The New Hampshire gazette — Portsmouth [N.H.], 1810-01-13 00:00:00, page 1

* _ Portfinouth, jJanuary 13, 1810.
£ Lk
Mr. EPPES’ SPEECH
O‘N the Joitit Resolution approving the conduc® of the
Executive of the United States in relation to the re
fufal to receive any further: communication from
" Francis James Jackson —December 07.
Mr. Eppes f{aid, that as the motion to post
pone indefinitely the resolution before the House
involved the saerits of the daefion, he would a
wail himfelf of the opsortunity to present to the
Hbouf: and to the public his view of 2 transac
tion which so deeply affs&=l the honor, th= in
terelt and jadependeace of the nation. If, said
he there is any qu=ftion on which the two great
parties of our country cught to unite on ground
traly American, it is the one which we are now
called upon to decide. In maintaining the res
pect due to the Executive branch of our own
government, in difconntenancing rudeness or in-
Yolence on the part of a foreign agent, men of
"a!! pohitical parties havé a common interest. —
- Whatever difference of opinion may exilt either
- @s to geaeral or 16cal policy, we surely cannot,
On a question involving the support of a foreign
ageat agaiolt the Execative government of our
own coustry, arrange ourselves under the ban.
ners of party. Hitherto in all queltions between
the administration of this country and that of
Great-Britain, gentlemen have told us, you need
noct expeét jultice uatil you repeal laws consider
ed in Great Brirain as manifeßling hostility on
the part ‘'of the United States. The partial non
importation a& was {aid to be a meafire of hos
tility ; thisis done away. The proclamation
issued after the mot flagiant violation of our
teiritory and rights was considered . hoflile
wizafore ; this is done away. The embargo was
considered as a holtile measure ; this is done a
way also. Great Britain and France mult be
placed on an equal footing ; this has also been
done. The former adminiltration, dgainfl which
gertlemen had been habituated to indulge fecl
ings of distrust and suspicion, has gone out. The
firlt a& of the new admiftration, but for the bad
£:ith of the British minillry, wouald have con
figh=d to oblivion every measure which the oppo
nents of the former adminillration have hereto
fore conlidered a Bar 1o the adjultment of our
difzrencgs with Great Britain. Will gentlemen
now tzll us why Great Britaia will not do us jus
tice ? Will they tell the people the grounds on
wiich the disavowal of the late arrangement
with Mr. Erskine is made and juflify the Buitith
manitry ? They daré not. - Will they faci'fice
on the altar of public good party feelings, and
present to foreign npations that united front
vhich alone gives force to a free government ?
T'he vigor of a free government depends on u
nion. T'o the patriotic and voluntary exertions
of our citizens we mufl look for that energy which
a tyrant foices from relu@ant slaves. What
prospect of redress for our injuries can wﬁave,
if on an occasion like the prelent, marked by
such Rrong features of irjuflice on the part of
the British government, and of atrocious info.
lence on the part of its minilter, the representa
tives of the people thall present to the world the
extraordinary {pz&acle of discord, division and
difanion. - It seems, fir, that the fair castle of
union and confi lence, which men of all parties
- united in rearing at the las feflion, has vanished.
It seems that the present administration is not to
be judged bylits own adls, but is destined to re
ceive as a fort of-inheritance all thof: bitter and
acrimonious feelings which years of party con.
fl.& had ripened into inveterate hostility against
the former. Geatlemen have jult discovered
that the promptitude and franknefs with which
the Exzcutive of the United States met the over
tures of Mr. Erskine, is allan error. A genﬂe
man from Conne&icut, (Mr. Dana) who at the
~laft session of Congress told us that on this occa
sion the President of the United States had a&ed
like 2 man of business ; that no diplomatic dif
ficuities had been thrown in the way ; that the
tender was met fairly, openly and honorably,
has employed himfelf during the recess, in read
ing Grotius, Puffendorf, Vattel, Wicquefort,
Martins,'agd other writers on national law, and
now tells us gravely this thing is all an error.
in May lalt %;hch,ght with the gentleman from
‘Connecticut. 1 fee nothing in the correspond
ence laid before us which can juftify a change
of opinion. -I cannot, liks the Satyr in the fa
ble, blow hot—blow cold,with the fame breath,
T cannot now call black, what T at that time
, thought white. I cannot consent to attach my
f=if to the pendulum of Mr. Canning, whether
“~jts vibrations tend to promotethe interest or ruin,
of my country. Sir, do gentlemen forget that
-the condu& of the Executive on this occasion
was approved by men of all partiesin this coun
"try ?Do they forget that it was culogizgd and
.pprgv_ed,;by 'thémfelvies 2 Do thgy, cx?g&_ 10 ex
“plain to the pzople this fusden vibration by re.
ferences to Puffendorf and Grotius 2 Will they.
tell the people the real grounds on which the dis
avowal of the late arrangement with Mr. Ers
kine is made, and array themfclves in oppofirion
to the adminiltration for having entered into it ?
They dare not. Will they fay to the people, that
33 to the affair of the Chesapeake, the Britilh
government will mot make us reparation, be.
-cause the repeal eféhq Prefideat’s ptoclamation
s aot recorded in the infirament ? The people
wti;n ‘praclamation is repealed —
Will the eentiemen W‘@%P‘Wi"‘hﬂd{
g nclamation ilfued, Rill it js made #n. affzir of
SUPPLEMENT TO THE NEW-HAMPSHIRE GAZETTE.
enough that it is repealed,you must ackaowledge
you were wrong in having issued it. Will gen.
tlemen, in addition to this, tell the people, that
before reparation for the Chesapeake is made,
we must disfranchife cur naturalifed citizens,
-and acknowledge the right of his Britanaic ma.
jefty to claim them ? Will they tell the people
that beforé' the orders in council are withdrawn
we must give security for the continuance of our
‘non-iatercourfe {ylem again® France ? The
people will reply, that by the arrangement with
Mr. Erskine, that has been alréady done. Will
the gentlemen then fay to the people, in the
lapguage of Mr. Canning, this law may be re
pealed. Great Britain thult have two other con
ditions complied with ; you must relinquish all
right to trade with enemies colonies ; but this is
not {ufficient ; your own government is too im
becile to execute your laws again@ France ; the
British fleet mult be allowed to aid you, o as
to secure the good faith of the United States.—
Will any gentleman deny that these are the rea
sons affizned by the Britith ministry for disavow
ing the late arrangement. Mr. Canning fays,
Mr. Erikioe was authorifed to make the ar.
rangement on these conditions only, and these
have not been obtained. I call upon gentlemen
to deny the statement | have made. They can
not. To our disgrace it is on record, and the
record before us. P
The course pursued by the gentleman fiom
Cornne&icut (Mr Dana) in difcuffiag the refp
lution before the House, renders it necefliry to
bring into view the whole of the late arrapge.
meat and disavowal. The gentleman has/told
Us— /
t. That the whole correspondence is founded
on an erroron the part of our own Ex¢cutive,
viz. that Mr. Erskine could make ftiphlations
binding on his government in virtue of bis gen
eral letter of credence. - /
2. That in all cases where Ripulations are to
be made by a minifler binding on lis govern
ment, there muk be a full power, or as the gen.
tleman terms it, a patent power. |
3 That it was the duty of theexecutive of
the United States to have demanded of Mr. Er
skine as a preliminary to negociation the pro
du&ion of the authority under which he adled,
whether it was contained in a full power of in
structions. el
The gentleman trom Conne&icut,(Mr. Dana)
who on this occasion has certainly displayed
both learning and industry, seems to have view
ed the atrangement entered into with Mr. Er
{kine as a forthal treaty, and hus applied to it
principles not at all applicable to what it really
was, viz. a preliminary_arraogement to be sac.
cecded by a treaty. All the authorities cited
by the gentleman are applicable only to treaties
einbracing regulationg of a permanent charaéter.
The gentleman has corredlly cited various cases
unler the authority of the United States. 1.
President Jefferfon to Meflrs. Monroe and Pink
fiey, letters of credence and full power—Prefi:
dent Adams envoys to France, letters of cre
dence and full power ; and lastly, the case of
Mr. Hammond under General Walhington’s
administration, who had presented letters of cre
‘dence, and was nevertheless called upon to pro-
Guce a separate power.
In all these cases the ministers were to ferm a
treaty. The lafl case between Mr. Hammond
and Mr. Jefferfon embraced not only a treaty of
commerce, but the adjnftment of difficulties oro
duced by a failure on both sides to execute cer
tain articles of a treaty concluded under the old
confederation. It never has been doubted, but
that a separate power independent of the letter
of credence is necessary for the formation of a
treaty embracing regulations of a permanent.
charaer. The full power or patent power on
which the gentleman from Conne&icut bas said
so much, was originally designed to bind princes
to ratify the a&ls of their agents. It was much
in use in the ; 6th, t7th, and part of the 16th’
centuries, when princes were picne to perfidy,
and being considered according to Wicquefert,
as a power of attorrey, absolutely bound the
sovereign. . Indeed the fame author relates in
stances where treaties were publithed before rat- '
ification, and fays, that the ratification is noy of
the essence of a treaty. It is not,however, doubt
ed byt that accordirg to the present usage of na
tions, whether a ‘treaty is concluded in virtue
of a fall power or not,fovereigns claim the right,
to use the langunage of Vattel—* not 16 lay any
Atrefs‘upoan their treaties: until they have signed
upon and ratified them”—vid. Vattel b.'2. ¢ 12. |
5. 156.—8 y the fame writer the diftindion is
clearly laid down, between a treaty embracing
permanent regulations and what are termed con
ventions on public affaits—vid. book 2 chap.
12. {e&@. 207. The reference which the gentle
man has made to the meflage of President Mad
ison in support of his doétrine of fall power ‘is
rather an unfortunate one.—Here Mi. E- read
the following extralt— ' e,
«1n consequence of the provilions of the a&t
interdifting commercial intercourse with Great -
‘Britain and France, our ministers at London & -
‘Paris, were, without delay; inltruded to let it be
‘underftood bythe French and Britith govern
~ments, that the authority vefled -in the Execu
tive to renew commercial intercourse with their ¢
refpe&ive nations, would be exerciled inthe cale
Apecified By st att, - 000 L 0
% Soon after these inftmdions were defpatch
‘ed, it was found that the Britith governnent,
‘anticipating, from carly proceedings of Congress,”
-at their laßk session, the fate of our laws; which -
bas had the effedt of placing the two belligereat.
Ry iy e ew e
lying on the conciliatory disposition of the U.
States, had transmitted to t} "s!’“#‘wz
NG SRR e LlOet e SRRE D 8 ORI R eBT ol Al B e e i Fil T L e
_nic majesty, to fend an envoy extraordinary with
_poweis 16 conciude a treaty on all the points be
tween the twe countries ; but, moreover, to fig
nify the willingness, in the mean time, to with.
draw hi: orders in council, in the persuasion that
“theigtercourfe with G. Britain would be renew
ed on-the part of the United States.”
Here then the form in which this arrange.
ment was made is Rated officially to the gentie
man from Conne&licut. The arrangement has
none of the chara&eriftic features of a treat yo—
It has pever until the present time been consid
ered as a treaty. It was stated by the President
as it really was, as a micre prclimir\)ary arrange.
ment contemplating only a temporafy with.
drawal of certain measures until the general re.
lations of the two countries cculd be fixed by a
formal treaty. On this part of the {ubjed, to
wit.—* that the arran;;ement with Mr. Eifkine
cannot'be considered as a formal treaty’’==the
observations of the gentleman from North Caro
lina, (Mil: Macon.) are infinitely superior to any
thing which I can fay, becatife they are conclu
sive. _ _ '
Having made these preliminary :emarks, I
will now proceed to examine—
1. How far the Exceutive of the U. States was
authorifed 1o receive the declaration of the ac
~credited minilter of G Britain as to the extent
ot his powers,or wasbound to require an exhi
bition of his inltru®ions as a preliminary to.
the arrangement. :
2. How far the arrangement entered into was
obligatory on the Britith government.
3 Whether there has been such a departure
fiom inflruflions as to warrant a disavowal of
the arrangement, without a breach of good
- faith on the part of the Britith ministry.
_ln examining the fir& point, the firk question
which preferts itfelf is, under what authority
did Mr. Erikige act ?
1. Under a gereral letter of ctedence.
2. Under icltru&tions. : ‘
What is the general letter of credence ? It is
a paper addreflfed by th® Executive magistrate
of ope country to the Executive mugifirate of
another country. It contains the name and
quality of the miniftet who bears it, and is al
ways prelented in person——aster imentioning the
name and quality of the minifler, it ptoceeds to
slate—
We thetefore, desire, that you will give a
favorable reception to our said minister plenipo
tentiatry,and that you will give entire credence to
whatever hie may represent to you in our name.”
A letter of credence being under the signa
ture of the head of the government and seal of
the naticn, and of course patert to the govern
ment recciving it, is equivalent to a commifficn
in any other form whatever. -
The ovly difference between a full power (no
lefs limited to a special obje@) and a general
letter of credence confifls in thise—
The full power gives 2 right to make Ripula
tions on all {ubje&s.
The letier of credence on such fubje&s as come
properly within the range of the general powers
of the minister resident. ~ | :
The full power is signed by the head of the
government, and being under the seal of the na
tion is of course patent. |
The letter of credence is also under the signa
ture of the head of the goverpment and seal of
the nation, and of course patent. s
A minister acting under a fu// power and in- .
fruclions presents to the government only the
full power. |
A minifler a&ing under a letter of credence
and infiro@ions presents only his lctter of cre- |
dence to the government. : i 3
The ivfiru&ions in both cases belong exclu
sively to the minifler and cannot be demanded,
They contain, to use the langaage of Vattel, the
master’s secret. The only queßion therefore
{feems to be whether the fubjeds arranged by
Mr. Erskine, viz the Chefapcake and orders in
council,come fairly wi*Lin the range of the pow. |
ers of a resident ‘plenipotentiary. i
The powers of a fefidént minister plenipoten
tiary are no where precisely defined—and confe- 1
quently there is po precise demarkation between
the cases, falling within his powers and those re
quiring a {pecial plenipotentiary commiﬁion.-—-'i
Ulage, reason and common sense must trace the
diftiné&tion. In gemeral —occurrences of a tran.
fitory chaya@er are fettled by the resident func
tionary. Tranfa%ions and agreements operat
ing like treaties of peace, commaerce, alliance,
&c. either on account of their permanent char
a@ter or peculiar magnitade, are the work of
plenipotentiaries {pecially commissioned. 1
~ Mr. Rose for the adjulftment of the affairof
the Chefipeake brought only a letter of credence '
under the hand and {eal of his sovereign. The
defpatch of Mr Canning to Mr Erskine of the
234 of Jannary is not a full power in the legal
sense of the terms, being neither signed or seal
ed like a full powet or addressed to the proper \
authority, Had Mr Eifkine therefore thewn the
initrutions, the authority of them ‘would have
rested, not on their intrinsic chara&er, but on
tbe letter of credence which required faith to be
put in his word. 4t is admitted that Mr Er
skine bad authority to adjust the afair,of&he_.
Chefl+peake, and obje&ted only that he violated
hisinftro&ions. Yec it is cértain e had no
extra commission—no isit pretended that in that
case he had any infliu@ions, even which he was
stuborifed o communicae. . His avthoricy
therefore was in his letter of credemce. The
proposals of our minifler Mr Pivkney in Lon-.
| éﬂnoﬁ‘h@m m"*“?"““ Seq
in council, although they contemplated a repeal
us Boak SRR ORI Ged Lo for, wask of fiomr,
e il R
credence. The instr ngu&%:mm
Foootied & I of st pusilis 1 adls on.
m)' ‘ %mt RTN %m&‘%
had any otter commission but hi generalletter of
l in poing, which shews that a Sfull prwer i 3 not ne.
credence—Englith hiffory futaifh:sa precedent
ceflary to arrangements preliminaiy to a treaty.
The case in question is the declarationand coun.
ter declaration excharged at Madrid the 24th
- of July, 1790, between the Spanish minister -
~count Floriga Blanca and the Britith ambas.
fador Afleyne Fitzherbert. lln that case there
was 10 fall power, the phrase used is * being
thereto duly avtherifed”~—This declaration and
counter declaration were signed in virtue of a
general letter of crecence by Mr Fitzherbert who
was minifier plenipotentiary from Great Britain
to the Catholic king, but when in confiquence
of this prelimipary arrangement a treaty was
entered into on-the 28th ¢f O&ober of the fame
year, the phrase is altered,as after reciting count
_Florida Blanca’s and Mr Fitzberbert’s appoint
ments to conclude the treaty, it fays, ¢ who zf.
ter having communicated to eachother their res
pective full powers”—vid An.Reg.l79o.p 300.
On this and the othet point the calling for the
exhibition of inflru&ious as a preliminay to ne.
gociation, I beg leave to read the following au
thorities. . _
*¢ The embaffador after he has presented his
letters of credence (fays Wicquefort, folio ed. p
-109) and had them approved cught to enjoy the
effe@ thereof purely and simply and has no fur
ther occasion to fortify or authorife his negotia.
tion by producing other inßruments. :
“ Inftru&tions (fays Wicquaefort) are a focres
infirumient which the embaffador is not obliged
tocommunicate to the court wherehe negociates.
Nay I dare affirm rhat he cught not to produce
it, without a neceflity and exprefsorder. In the
year 1560 queen Elizabeth sent into Scotland
Robert Bowes, with orders to make prefling
inflances to have the Duke of Lenox removed
fiom the King’s person, who was at that time
very young. Those of the council of Scotland
said, that it was so severe and wnjuft a thing,
that not being able to believe the queer had
given hinf any such orders they desired to fee
them. Bowes said fe avonld net shew them.
The Scotch. were diffaiisfied therewith. But
the queen was so displeased with their proced
ure, that she recalled her embaflador, and refuf
ed to give andience to him they sent to jultify
‘their tranfa@ion.” '
_““ Ipthe year 1643 (fays the fame author)
Walter Strickland, minister from the pariiament
of Londor, presented a memorial to the Rates
general, wherein he spoke of the prince of Ora
ange with little relps&. fle war urged to shew
hes orders, but it was a kind of wviclence that
could not well be jultified. They that did i,
either did not rcfle@ on what they did, or else
they were very willing to offend his master.
We have seen within some years a minister, who
having bgen sent by a powerful slate to one of
the firk princes of Gerwany. began his negoci
aticn by laying his inftra&ions on the table. Bug
ail that can be {aid of it is, that it was the ac
tion of a fool in the utmoß extent of the
fignification of the epithet. [t is an unbeard of
thing that a minifler has been compelled to shew bis
orderss and they who force him to do it offer violence
2o the law of nations.” /
“ The minister who is to carry on a negocia
tion (fays Martens, Book 7, ch. 3 fc&. §5,) is
furnithed with inflructions. These inftruions, as
well as thole that it may be neceflary to defpatch
to him in the course of Lis embafly, being in
tended for himfelf alone, are not usually Droduced to
the court awhere he is fent,unlels his own court ore
ders him to do it, or unless he, from urgent mo
tives, thinks himfelf jutiifiable in producing cer
tain paflages of them.” Sometimes he has rwe
Jets of infiructions, the oune public, and the other
Jecial N i Y
“ Infiructions (fays M. de Callieres in his
¢ maniere de negocier,” page 87. c. i2.)area
writing which contain the commands of the
prince or of the Rate that gives them to its nes
gociator, to which be may have recourse for the
purpose of refrefhing his memory and by whick
hz is to regulate his condu@—There are some- -
times two sets of infu&ions, one made to be
Iheawn the other feret—which contains the true,
and ultimate intention of the prinee or fate
that gives them”-— :
¢ The fame author, page 88, declares the ina
firutions of a public minister cannot be demand.
ed without a violation of the law of pations. He
ought never to communicate them without the
express commands of bis sovereign—Nothing is
neceflary to give full faith 16 his declaration, bu¢
the letter of credence which he has presented or
the fuil power'which he may have communicat
ed.” _ =3 , 2 ; R,
- From these autho'jritz'_es it appears that the ex.
ecative-had no right to demand of Mr. Erikine
his inftruttions—Mr Eifkine did not exhibig
them—on the contrary he declares, that he COn=
fidered it would be in vain to lay before the .
government of the United Statés the defpatch
of the 23d of January, which he was at liberty.
to have done in extenfo if he had thought proper.
Videxori page 26:00 0 L 0 o AL ST
I will now proceed to examine how far the are’ .
rangement entered into was obligatory on the
British government— o
_ In order to form 4 corre® opinion on this
fubjed it will be neceflary to pass in review the
circumstances which took place prior to the late
RESARGEMmLY, - | o o G S
- '*'?ﬁ;’e‘;meaﬁxrég adopted at the commeniéer teng -
of the 2d. feiion of the 11th Congress placed
Great Britain and France on an equal footing
—Every pretext for a continuance of the decrees
tained io the i Ith fedlion of the non ipterconsle
‘alt,was introduced for the eXpiefs pudntfe of e -
abing the Prsfident, to meet the sdvsgen T
"of inter F@ 0t fe e afted & due lapnfe of tias he
?f‘ge«;i:ﬁ it :ji“":&?fw,:é? Aﬁ ’%*wﬁ- e .