H. OF R.

Conduct of the British Minister.

DECEMBER, 1809.

the time, in substance made known to you." The sources stated are Mr. Smith's "letter of the 19th of October, and the obvious deductions in his (Mr. Jackson's) letter of the 11th." The ques tion is, whether in either of these branches, or in both taken together, directly, or in the way of reference, the following idea is by any fair construction conveyed, viz: "That at the time of the arrangement with Mr. Erskine, the Govern ment of the United States had a knowledge of the incompetency of Erskine's powers."

Previous to proceeding further, I wish to make a single observation, by way of illustrating the nature and strength of the argument I shall offer. To induce this House to adopt a resolution so pregnant with consequences to the hopes and character of this people, it cannot be sufficient merely to show that the insinuation, on which their assertion is predicated, may be conveyed, it will require certainty that not only this idea is, but also that no other possibly can be. Surely if it be possible to show, or even make it probable, that another and an innocent idea may be conveyed, this House will never consent to make an assertion of such high responsibility on such dubious ground. For the purpose of defeating this resolution, it would therefore be amply sufficient for me to show that an idea, other than the obnoxious one, may be conveyed. But I do not

writing, is acquainted with the instructions, (a fact not denied, and not suggested to be an insult,) and that the fact of these instructions being the only ones, Mr. Smith knows from the information of Mr. Jackson-an assertion, which so far from intimating the obnoxious idea of a knowledge in Mr. Smith at the time of the arrangement with Mr. Erskine, that it conveys a contrary idea, by declaring that he was indebted for it to his (Mr. Jackson's) information. Here, then, the insult is not. With respect to the last sentence in this paragraph, the only assertions it contains, are the fact that the terms accepted were not contained in the instructions, and the evidence of this fact, derived from the statement of Erskine that those acceded to were substituted by Mr. Smith in lieu of those originally proposed. In all this, the knowledge of Mr. Smith of the incompetency of Mr. Erskine's powers is not so much as intimated. Indeed no one has pretended directly to assert that they have found it in the parts of this paragraph, from which I have thus excluded the obnoxious idea. Yet, as the whole has been cited, and made the basis of desultory declamation, I thought it not time lost to clear out of the way all irrelevant matter, and to leave for distinct examination the only sentence of this paragraph in which the insult lurks, if it has any existence in this letter. This point we have now attained. And as little inclined as gentle-limit myself to this task, I undertake to show not men may be to precise investigation, they must yield to it. I say, therefore, confidently, and without fear of contradiction, that if the assertion contained in this resolution be capable of justification by any part of the letter of the 23d of October, it is by the following, the only remain- The question recurs, in the fact asserted, in ing sentence of the cited paragraph which I have this sentence, Is the knowledge of our Governnot yet examined: These instructions I now un- ment of the incompetence of Erskine's powers derstand by your letter, as well as from the ob- intimated? So far from conveying such an idea, 'vious deduction which I took the liberty of that it intimates nothing concerning the knowlmaking in mine of the 11th instant, were, at edge of our Government in relation to the genthe time, in substance made known to you; no eral state of Mr. Erskine's powers. The simple stronger illustration, therefore, can be given of assertion is, "you knew the substance of those the deviation from them which occurred, than instructions," because you admit you knew the 'by a reference to the terms of your agreement." conditions, and I tell you these were the subThe latter part of this sentence being merely a stance. So far from this assertion conveying conclusion from the preceding part, and having the idea of a knowledge in our Government of no relation to the knowledge of our Government the general state of Mr. Erskine's power, that if at the time of the arrangement, will be laid out Mr. Jackson had here expressly asserted that of consideration as being obviously wholly with- those instructions were shown in extenso to our out the possibility of any agency in conveying Government, although this, after the denial of the obnoxious idea. There remains only the pre- Mr. Smith, might have been insult, yet it would ceding part of this sentence for the residence of not have conveyed the obnoxious idea, nor authe insult. Here, if anywhere, it must exist. thorized this resolution, unless he had also assertAccordingly this is usually shown as the spot ed, or it was a fact, that those instructions inclu where the ghost of insinuation first appeared be- ded an exclusion of all other powers. Because fore the eyes of our astonished Administration. the assertion of the knowledge of a particular Here we shall again find it; unless, indeed, it power, which does not include such an exclusion, were in fact a mere delusion of the fancy, formed can never convey the idea of the general incomof "such stuff as dreams are made." Let us ex-petency of the agent. In order to make my ar amine by way of analysis.

only that another idea than the obnoxious one may be conveyed, but that another is, and that the idea asserted in this resclution is not, and by any fair construction of language cannot pos sibly be, conveyed by these expressions.

gument distinct, I will state it more generally. The sentence to which the advocates of this If a particular power contain an exclusion of all insulting insinuation are now reduced contains, other powers, except those expressed in it, then, first, a fact asserted; second, the sources from an assertion that this particular power was known which a knowledge of that fact is derived. The may convey the idea of a knowledge of the genfact asserted is, that the "instructions were, ateral incompetency of the agent. But if such par

ticular power does not in fact contain an exclusion of all other powers, then to assert that this particular power was known, can never convey the idea of a knowledge of such general incompetency. In this case it is not even suggested that the instructions in question did include any such exclusion 1. of other powers. An assertion, therefore, that they were known, can never convey the idea of a general knowledge of the incompetency of the agent, unless a part can be made to include the whole, and an assertion that one thing is known can be made to convey the idea that everything is known. If, then, an assertion of a knowledge in our Government of the instructions in extenso, would not have conveyed the idea of a general knowledge of Mr. Erskine's powers; by much stronger reason a simple assertion, that not only the substance of those instructions was known cannot convey that idea. I say, therefore, that so far as respects the fact here asserted, not only another idea than the obnoxious one, may be conveyed, but that another idea is, and that the idea this resolution asserts, cannot by any possibility be conveyed. So that if this idea is to. be found anywhere in this letter of the 23d of October, it must be in consequence of the reference to the two letters of the 19th and the 11th, which Mr. Jackson says were the sources by means of which he understood the facts he asserts. Into these letters, therefore, we must look after the insulting idea, for we have now shown that it is not in the letter of the 23d of October, unless it be by virtue of this reference.

H. OF R.

the 11th. If it be not found here, it can be found nowhere, at least to justify this resolution. With respect to this letter of the 11th, we are subjected to the same difficulty to which we were reduced in relation to the letter of the 23d. Many passages have been read for the purpose of general comment, to which, in pursuance of my plan, I shall make no allusion. I confine myself only to those passages which have been cited to prove the particular idea asserted in this resolution. None of these I shall omit. With anything else under this resolution we have nothing to do, unless we are willing, by suffering extraneous influence to operate, to mislead our own judgments, and to deceive our fellow-citizens.

6

The following paragraph in the letter of the 11th of October, is the first, and the one principally relied upon, to prove the existence of that obnoxious insinuation which is the basis of the resolution. "I observe, that in the records of this mission there is no trace of complaint on the part of the United States of His Majesty having disavowed the act of his Minister. You 'have not in the conferences we have hitherto held, distinctly announced any such complaint, and I have seen with pleasure, in this forbearance on your part, an instance of that candor which I doubt not will prevail in all our com'munications, inasmuch as you could not but have thought it unreasonable to complain of the disavowal of an act done under such circumstances as could only lead to the consequences 'that have actually followed." Here is the inWith respect to Mr. Smith's letter of the 19th, sult, the advocates of this resolution assert, in a the assertion "I understand by your letter, (that sort of embryo state. Let us look at it through of the 19th,) that the substance of those instruc- the spectacles of the friends of the Administrations was known to you," has been represented tion, without any disposition to distort or to as insolent. So far from being insolent, it is not change any of its proportions. The features of so much as a contradiction. Mr. Smith says, "I this insult, say these gentlemen, consist in this: knew the three conditions." "That is what I first, in referring to the thoughts of Mr. Smith; say," replies Mr. Jackson, you know the sub- second, in intimating that his thoughts must have stance, because I tell you that those three condi- been such as to satisfy him that it was unreasontions were the substance." Here is no contra- able to complain of an act done under such cirIdiction. The only fact open to dispute is, whe- cumstances. In this the insult consists. In other ther the three conditions were the substance. Mr. words, in this the obnoxious idea is conveyed; Jackson indeed asserts, but Mr. Smith does not because it implies a knowledge in Mr. Smith, deny this fact. He only admits that he knew the that it was done under circumstances which three conditions; neither admitting nor contro- could only lead to a disavowal. Now, say they, verting the fact asserted by Mr. Jackson that they the circumstance which could only lead to a disawere the substance. But, taking it for granted vowal, is a knowledge in Mr. Smith at the time that this assertion was insolent, general insolence of the arrangement of the incompetency of Mr. is no justification to this House for asserting a Erskine's powers. Thus, say they, the knowlparticular fact. It is enough, however, for the edge of that incompetency is implied, and the present argument to observe, that the obnoxious idea asserted in this resolution, conveyed. This idea, which is the basis of the resolution, cannot is a fair and full statement of their argument. I be conveyed by means of this reference to the reply-I do agree that these expressions do imply letter of the 19th, not only from the argument a knowledge in Mr. Smith, that it was done under just now adduced, and showing that even the circumstances which could only lead to a disaassertion that these instructions were known in vowal. But it does not imply that this knowlextenso would not have conveyed that idea, but edge existed in Mr. Smith at the time of the aralso from this further consideration, that no gen-rangement made; but, on the contrary, does imtleman has pretended that it was in consequence ply and can imply only a knowledge in Mr. of this reference to that letter that this obnoxious Smith at the time of the disavowal known. The idea was conveyed. former is the only implication which can possiThe advocates of this insult and of this reso-bly be obnoxious, the latter is most innocent, belution are, therefore, driven back to the letter of cause at the time of the disavowal known, the

H. OF R.

Conduct of the British Minister.

เ

DECEMBER, 1809.

circumstances which led to that disavowal were 'lieu of them. It may have been concluded be communicated. An intimation of this knowl-tween you that these latter were an equivalent edge in Mr. Smith could not but be, therefore, 'for the original conditions, but the very act of perfectly inoffensive. That these expressions can-substitution evidently shows that those original not imply a knowledge in Mr. Smith at the time conditions, and those contained in the arrange of the arrangement made, and can only imply a ment of the 18th and 19th of April, is sufficiently knowledge in him at the time of disavowal known, obvious to require no elucidation; nor need I I argue from this fact, that the only time intima-draw the conclusion which I consider as admitted is the time when Mr. Smith "could not butted by all absence of complaint on the part of have thought it unreasonable to complain of the 'the American Government, viz: that under disavowal." Now Mr. Smith could not have such circumstances His Majesty had an unbegun to think of complaining of the disavowal, doubted and incontrovertible right to disavow until the disavowal was known to him; and with the act of his Minister." that knowledge came also the knowledge of the On this passage it is only necessary to remark, circumstances which led to it. Nothing, there- that so far as it respects the assertion that Mr. fore, can be more plain than that the time here Erskine had submitted to Mr. Smith the three implied is the time after the disavowal was conditions specified in those instructions, the fact known, and not the time of the arrangement is admitted by Mr. Smith; that so far as it remade. The fair construction of these expres- spects Mr. Jackson's assertion that Mr. Erskine sions is, "you must have thought it, Mr. Smith, reports, in his official correspondence, the reasons unreasonable to complain after you knew of the which induced Mr. Smith to think that others disavowal, for that knowledge apprized you that might be substituted in lieu of them, that it is not the act was done under circumstances which denied by Mr. Smith. For, in his letter of the could only lead to a disavowal." I say, there-19th, Mr. Smith, referring to this subject, expres fore, that the idea asserted in this resolution (a ses himself very cautiously, that Mr. Erskine knowledge in Mr. Smith at the time of the ar-" on finding his first proposals unsuccessful, the rangement) is not conveyed in this paragraph; another idea is conveyed, viz: a knowledge at the time of disavowal known. I say further, that the idea of knowledge and incompetency of Mr. Erskine's powers, in Mr. Smith, at the time of the arrangement, cannot by any possibility be conveyed, unless the assertion of a knowledge, existing at a time subsequent, can be made to express such knowledge, limited to a time antecedent. The only knowledge implied is subsequent to disavowal, and so by no possibility can be wrested to express the state of knowledge at a time antecedent to disavowal.

The ensuing paragraph I cite at large, because it has been quoted by some of the advocates of this resolution as containing the obnoxious idea, although it requires only a single perusal to satisfy any mind that it is impossible that the far greatest part of it can contain anything offensive. It is the only paragraph remaining unexamined which has been thus quoted, and will require a very short elucidation. "It was not known when 'I left England, whether Mr. Erskine had, according to the liberty allowed him, communi'cated to you, in extenso, his original instructions. It now appears that he did not. But, in reverting to his official correspondence, and particularly to a despatch addressed on the 20th of April to His Majesty's Secretary of State for Foreign Affairs, I find that he there states that he had submitted to your consideration the 'three conditions specified in those instructions, as the groundwork of an arrangement, which, according to information received from this country, it was thought in England might be made with a prospect of great mutual advantage. Mr. Erskine then reports, verbatim et seriatim, your observations upon each of the three conditions, and the reasons which induced you to think that others might be substituted in

more reasonable terms comprised in the arrangement respecting the Orders in Council were adopted;" without denying, as he would, if it had been false, and he thought it material, that he had offered "reasons to Mr. Erskine which had induced Mr. Smith to think that others might be substituted in lieu of them." But whether true or false, the assertion that Mr. Smith had offered such reasons to Mr. Erskine can never, by any fair construction, be made to convey the idea that Mr. Smith knew that Mr. Erskine's powers were limited to the three conditions, or, in other words, that Erskine's powers were incompetent. Upon the next sentence, the gentleman from Pennsylvania (Mr. MILNOR) lays great stress, asserting that "it conveys the idea that Mr. Smith had overreached Mr. Erskine." Concerning this sentence my first assertion is, that whatever else it may convey, it can never convey the idea asserted in this resolution. For certainly, to say of two classes of conditions under consideration, that Mr. Smith and Mr. Erskine concluded together, that the one was equivalent to the other, can only imply a comparison and a knowledge of those classes, and by no possibility can imply the state of Mr. Smith's knowledge in relation to Mr. Erskine's right to conclude concerning either of them. So that for all the purposes of supporting this resolution it is utterly useless, whatever other demerit it may have. The strenuousness of the gentleman from Pennsylvania (Mr. MILNOR) on this point, shows the crude ideas which even he, usually so acute and correct, entertains concerning his duties on this occasion. His great aim was to show that Mr. Jackson here intimates the idea that Mr. Smith had overreached Mr. Erskine. Well, suppose he had said this directly in so many words? Would that justify this House in voting that Mr. Jackson had conveyed the idea asserted in this reso

lution? It is the universal fallacy-prove anything rude or indecent, and it is a sufficient justification to this House for asserting a particular, independent fact. Is it possible for any mode of conduct to be more unjustifiable, or thoughtless; more calculated to bring shame upon ourselves, and disgrace upon the nation?

The next and last sentence in this paragraph is merely a declaration of the obvious difference between the conditions in the instructions, and those contained in the arrangement, accompanied by a reference, by way of recapitulation to the circumstances alluded to, in the paragraph which has been before considered. As it has been shown that this paragraph did not contain the obnoxious idea, it needs no argument to show it is not contained in this sentence. Indeed, I have not heard it pretended that this is the place of the insult.

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H. or R.

terms of it." Now is it not most extraordinary that after such formal statements, not including the knowledge of our Government among the essential circumstances, that it is on this knowledge the British Government intend to rely for the justification of their disavowal? I simply ask this question, if the British did intend thus to rely on the previous knowledge of our Government, why do they always omit it in their formal enumerations? And if they do not intend thus to rely, in what possible way could it serve that Government thus darkly to insinuate it? But, as if it were intended to leave this House wholly without excuse in passing this resolution, Mr. Jackson expressly asserts, in this very letter of the 23d of October, that the information of that fact was derived from him, the knowledge of which, this resolution asserts, he intended to intimate was known at the time of I have thus far proceeded by way of a strict the arrangement with Erskine. For he specifianalysis of every part of the correspondence, in cally says: "I have had the honor of informing which the insulting idea, asserted in this resolu- you that it (Mr. Erskine's instruction) was the tion, has been said to be conveyed. I have omit- only one by which the conditions on which he ted no part, which has been cited in support of was to conclude were prescribed." Now, if this first resolution, and think I have shown that Mr. Jackson had remotely intended to intimate it exists nowhere in the letter of the 23d of Oc- that Mr. Smith had a previous knowledge of that tober, either in direct assertion, or by way of ref- fact, would he have asserted that he was indebted erence. And it is concerning what is contained to him (Mr. Jackson) for the information? Conin that letter alone, that the resolution under con- clusive as this argument is, there is yet another sideration makes assertion. The House will ob- in reserve, which is a clencher. And that is, that serve that, according to all rules of fair reason- this very knowledge which we propose solemnly ing, it would have been sufficient for me to have to affirm, Mr. Jackson intimated our Government limited myself to show the fallacy of the argu- possessed at the time of the arrangement, it is, ments of the advocates of this insult. It being from the nature of things, impossible they should always incumbent on those who assert the exist-have possessed. The idea asserted to be intended ence of anything to prove it. I have not, how-to be conveyed is, a knowledge in our Governever, thought my duty on so important an occa- ment that the arrangement was entered into. sion fulfilled, unless I undertook to prove what the lawyers call "a negative," and to show, with as much strength of reasoning as I had, the nonexistence of the idea asserted in this resolution; with what success, I cheerfully leave to the decision of such thoughtful men in the nation who will take the trouble to understand the argument. There is, however, a corroborative view of this subject, which ought not to be omitted.

The insulting idea said to be conveyed is, that Mr. Smith had a knowledge, at the time of the arrangement of the incompetency of Erskine's powers, and this because such a knowledge was one of the essential circumstances which could only lead to a disavowal. Now it does happen, that neither Mr. Erskine nor his Government enumerate this knowledge of our Government as one of those essential circumstances. On the contrary, they constantly omit it, when formally enumerating those circumstances. Mr. Canning places the disavowal, solely, on the footing of Mr. Erskine's having "acted not only not in conformity, but in direct contradiction to his instructions." Mr. Jackson, also, in his letter of the 23d, when formally enumerating the causes of the disavowal, says expressly, that the disavowal "because the agreement was concluded in violation of that gentleman's instructions and altogether without authority to subscribe to the

was

เ

without competent powers on the part of Mr. Erskine. Now the fact that Mr. Erskine's powers were incompetent, it was impossible for our Government to know, except from the confession of Mr. Erskine. But Mr. Erskine before, at the time, and ever since, has uniformly asserted the reverse. So that, besides all the other absurdities growing out of this resolution, there is this additional, that it accuses Mr. Jackson of the senseless stupidity of insinuating as a fact, a knowledge in our Government, which from the undeniable state of things it is not possible they should have possessed. Mr. Speaker, can any argument be more conclusive? 1. The idea is not conveyed by the form of the expression. 2. Mr. Jackson, though expressly enumerating the only causes which led to a disavowal, does not suggest this. 3. Mr. Jackson expressly asserts that the knowledge that these were the only instructions derived from him, of course it could not have been known previous to the arrangement. 4. Had he been absurd enough to attempt to convey such an idea, the very nature of things shows that it could not exist. I confess I am ignorant by what reasoning the non-existence of an insinuation can be demonstrated, if it be not by this concurrence of arguments.

Before I conclude this part of the subject, it will be necessary to make a single observation or

H. OF R.

เ

ers at the time of arrangement, as an essential circumstance on which the King's right of disavowal was founded, and yet omit that circumstance, in a formal enumeration; and lastly, it is still more absurd to suppose that he would undertake to insinuate a knowledge, which, from the nature of things, could not possibly exist.

I have thus, Mr. Speaker, submitted to a strict and minute scrutiny all the parts of this correspondence which have been adduced by any one in support of the fact asserted in this resolution. This course, however irksome, I thought it my duty to adopt, to the end that no exertion of mine might be wanting to prevent this House from passing a resolution, which, in my apprehension, is pregnant with national disgrace, and other innumerable evils.

two, on the following passage in Mr. Jackson's letter of the 4th of November, for although our assertion has relation in the part of the resolution under consideration, only to the letter of the 23d of October, yet this subsequent passage has been adduced as a sort of accessory after the fact. "You will find that, in my correspondence with you, I have carefully avoided drawing 'conclusions that did not necessarily follow from 'the premises advanced by me, and least of all 'should I think of uttering an insinuation, where 'I was unable to substantiate a fact. To facts, 'as I have become acquainted with them, I have 'scrupulously adhered." This, the subsequent part of the resolution under debate denominates "the repetition of the same intimation." But if the argument I have offered be correct, there was no such "intimation" in the preceding letters, But let us suppose for one moment that the and of course no repetition of it here. For if he fact asserted in this resolution is true; that the had, as I think I have proved, in his former let-insult has been offered; and that the proof is not ters uttered no such insinuation as is asserted, obscure and doubtful, but certain and clear. I then all the allegations in this paragraph are ask, is it wise, is it politic, is it manly for a Nawholly harmless and decorous, neither disrespect- tional Legislature to utter on any occasion, parful nor improper. "But this," says the gentle- ticularly against an individual, invectives so full man from Pennsylvania, (Mr. MILNOR) "is con- of contumely and bitterness? Shall we gain clusive to my mind that Mr. Jackson did intend anything by it? Have such expressions a tea to insult, for if he had not would he have re- dency to strengthen our cause, or add weight and 'frained from giving an explanation when it was respectability to those who advocate it? In priasked?" That gentleman will recollect that the vate life do men increase respect, or multiply assertion of this House is as to the idea which their friends, by using the language of intemper Mr. Jackson has conveyed in the letter of the ate abuse? Sudden anger may be an excuse for 23d, not as to the idea which he intended to con- an individual. Inability to avenge an insult may vey. Suppose he intended it, and has not done afford an apology to him for resorting to these it, our assertion is still false. But will that gen- women's weapons. But what can excuse a natleman seriously conclude, contrary to so obvious tion for humiliating itself to the use of such vina course of argument, that he has asserted, or dictive aspersions? Can we plead sudden rage? even intended to assert, this particular idea, mere- We on whose wrath thirty suns have gone down? ly because he does not choose to explain it ? Are Is this nation prepared to resort for apologies to there not a thousand reasons which might have its weakness, and to confess that, being unable induced Mr. Jackson not to explain, consistent to do anything else, it will strive to envenom its with being perfectly innocent of the intention, adversary with the tongue? But our honor is originally to convey it? Perhaps he thought that assailed. Is this a medicament for its wounds? he had already been explicit enough. Perhaps If not, why engage in such retaliatory insults? he thought the explanation was asked in terms Which is best, to leave the British Monarch at which did not entitle Mr. Smith to receive it. liberty to decide upon the conduct of his Minis Perhaps he did not choose to give this satisfac- ter, without any deduction or sympathy on ac tion. Well, that now is "very ungentlemanly," count of our virulence, or to necessitate him, in says the gentleman from Pennsylvania, (Mr. MIL- measuring out justice, to put your intemperance NOR.) I agree, if he pleases, so it was. But in the scale against his imprudence? Railing does that justify this resolution? Because he for railing is a fair offset all over the world. And is not a gentleman, shall we assert a falsehood? I ask gentlemen to consider, whether it be not an equivalent for a constructive insinuation?

I briefly recapitulate the leading points of my argument. When Mr. Jackson asserts "that the substance of the instructions was known to our Government," the expression cannot convey the obnoxious idea, because it is not pretended that, in those instructions, the existence of other powers was excluded. When he says, "you must have thought it unreasonable to complain of disavowal," the time of knowledge implied is confined by the structure of the sentence to the time of a disavowal known, and cannot be limited backwards to the time of arrangement made. It is also absurd to suppose that Mr. Jackson would intimate by implication the knowledge of our Government of Erskine's incompetency of pow

Mr. Speaker, I do not believe that the hand of the Chief Magistrate of this nation is in this thing. In every aspect, this resolution is at war with that wise and temperate ground on which he has placed this insult, in the letter to Mr. Pinkney:

"You are particularly instructed, in making those communications, to do it in a manner that will leave no doubt of the undiminished desire of the United States to unite in all the means, the best calculated to establish the relations of the two countries on the solid foundation of justice, of friendship, and of mutual interests."

Is there a man in this House who can lay his