against the formation of commercial treaties which are to be of long duration, or like our commercial treaty with France, which is permanent. For, as we are yearly advancing in agriculture, manufactories, commerce, navigation, and strength, our treaties of commerce, especially such as, by particular stipu lations, shall give to the parties other rights than those of the most favored nation, ought to be of short duration, that, like temporary laws, they may, at an early day, expire by their own limitation, leaving the interests of the parties to a new adjustment, founded on equity and mutual convenience.

Of this description are the commercial articles of the treaty with Great Britain; for none of them can continue in force more than twelve years; and they may all expire, if either party shall choose it, at the end of two years after the peace between France and Great Britain.

Did the limits assigned to this defence admit a review of the

commercial and maritime codes of the principal European nations, we should discover one prevailing feature to characterize them all; we should see the general or common interest of nations, every where, placed in a subordinate rank, and their separate advantage adopted, as the end to be attained by their respective laws--hence, one nation has enacted laws to protect their manufactures, another to encourage and extend their navigation, a third to monopolize some important branch of trade, and all have contributed to the creation of that complicated system of regulations and restraints, which we see established throughout the commercial world.

One branch, and a principal one of this system, that which establishes the connection between the several European nations and their colonies, merits our particular attention. An exact knowledge of this connection would assist us in forming a just estimate of the difficulties that stand in opposition to our claim of free and full participation in the colony trade of Great Britain.

Unlike the plan of colonization adopted by the ancient governments, who, from the crowded population of their cities, sent forth and established beneath their auspices new and independent republics, the colonies of modern times have been planted with entirely different views; retained in a state of dependence. on the parent country, their connection has been made subservient to that spirit of monopoly which has shown itself among all the commercial powers. Every European nation has its colonies, and for that reason prohibited all foreigners from trading to them.

Important political events arise and pass in such quick succession, that we are liable to forget facts and opinions familiar to us in periods within the ordinary powers of recollection. No subject was more critically examined, or generally understood before the American revolution, than that which respected the connection between Great Britain and her colonies; all were then agreed, that the colony trade and navigation were subject to the restraints and regulations of the parent state. It was not against this dependence and commercial monopoly that the colo