Remarks on the Treaty of Amity Commerce
and Navigation lately made between
the United States and Great Britain1
[New York, July 9–11, 1795]
This being simply a declaration of peace and friendship is liable to no observation.2
This article, by fixing a precise period for the evacuation of the posts namely the first of June 1796 secures that important event as far as a stipulation can do it.3
It is objected that the period is too remote, and that reasoning from the past there can be no reliance upon a fulfilment at the time.
It were desireable that a shorter period could have been limited, not only because it is interesting to repossess the posts as early as possible but because the chances of interfering events which may create impediments are multiplied in proportion to the delay.
But the reasons assigned for it as contained in one of Mr Jay’s letters,4 though not satisfactory with regard to us are not without force with regard to the other party—and it may be added to them that the British would naturaly wish time to establish counter posts within their territories and that some time would really be requisite to prepare without prejudice to their Traders for the future course of their business.
Yet whatever may be the degree of forces which may be conceded to the reasons assigned for the delay, this circumstance does not appear to me a good ground of suspicion, that the postponement is with a secret intent to evade the surrender. I rather resolve its principal motive into the desire of preserving the friendship & confidence of the Indians within our territory by the gradual preparation of their minds for the event, and also by giving them sufficient time to close their quarrel with us leaving things on a footing which it was imagined would incline us to better terms of peace than if we were previously in actual possession of the posts.
The extreme profligacy and contempt of appearances—which are implied in the supposition of an intention to evade the surrender of the posts, after a second and a precise stipulation, in a Treaty which adjusts all the points of difference in a former Treaty5—are so palpable that the supposition cannot be indulged without such a distrust of the faith of the party as would forbid an attempt to treat with him. For after all, some future period must have been fixed—and that as well as a more remote one might have been evaded.
Besides, that it appears to be extremely probable that the course of events will fortify the disposition to observe good faith in these particulars.6
I therefore venture to count with confidence on the surrender of the posts, according to the stipulation, if the Treaty is mutually ratified. And this is in my view a matter of signal importance. Besides opening to us the Indian Trade, which is of some value, relieving us effectually from the expences and mischiefs of Indian Wars in that quarter and giving a secure course to our Western settlements—it breaks up the great & dangerous project of Great Britain to confine us to the ohio & to possess the intermediate Country. The different ways in which it will have this effect will readily occur. The firm possession by the General Government of the Western posts may be considered as a very strong link of connection between the Atlantic and Western Country; to maintain which, with the necessary controuls, is the knotty point of our affairs as well as a primary object of our policy. Moreover it is to be remarked that the conditional ratification of the Treaty as advised by the Senate7 will occasion delays which would render it scarcely possible to effect the surrender sooner than is stipulated, in consequence of the Treaty; and at any rate the event could only be retarded, not accelerated by not closing with the Treaty as it stands.
The reservations of this article with respect to the “precin[c]ts and jurisdiction” of the posts are criticised on account of the vagueness of the terms. But this criticism does not appear very well founded. It would have been difficult to have hit upon a definition which would have suited all the circumstances of the present occupation, and as any construction, which is not entirely absurd, will leave full latitude for progress of settlement during the short period of the further detention of the posts—a definition was not a matter of moment. In my opinion the true construction will be, that those places where there are settlements & establishments in the vicinty of the Posts over which a jurisdiction in fact has been exercised since the peace are to be understood to be comprehended within the terms “precin[c]ts & jurisdictions of the posts” and that where there have been no settlements gun shot must be the rule.
This article appears on the whole to be advantageous to the UStates.8 Our Indian Trade to which it gives the British acess is unimportant. Theirs to which we acquire access is important and it is believed by persons conversant in the business that our local situation will enable us to maintain the competition within the British territories on favourable terms. As to other Trade, the advantage will be still more clearly with us. The superior facilities of Transportation on our side will enable us to supply their possessions with European & East India goods as well as domestic articles far more extensively than they can us.
It is objected to this article that the clauses which regard “the admission of British vessels from the sea into the Rivers of the U States &c” and the mutual navigation of the mississippi will interfere with the regulations which the U States may hereafter think fit to establish in order to bring Great Britain to better terms of commerce &c.
But the ground of this objection appears to be erroneous. The main and affirmative object of the first clause of the article is to secure an intercourse between the territories situated on each side of the boundary line, by land passage and inland navigation with a right to each for the purpose of this inland navigation “to navigate all the lakes Rivers and waters thereof.” But lest on the one hand this should be construed to admit by implication a communication from the sea with Canada or Nova scotia or through those countries with the sea, (a thing not now permitted) it is declared negatively that this shall not be understood to be implied—and lest on the other hand the same provision should be construed to admit by implication that British vessels coming from the sea might go beyond the highest ports of entry, to which our laws now restrict foreign vessels, it is in like manner declared negatively that this shall not be understood to be implied. But this negative of an implication which might have arisen from the principal provision can by no just rules of reasoning or construction be turned into a grant of a positive privilege; especially being foreign to the object of that principal provision—that is to say, into the grant of a right to navigate by sea to & from our sea ports; the subject of the main provision being land passage & inland navigation.* The absurdity of such a provision becomes the more manifest by considering that the trade to be regulated by the main provision concerns only that portion of the British territories which is on the continent of America—while the right pretended to be grafted upon it would extend to all the other British territories in whatever part of the world. With as much reason and on the same principle might we contend under the article for an access by sea to any possessions which G Britain might have or acquire on the opposite coast of our Continent.
The clause with regard to the Mississippi merely admits as far as depends upon us a positive right to navigate that River to any port or place which the British may have bordering upon it and a revocable right to navigate it to any port or place which we may have bordering upon it. They may use it to come to any such lastmentioned port or place in as ample a manner as they may go to an Atlantic port; but not in a more ample manner; consequently a prohibition to come to an Atlantic port will annihilate the condition of permission to go to a port on the Mississipi.
We may therefore freely as to any thing in this article prohibit British vessels from coming by sea from any part of the world to the U States.
The latter part of the clause gives permission to bring and carry into the respective territories mentioned in the article in manner aforesaid, that is to say, by land passage & inland navigation, all such goods & merchandize whose importation shall not be intirely prohibited, paying such duties only as the respective subjects & citizens are liable to pay. But we may intirely prohibit any articles we please of the produce or manufacture of Great Britain. And we may prohibit the exportation to Great Britain of any articles whatsoever. Thus will there be ample room to make regulations of the kind alluded to, notwithstanding any thing in this article.
This article, as far as it is operative, is right.10 A survey is a necessary previous step to determine whether the former Treaty11 can be literally executed, and if not the adjustment of the matter is referred to future negotiation, which leaves it in the power of both parties to come to such an agreement as they deem reasonable & conformable to the true intent of the former Treaty.
This article also provides a good mode of settling the controverted point.12
It was ever my opinion, that no adjustment of the controversy on the inexecution of the former Treaty was ever likely to be made, which would not embrace an indemnification for losses sustained in consequence of legal impediments to the recovery of debts; and indeed it always appeared to me just that an indemnification should be embraced.13
The article of the former Treaty on this head was as I conceive nothing more than the formal sanction of a doctrine which makes part of the modern law or usage of Nations.14 The confiscation of private debts in time of War is reprobated by the most approved writers on the laws of Nations—and by the negative practice of civilized nations during the present century.15 The free recovery of them therefore on the return of peace, was a matter of course and ought not to have been impeded had there been no article.
Admitting that the first breaches of the Treaty were committed as we alleged by Great Britain, still it would not follow that the impediments which the laws of certain States opposed to the recovery of debts were justifiable.
First because it manifestly lay with the general Government to which belonged the powers of Treaty war and peace to decide whether in consequence of the breaches of Treaty on the other part it would elect to consider as void the whole, or any article of the Treaty. The General Government never did so decide but on the contrary repeatedly and wisely manifested a different disposition—wisely because it was inexpedient to set afloat so important a Treaty which terminated the question of the Revolution with the Government with which we had contended and to widen a breach which might at an early stage involve us anew in war. Consequently, the only competent authority having declined to pronounce, it was a usurpation in any state to take upon itself the business of retaliation.
Secondly Because the interruption of the recovery of Debts is contrary (as before observed) to the modern usage of nations—immoral in itself, against the opinions of the generality of enlightened men and disreputable to the Nation which has recourse to it. The practice of most of the States is in conformity with & is a comment upon this doctrine.16
But the question who committed the first breach of the Treaty, if candidly examined, does not admit of as clear a solution in our favour as many imagine or assert.17
Two breaches of Treaty are imputed to Great Britain one respecting the carrying away of the negroes and the other respecting the detention of the Posts.
As to the first Great Britain has much to say with Truth & Justice.
Her proceedings in seducing away our negroes during the War were to the last degree infamous—and form an indelible stain in her annals.
But having done it, it would have been still more infamous to have surrendered them to their Masters.
The reply to this may be that they ought not then to have stipulated it. This is just; but still the inquiry is whether they have stipulated it; and here the odiousness of the thing, as applied to them, is an argument of weight against such a construction of general expressions in the Treaty as would imply the obligation to restitution. Odious things are not favoured in the interpretation of Treaties and though the restoration of property is a favoured thing yet the surrender of persons to slavery is an odious thing speaking in the language of the laws of nations.18
The words of the article are that his Britannic Majesty shall with all convenient speed and without causing any destruction or carrying away any negroes or other property of the American Inhabitants withdraw all his armies &c.19
There are two constructions of this article one that the evacuation should be made without depredation that is without causing any destruction or carrying away any property, which continued to be such (having undergone no change by the laws of War) at the time of the evacuation—the other that there was to be besides a forbearance to destroy or carry away a positive restitution of all property taken in the War, and at the time of the evacuation which then existed in kind.
In favour of the last construction is the most obvious sense of the words; and as it applies to the negroes merely as an article of property, the justice of restoring what had been taken away in many instances by unwarrantable means.
Against it & in favour of the first construction are these considerations—
1 That the expressions are negroes and other property, which puts negroes cows horses & all other articles of property on the same footing, & considers them, if at all liable, equally liable to restitution and all as having equally the common quality of property of the American inhabitants.
Could any thing be considered as property of the American inhabitants at the time of the Treaty and in contemplation of the Treaty which by the ordinary rules of the laws of War had previously become the absolute property of the Captors? Is there any thing which exempts negroes more than other articles of personal property from capture & confiscation as booty? If there is not, why should negroes have been claimed under this article more than the vessels which had been captured and condemned? Is that a probable sense of the Treaty which would require such a restitution?
2 If negroes were objects of capture in War, the Captor might proclaim their liberty when in his possession. If once declared free, could the grant be recalled? Could the British Government stipulate the surrender of men made free to slavery? Is it natural to put such a construction upon general words if they will bear another? Is not this as it regards the rights of humanity an odious sense?
3 The Treaty will bear another construction, that which is put upon it by the British, a provision for greater caution against depredation or the carrying away of property not changed by the laws of War. It is observable in confirmation of this, that there is not stipulation to restore, but negatively not to carry away; whereas immediately after, in the same article, there follows a clause which stipulates that “archives records &c.” shall be restored and delivered up. This different mode of expression seems to denote a different sense in the two cases.
Let it be observed that I do not mean to advocate this sense in preference to the other. I have at different times viewed the matter in different lights and our ablest lawyers differ concerning it. I even entertain a clear opinion that the article was intended to operate in our sense of it. But still this does not obviate the doubt as to its true legal signification.
All I mean to say is, that there is really a well founded doubt as to the true legal construction; and in such a case the acting of the other party on a construction different from ours could not be deemed such a clear manifest breach of Treaty as to justify retaliation. The point was merely matter of amicable discussion and negotiation. If this was a breach of the Treaty it is necessary to note that it was committed in 1783.20
The affair of the posts is more embarrassing.21
It is necessary in the first place to settle when it became the duty of the British to surrender them. The stipulation is that it shall be done “with all convenient speed.” But from which of the Treaties are we to date, the provisional or the definitive?22
The principle of this question is a point of great difficulty not settled either by the opinions of writers or by the practice of nations.
I remember that I contended in Congress shortly after the arrival of the provisional Treaty, and when it was known that preliminaries had been signed between France & England, that the execution of the Treaty was to date from this epoch, and on this position I grounded a motion to recommend to the States a compliance with the article.23
But on the vote upon this motion I was left alone, and Congress did not act upon the subject till after the arrival of the definitive Treaty, that is 1784.24
This amounts to a construction by our Government that the execution was to date from the definitive Treaty.
Lord Grenville contends with Mr. Jay for the same position, and urges consequently that it was not till after the notice of the ratification by us in England or in other words the exchange of ratifications there that it could be deemed incumbent upon them to give orders for the evacuation of the posts; which orders could not well have been given before May nor have arrived in Canada till July.25
After the course pursued by us as already stated it is difficult to see what can be objected to this construction. It is true the Atlantic posts were evacuated shortly after the provisional treaty; but it may be justly observed upon this, that it was done for mutual convenience and in the spirit of conciliation, not on the score of strict obligation; that however inconsistent with the spirit of an act for restoring peace, it might have been to have detained places in the heart of our settled country being besides the capitals of the states in which they were, there was intire liberty to pursue a stricter rule as to the Western posts, some delay concerning which could not have been of material inconvenience to us; and that it was reasonable to pursue the strict rule here to see what course the execution of the Treaty was likely to take on our part.
But our dilemma is this, that if the delay of orders for evacuating the posts till after the exchange of Ratifications of the definitive treaty was a breach of the Treaty as contended for by Mr. Jefferson,26 the delay of acting upon the fifth article27 till after the ratification of the definitive Treaty in this country was equally a breach of the Treaty on our part—and a prior at least a cotemporary breach.
1 An Act of New York for granting a more effectual relief in cases of certain Trespasses passed the 17 of March 1783.28
This act takes away from any person within the British lines who had occcupied injured or destroyed the property real or personal of an inhabitant without the lines the plea of a military order for so-doing; consequently the justifications which he might derive from the laws and usages of war—in contravention of the Treaty of peace.
It is true it preceded for a short time the arrival of the provisional Treaty in this Country; but it is notorious that it was in expectation & contemplation of the event.
This circumstance of priority of time leads Mr. Jefferson to put this act out of the Question29 But in fair reasoning this is hardly admissible.
It continued to have in fact an extensive operation from the time of the evacuation of the City of New York till the repeal of the exceptionable clause by an act of the 4th of April 1787.30
It hardly appears as satisfactory answer to this to say as Mr Jefferson has done, that the Courts did not sanction the principle of the Act; that in one instance, the case of Rutgers & Waddington, the Mayors Court overruled it.31
The fact is that from the very express terms of the Act a general opinion was entertained embracing almost our whole bar as well as the public that it was useless to attempt a defence—and accordingly many suits were brought and many judgments given without the point being regularly raised and many compromises were made and large sums paid under the despair of a successful defence. I was for a long time the only practicer who pursued a different course and opposed the Treaty to the Act—and though I was never overruled in the Supreme Court, I never got my point established there.32 I effected many easy compromises to my clients afraid myself of the event in the Supreme Court—& produced delays till the exceptionable part of the Act was repealed. The Supreme Court frequently in a studied manner evaded the main question and turned their decision upon the forms of pleading.
Tis, perhaps, enough for the other party to say that here was a positive law of a State, unrepealed and acted upon so as in fact to defeat in a material degree the operation of the Treaty. The injury was suffered and there ought never to have existed so critical a conflict between the Treaty & the statute law of a State.
If the operation of this law was a breach of the Treaty it was a breach from the first moment of the Ratification of the provisional articles till the 4th of April 1787. Nothing could be anterior to it.
Another Act of the 4th of May 1784 provided a mode by which the foregoing act should have effect upon the estates of absentees, which in several instances produced judgments without opportunity of defence.33 It is to be observed that the British Commander in Chief early remonstrated against this act as inconsistent with the Treaty & yet it continued unrepealed.34
And the Act of New York of the 12th of May 1784 in the strongest & most express terms confirms all confiscations before made, notwithstanding any errors in the proceedings & takes away the writ of error upon any judgment before rendered.35
This is substantially a new confiscation. If the jugments before rendered were from error invalid, the confiscation were nullities—to take away the writ of error which was the mode of annulling them was equivalent to making new confiscations. This act was an undoubted breach of the Treaty & is prior to the time when the breach by the non surrender of the posts can be dated.
An Act of South Carolina March 26. 1784 suspends the recovery of British Debts for 9 Months & then allows them to be recovered in four yearly installments.36
This also was a plain contravention of the Treaty and dates before the breach by non surrender of the posts.
Virginia in June 1784 resolved that her Courts should be opened to British suits as soon as reparation should be made with regard to the negroes and posts or otherwise as soon as congress should judge it indispensably necessary.37
If her Courts were before closed, which this resolution admits, it was in consequence of acts passed prior to the Treaty which her courts had deemed obligatory upon them after the Treaty—& it follows that there was a continual violation of the Treaty from its ratification till 1787 when Virginia repealed all acts repugnant to the Treaty.38
Taking therefore the carrying away of the negroes to be a breach of Treaty tis a very moot point whether some of the laws of the States did not produce antecedent breaches.
Putting that out of the question and taking the definitive Treaty, according to the construction put upon it by our own Conduct, as the act from which the execution was to date, and allowing reasonable time for the ratification to be notified & exchanged—it is certain that the first breaches were committed by us.
The use of these remarks is to shew that a candid and unprejudiced view of the subject tends to moderate the sanguine pretensions which have been built on the suggestion of the first breach having been committed by Great Britain and to manifest the reasonableness of having stipulated compensation in the cases of the breaches made by us.
Indeed admitting the first breaches by Great Britain I do not see that it would affect the conclusion that compensation was to be made.
The following seems to be the fair view of the subject.
Mutual infractions of the Treaty had taken place. Either our infractions were to be considered as the equivalents for those of Great Britain, and then having enjoyed the equivalents we had no right to ask reparation in addition—or if we preferred reparation for the infractions by Great Britain we were to renounce the equivalents for them.
Then it will follow, that the surrender of the posts on their side would draw with it a right of compensation for the losses suffered by impediments to the recovery of the Debts on our side.
In other words the Treaty was to remain mutually broken and unexecuted in certain points or it was to be reinstated by mutual performance. Performance as to the article of the debts is compensation for the losses sustained by impediments to the Recovery & the removal of those impediments.
In fine, it would in my judgment independent of the Treaty have been dishonorable and unjust in us to have interfered with the recovery of private debts—it was dishonorable & unjust to have interfered with them on the grounds which were the pretexts & it is honorable & just to make compensation. This reputation of the Country as well as its peace required the stipulation.
It is not perceived that there is any thing exceptionable in the mode of determ[in]ing and adjusting the compensations to be made in the cases in which this may be deemed proper—or that any better mode could be substituted—the article appears in general sufficiently well guarded.
This article appears to me as well arranged as could have been expected.39
It is objected to as two dilatory but no reasonable substitute has occurred.
The UStates could not have demanded a gross sum because they had no adequate standard by which to ascertain what was proper. They might have asked too much or too little.
Great Britain for the same re[a]son could not have been expected to agree to the demand of a gross sum. This is not the way that nations deal with each other, unless where one is in a situation to dictate to the other. This was not our situation.
Indemnification on equitable principles was all that could be expected. This necessarily supposes a mode of ascertaining with due investigation the real losses.
But one of three modes can well be thought of; to refer the adjustment to the Tribunals of the UStates, to refer it to the Tribunals of G Britain or to submit it to referrees mutually appointed.
Either of the first two modes was inadmissible because liable to partiality. The Tribunals of the U States could never get hold of the cases without inviting intirely the course of similar transactions. Those of Great Britain will now in many cases decide in the first instance, but no American would choose to leave the ultimate decision there. Referrees have therefore a comprehensive power to do justice in all cases in which it could not be obtained in the ordinary course.
But it is said twere better the Commissioners should have decided in the first instance without reference to the Courts for the greater dispatch.
This might have had a contrary tendency to that of promoting dispatch. Appeals in a great number of cases will have gone forward—and it was better they should have their course than be arrested to be turned over to the Referrees. Tis probable from the expedition of Admiralty proceedings that the Courts will have done their part by the time the referrees are ready to begin.
It is observed too that this article follows closely the provision with regard to the debts and it was natural this should be the case.
We certainly must prefer that our courts of Justice should have a free course in the affair of the Debts, in all the cases in which it is now practicable.
The latter clause of this article respects the prizes made within our territorial Jurisdiction or by privateers originally fitted out in our ports, is confined to the cases in which the prizes having been brought within our ports we forebore to make restitution, and is purely in execution of the opinion of the President conveyed in the letter from Mr. Jefferson which is annexed to the Treaty40 & which by being annexed and referred to becomes a part of this article.
Agreeing then with the laws of Nations,41 with the obligations which our Treaties with other Nations impose upon us in respect to them and carrying into effect the expectation previously given by the President it is liable to no just objection.
This article seems in all respects unexceptionable.42
This article from having been misunderstood caused at first much uneasiness.43 It was considered as giving a permanent reciprocal right to the Citizens of the two Countries indefinitely to acquire and hold lands in either. But this is manifestly an error, which having been pointed out the uneasiness has subsided.
It is expressly confined to those holding lands prior to the Treaty, (the words are those “who now hold lands”) and makes no alteration in the antecedent state of things which can be at all material in a national light.
It is not certain that it makes any other alteration than that those who now lawfully hold lands may convey those lands to aliens.
It may however give rise to this question, whether aliens who now hold lands, by a defeasible title acquired since the Treaty of peace, in States whose laws do not authorise it, are not protected in their acquisitions? But however this question may be decided it is of little importance; for in fact the alien laws are never enforced nor likely to be so and the quantity of lands so holden which are dayly changing owners is not considerable enough to have any consequence in a national scale.44
An objection seems to have been raised in the Senate against the constitutionality of this article as though it entrenched upon the authorities of the States.
But this objection is inadmissible. It would totally subvert the power of making Treaties. There can hardly be made a Treaty which does not make some alteration in the existing laws which does not, as to its objects, controul the legislative authority—and from the nature of our constitution this must apply to the State laws and legislatures as well as to those of the Union.
A45 Treaty cannot be made which alters the constitutions of the country or which infringes any express exceptions to the power in the constitution of the United States. But it is difficult to assign any other bounds to the power. It may certainly alter the provisions of the statute and municipal laws & modify the rules of property.
There are stipulations in our Treaty of peace with G Britain analogous to the one under consideration—the validity of which has never been disputed.
Of this kind is that, which stipulates that all persons who have any interest in confiscated lands either by debts marriage settlements or otherwise shall meet with no lawful impediment in the prosecution of their just rights—and that which stipulates that there shall be no future confiscations.46
But a much stronger case is found in the 11th article of our Treaty of Amity & Commerce with France which is generally understood and practiced upon, as removing in toto the disability of alienism from all Frenchmen,47 so far as respects acquiring and holding lands and certainly gives them important rights with regard to lands which they could not have but for this Treaty on account of their alienism.
Indeed the protection of aliens in the enjoyment of the landed property they hold is a familiar article in Treaties of Peace; so also stipulations as to rights in lands more or less qualified are common in Treaties of Commerce. And the power of making Treaties is plenary under our present constitution, more so than it was under the confederation, where it has been deemed adequate to do much more in this respect than has been done by the Treaty in question.
In fine the objection to the constitutionality of this article is manifestly futile.
In my opinion this article is nothing more than an affirmance of the modern law and usage of civilized nations and is valuable as a check upon a measure which if it could ever take place would disgrace the Government & the Country & injure its true interests.48
The general proposition of Writers on the laws of Nations is that all enemy’s property wherever found is liable to seizure and confiscation, but reason pronounces that this is with the exception of all such property as exists in the faith of the laws of your own country. Such are the several kinds of property which are protected by this article.49
And though in remoter periods the exception may not have been duly observed; yet the spirit of Commerce diffusing more just ideas has been giving strength to it for a century past—and a negative usage among nations, according with the opinions of modern Writers, authorises the considering the exception as established.
If there have been deviations from that usage in the actual War of Europe they form no just objection to this reasoning. For this war has violated in different instances most of the most sacred laws of Nations.
It is said that the power which is given up by this article was the only effectual check upon G Britain. I answer 1st that there existed before no rightful or moral power, & notwithstanding the Treaty there will still exist a power, without right or morality. The Treaty only adds the sanction of an express to what was before an implied pledge of the public faith. The one may be still violated as well as the other—and the only use of the article will be to give prudent and good men an additional argument against an act of national inequity.
II That the fear of the exercise of this power has not hitherto appeared to be a Check upon Great Britain and the menace of its exercise can never take place without doing ourselves more harm than good by tarnishing our honor and shaking our credit.
III That War itself acts as a virtual sequestration of property by interrupting the course of remittances; and the Government by interfering does little more than render itself liable for the delapidations of vicious individuals who take advantage of the circumstance; since Treaties of Peace, unless one party is totally prostrate, will never fail to reinstate private debts.
What benefit did those states derive which had recourse to the expedient of sequestrations in our War?50 How much wiser & less embarrassing to themselves was the policy of those States who refrained from it? And why did they refrain from it but because they thought it unwarrantable and impolitic?
I have not the state laws by me and cannot speak with certainty from memory; but as far as I recollect, a majority of the states including the most commercial abstained from the sequestration or confiscation of private debts, except in the case of convicted or attainted criminals—which may be regarded as one indication of the general opinion. For if ever a War warranted such a measure it was our Revolution War.
I conclude from the whole, that no honest or truly politic objection lies against this article. And that a willingness to enter into the stipulation is reputable to the Country while an unwillingness would be disreputable to it.
These ten are all the permanent articles. They close the various matters of controversy with G Britain and upon the whole they close them reasonably. Compensation for the negroes, if not a point of doubtful right, is certainly a point of no great moment. It involves no principle of future operation. It terminates in itself—and the actual pecuniary value of the object is in a national sense inconsiderable & insignificant.
The remaining articles are temporary. I proceed to review them in their order.
This article is a mere introduction to the succeeding articles.51
This article is in my judgment an exceptionable one.52 The principle of a restriction upon any thing which is not the produce of the Treaty itself is unprecedented & wrong. Had it been confined to articles from the British Islands it would have been justified, but extending to articles from other Countries and according to the letter to one which is the growth of our own Country, it appeared to me from the beginning inadmissible. It might also have proved a source of dissatisfaction to France by intercepting in the midst of the War a regular and just source of supply through us. And though I would not omit any measure which I thought for the national interest, because any foreign power might capricously dislike it; yet I would do no act giving a reasonable cause of dissatisfaction. And for these reasons I am glad though at the risk of the Treaty that the Senate has excepted it.
I do justice to Mr. Jays reasoning on this subject.53 He thought rightly that the reexportation of the articles in ordinary times was a matter of little consequence to this country and that it was of importance by a formal Treaty to establish the precedent of a breach in the navigation system of Great Britain which might be successively widened. These reasons were not light ones, but they are in my judgment outweighed by the other considerations.
This article is a valuable one.54 In considering it, it is necessary to reflect that the privileges we now enjoy in the British East Indies are by the mere sufferance of the local Government and revocable at pleasure. This article converts into a right by stipulation, not all that we before enjoyed by sufferance, but the most essential and extensive part of it—the direct trade between India & the U States. Heretofore by sufferance we have been occasionally let into the coasting trade and have been permitted to go from India to other countries than the U States. The Treaty though it permits a circuitous trade to India permits only a direct trade from India to the U States—but when the articles arrive within the U States we may reexport them or do whatever else we please.
But though the Treaty does not secure to us an indirect Trade from India nor the coasting Trade there, I do not see but that these matters will be left just where they were before that is depending on the sufferance or free permission of the British Government in India. When two parties agree that a certain thing shall not be done, it is always with this tacit exception unless the party for whose benefit the restriction is imposed shall consent to wave it. If the British Government finds it expedient to continue to us the advantages not granted by Treaty, its permission ad hoc will release the restriction in the Treaty & confer the right. Tis by the same permission we have hitherto enjoyed it and by its continuance we may enjoy it still.55
The interest of the other party was the only ground upon which we heretofore enjoyed any privilege in the British East Indies. That interest without the Treaty would continue the privilege so long & so long only as the interest continued. It will still do the same as to what is not included in the Treaty; and the result of the whole is this—that the Treaty converts into matter of right the most extensive and most valuable part of a Trade which before was wholly matter of sufferance, leaving the residue now as it was before—matter of sufferance to be continued or discontinued according to the interest of the party.
Some alarm has been attempted to be excited as if under this article, the British Merchants could enter into competition with us in the India Trade and by the superiority of their capitals supplant us. But there is not a syllable in this article which renders this at all more possible now than it was before. There is a clause which says negatively that our vessels shall pay in India no other or higher duties than are payable on British vessels in the ports of the U States. But as it is at the option of the other party under this article not to make us pay as much Tonnage in India as British vessels pay in the U States so before the Treaty it was in their power to make us pay not only as much but more; now by the Treaty they are rest[r]ained from making us pay more; so that something is gained nothing lost. There is a clause which immediately follows very important in a contrary sense to the object. This clause secures us from paying higher duties in India on articles imported and exported in our Vessels than are paid on the same articles in British Vessels; whereas before they might have imposed at pleasure higher duties on our Cargoes and very reasonably could have gone so far as to countervail the higher duties which we lay on foreign vessels bringing goods from India.
In fine this article is all on one side & favourable to us.
This article is a general formula without any special or remarkable feature.56
This article with more precision than is usual only establishes reciprocally the rule of the most favoured nation. It stipulates that as to the points enumerated Great Britain shall be on no worse footing than other nations but it gives her no preferences. It was impossible to expect that a Treaty could be formed of which this was not the basis.57
The last clause but one reserves to Great Britain the right of imposing on American Vessels entering into her ports in Europe and their Cargoes, duties which shall countervail the differences made in our ports between British & American vessels and their Cargoes. This right Great Britain enjoyed before the Treaty, and it depended then upon her option as it does still to exercise or not to exercise it. And it is now in our option to defeat the reservation if we choose it by equalizing the duties.
The last clause stipulates on our side a continuance of the Status quo as to the Tonnage duty on British vessels and as to the proportional difference of duties on articles imported in British and American Vessels. This status quo is such as we have no interest to vary, unless on the plan of coercive regulations an idea which is certainly incompatible with the being of the Treaty while it continues in force.
This article merely relates to Consuls & is on the common and a harmless footing.58
This article, recognizing the right of a belligerent nation to take its enemy’s goods out of a neutral vessel, establishes the usual guards against abuse.59
It is impossible to deny that the principle recognised is conformable with the laws of Nations. It is the uniform doctrine of Writers and was the uniform and universally allowed practice of Nations before the armed Neutrality60 brought it into controversy. A combination like this formed in the midst of a War, of temporary duration and on special motives of policy, not acceded to by all the powers of Europe, not having acquired the sanction of time is clearly not sufficient to alter a rule in the law of Nations. This must be done by common consent or by long and general usage. Neither is the case here. On the contrary some of the powers which combined to introduce the innovation now support in arms a contrary principle—and all the neutral powers the U States included have expressly or virtually relinquished the ground in the whole course of the present War. None that I know of has seriously contended for it even in argument.
Our government at an early day on full & mature examination and reflection by an unanimous opinion of those consulted, gave up the ground as untenable. The Presidents’ files & Mr. Jefferson’s letters are evidence of this.61 Indeed it is not very probable, that the new principle will ever become an established one of the laws of nations. It is too contrary to the spirit of War.
Where therefore the rule exists it must depend on Treaty and apply only to the powers who are parties to it.
This article therefore does no more than was done before and rightly & wisely done.
For besides that one or a few nations cannot justly make and attempt to enforce a new principle, it is folly in a young & weak Country like ours to take a ground which cannot clearly be maintained on precedent & principle.
The dilemma was to renounce the pretension or to insist upon & maintain it. To have attempted the last would have been madness.
It were to have been wished that this article had stipulated with regard to contraband goods, what has been stipulated with regard to enemy’s goods, to wit, that the contraband only should be detained, the rest of the Cargo liberated—since it is contended, in certain cases, that the contraband articles will infect the Ship & the residue of the Cargo.62 But though such a stipulation would have been a point gained, the want of it relinquishes nothing. The point is left where it was before, to the decision of the laws of Nations.
The first clause of this article specifies the articles to be deemed generally contraband.63 This specification agrees with the laws of nations as laid down by Writers and sanctioned by long practice in all cases in which there are not limitations or exceptions in particular Treaties.64 The enumeration however comprises articles as contraband which are excepted in our other Treaties and is so far less well than might be wished, though probably as well as circumstances would permit to be done at the present juncture. In embracing generally articles for ship building it affects some of the staples of some of the states; but it is to be observed that it only leaves them in this respect where they are at present. It is however our interest to narrow upon all occasions as much as possible the list of contraband.
The second clause reciting the difficulty of agreeing on the precise cases in which alone provisions and other articles not generally contraband may be regarded as such—to prevent inconveniences and misunderstandings—provides that in the cases in which, by the existing laws of nations, they do become contraband,65 they shall not be confiscated but being taken shall be paid for at their full value with a reasonable mercantile profit freight and demurrage.
But one case in which such articles may be deemed contraband is by the succeeding clause subjected to a particular and different regulation. A vessel with her Cargo going to a port or place blockaded besieged or invested, if without notice, cannot be seized or detained but must be turned back. If she contumaciously persists and makes a second attempt she may be then seized and she and her cargo confiscated.
The last sentence guards our property found in places afterwards beseiged &c from vexations and depredations to which they have been in some cases liable.
The second clause has been the subject of much censure as though it sanctionned generally the seizing of provisions and other articles not generally contraband on the condition of paying for them; for it is said that all the cases in which the acknowleged laws of nations authorise such seizure are differently provided for in the third clause, (those of blockades seiges & investments) and consequently the provision in the second must be understood virtually to admit that there are other cases, and must be referred to the general position set up and acted upon by Great Britain in her order of June.66
But this argument is erroneous in principle and in fact.
1 The cases in which articles not generally contraband may be seized even with compensation are expressly those in which “they become contraband according to the existing laws of nations.” The appeal is then to these laws as the Criterion—and the Government will be as free after the Treaty as before it to deny any arbitrary construction which Great Britain may think fit to put upon these laws and to maintain its opposition in all the ways it may think fit.
2 It is not true that the third clause provides for all the cases where the acknowleged laws of nations authorise seizure of such articles. It provides for only one single case that of a vessel going, without notice, to a place blockaded beseiged or invested. The case of a vessel going to such place with notice is not included.
Other cases in which provisions &c. may be properly contraband may be conceived. That of carrying them with the direct intent of supplying a besieging army in the act of carrying on the seige is one; for there is no reason why the party besieged should not intercept & seize supplies going to the besiegers as well as the last those which are destined for the besieged.
Various combinations of circumstances which do not at first sight occur may beget other cases in which the seizure may be justified.
The clause in question, then, speaks simply this language, that inasmuch as cases may exist, in which provisions and other articles not generally contraband become so—as it is difficult before hand to define them as even in the admitted cases of blockades seiges and investments it may not always be easy to pronounce what is a blockade seige or investment as the parties cannot at this time agree upon a definition of the doubtful cases—they agree at least (with one exception which has been noticed) that in all cases of the seizure of such articles as contraband full compensation shall be made to the end that in doubtful cases, the inconvenience being thereby much lessened, the danger of rupture may be diminished by inclining the party which conceives itself injured to acquiesce in the pecuniary compensation.
But though I have no doubt that this is the true and genuine sense of the clause and that it does by no means warrant the construction put upon it—yet as it may possibly become the pretext of abuses on the side of Great Britain and of complaint on that of France—I should have liked the Treaty better without it.
On the whole I think this article the worst in the Treaty except the 12th—though not defective enough to be an objection to its adoption.
These articles require no comment. They are usual and every way unexceptionable provisions.67
This article is liable to no just objection.68 The first part of it restrains generally the citizens of each party from participating in hostilities against the other. This is implied in the leading article of every Treaty of peace—is conformable with every moral idea—and, though more comprehensive in the extent of the inhibition, is agreeable to the principle of the law of Congress on this subject.69
It is also agreeable to the true policy of the UStates which is to keep its citizens as much as possible from being implicated in the quarrels and contests of other nations, in foreign feelings interests and prejudices. This is an idea of great importance to our security in various ways.
The only case if at all in which it can be our interest that our citizens should engage in foreign service is that of young men of education entering into foreign service to acquire military knowlege & experience.
But it is conceived, that the doing of this in time of peace is not forbidden. The citizens of each party are not to accept commissions from, nor to be permitted to be enlisted by the enemies of the other. This seems to suppose a state of War when the forbidden act is done. The punishment for infractions of this part of the article is referred to the laws of the party whose citizens commit them. No precise one is defined.
The latter part of the clause subjects to the penalties of piracy the citizens of one party accepting commissions from the enemy of the other for arming any vessel to act as a Privateer.
A similar provision is to be found in all our Commercial Treaties heretofore made70 and is familiar in the commercial Treaties of other powers during the present Century.
It has wisely become the policy of nations to confine the mischievous practice of privateers to the belligerent parties. This is peculiarly our true policy; as from situation the contrary would never fail to compromise our peace.
It is to be observed that this crime of piracy does not extend to land service nor to service on board of public ships of War commonly called men of War.
This is a reasonable & usual provision in affirmance of the laws of nations and calculated to prevent War.71
This article merely stipulates those rights of hospitality which the curtesy and humanity of nations owe to each other & which it has been the endeavour of our Government to observe.72 It does not extend to privateers which are never denominated ships of War & consequently does not interfere with our Treaty with France as hitherto interpreted & acted upon.73
These articles which are compatible with the rules of neutrality and the rights of belligerent nations are becoming formulas in modern treaties.74 They are to be found essentially in our Treaties with France Sweden and partly if not wholly in that with Prussia and in the Treaty of 1786 between France and Great Britain.
I That the enemies of one party shall not arm their privateers in the ports of the other.
II That they shall not sell their prizes there.
III That they shall not be allowed to purchase more provisions than are sufficient to carry them to the nearest Port of the Prince or State to which they belong.
IV That the Ships of War & Privateers of the two contracting parties may carry whithersoever they please the prizes made of their respective enemies, without being obliged on entering the ports of each other to pay fees or being detained or seized or subject to search except to prevent infractions of the laws of Revenue navigation & Commerce or having cognizance taken of the validity of their prizes and with free liberty to depart to the places mentioned in their Commissions which they are to shew.
V That no shelter or refuge shall be given to such as have made prizes of each others ships or vessels but if forced by stress of weather to enter their departure is to be hastened.
VI That while the parties continue in amity they will make no future Treaty inconsistent with these two articles.75
But there is this express proviso—that “nothing in the Treaty shall be construed or operate contrary to former & existing public Treaties with other sovereigns or States.”
Hence while on the one hand these articles make no unreasonable stipulations in favour of G Britain—they can by no possibility interfere with prior stipulations to France or any other Power. If consequently there is any repugnancy the Treaty with Great Britain must give way to those prior Treaties.
There is only one particular in the conduct hitherto observed towards France in which the Treaty with Great Britain will produce an alteration, that is the selling of prizes in our ports; because this indulgence has been granted not upon the ground of any obligation to do it to be found in our Treaty with France but upon that of there being no law of the U States against it. The 24th article of the present Treaty will be a law against it and will restrain it.
But nothing can be more proper; and I well remember, that when it was concluded to permit the selling of prizes, it was unanimously regretted that the Executive, for want of law, could not do otherwise.76 Because the measure had an unneutral aspect—permitting to one party a military advantage which our Treaty with that party did not leave us at liberty to extend to the other and was of very questionable propriety. The permission was of a nature to give much dissatisfaction to the other powers.
A revocation of it therefore by a Treaty with one of those powers is unexceptionably equitable.
The clause which rest[r]ains the making of future Treaties in the given case has been grossly misunderstood.
It is expressly confined to the two articles & for aught I see is nugatory. For a Treaty implies of itself, that while the contracting parties remain in amity they shall make no subsequent Treaty inconsistent with the prior one between those parties.
These articles need no particular comment. They are liberal and equitable and interfere with no interest or duty.77
The part which regards ambassadors & ministers is calculated to avoid very delicate embarrassments & to exclude intrigues & bad conduct in foreign Ministers. It would be a valuable article in all our Treaties.
The effect of this Article is to enable either party in two years after the termination of the existing European War to put an end to all the articles of the Treaty except the first ten.78
This upon the whole is a desireable ingredient. It makes the commercial part of the Treaty a mere experiment of short duration and enables each party, if any part of it should be found to work amiss, or if it thinks that upon the whole the Treaty is not sufficiently advantageous, to put an end to it unless the parts not satisfactory can be amended or the additional provisions which are desired can be agreed upon.
This which is the last article provides merely for the ratification & looks to future negotiations for more beneficial arrangements.79
To these particular views of the different articles of the Treaty The following general view may be added.
The truly important side of this Treaty is that it closes and upon the whole as reasonably as could have been expected the controverted points between the two Countries—and thereby gives us the prospect of repossessing our Western Posts, an object of primary consequence in our affairs—of escaping finally from being implicated in the dreadful war which is ruining Europe—and of preserving ourselves in a state of peace for a considerable time to come.
Well considered, the greatest interest of this Country in its external relations is that of peace. The more or less of commercial advantages which we may acquire by particular treaties are of far less moment. With peace, the force of circumstances will enable us to make our way sufficiently fast in Trade. War at this time would give a serious wound to our growth and prosperity. Can we escape it for ten or twelve years more, we may then meet it without much inquietude and may advance and support with ener[g]y and effect any just pretensions to greater commercial advantages than we may enjoy.
It follows that the objects contained in the permanent articles are of real and great value to us. The price they will cost us in the article of compensation for the Debts is not likely to bear any proportion to the expences of a single Campaign to enforce our rights. The calculation is therefore a simple and a plain one. The terms are no way inconsistent with national honor.
As to the Commercial arrangements in the Temporary articles, they can be of no great importance either way; if it were only for the circumstance that it is in the power of either party to terminate them within two years after the war. So short a duration renders them unimportant however considered as to intrinsic merit.
Intrinsically considered they have no very positive character of advantage or disadvantage. They will in all probability leave the Trade between the two Countries where it at present is.
There is however one material circumstance in which this will not happen. The XV article declares that there shall be no prohibition of the importation of or exportation to & from the respective territory of the contracting parties which shall not equally extend to all other nations. This permits us to carry to the British dominions any article the growth or manufacture of another Country which may be carried from such country to those dominions. This is a serious innovation on the British navigation act80 & an important privilege to us.
It is to be remarked, however, that it does not secure to us the continuance of those discriminations in our favour compared with foreign powers which have in practice existed; but as these discriminations have always been revocable at the pleasure of the other party and are evidently founded on the interest that party has to procure the supply from us rather than from other quarters—the inference is that the security for the continuance of the advantage is as great as before.
The obstacle to its becoming matter of stipulation was that it was deemed to be inconsistent with Treaties with other powers.
Comparing this Treaty with the commercial Treaties heretofore entered into by the UStates the real advantage is on the side of the former.
As to the European dominions of the different powers the footing will be essentially equal.
As to their colonies, Great Britain gives us greater advantages by this Treaty than any other nation having colonies by its Treaty. There is nothing in any of our other Treaties equivalent to the advantages granted to us in the British East Indies. To this may be added the advantages contained in the Canada Article.81
Against this may be set the stipulation that free ships shall make free goods and the extended enumeration of contraband; but besides that these are provisions relative to a state of War our experience in the present war, in reference to France, has shewn us that the advantages expected are not to be counted upon.
Since then the permanent articles are of material consequence the temporary ones of small importance—since our faith is preserved with other powers—since there are no improper concessions on our part but rather more is gained than given—it follows that it is the interest of the U States that the Treaty should go into effect.
But will it give no umbrage to France?
It cannot do it unless France is unreasonable.
Because our engagements with her remain unimpaired & because she will still be upon as good a footing as Great Britain.
We are in a deplorable situation if we cannot secure our peace and promote our own interests by means which not only do not de⟨rogate⟩ from our faith but which leave the same advantages to France as to other powers with whom we form Treaties. Equality is all that can be claimed from us.
It is improbable that France will take umbrage—because there is not cause given for it—because there is no disposition on her part to break with us and because her situation forbids a breach.
But will it not hinder us from making a more beneficial Treaty with France?
This can only turn upon the question of equivalents to be given by us.
As to this though our Treaty with England would prevent in many particulars our giving preferences to France; yet there are still important points from the natural relations of Commerce which are open to arrangements beneficial to France and which might serve as equivalents. There is not leisure to enter into the detail or this might be shewn. It may however be mentioned by way of example that we may lower or remove wholly the duties on French Wines, which would be one important item.
But it would be always very unwise to refrain from doing with one power a thing which it was our interest to do because there was a possibility that some other power might be willing to make a better bargain with us.
What evidence has France given that she is disposed to make such better bargain? All that she has hitherto proferred under her present Governt. has contemplated as the consideration, our becoming parties to the War. As she will and ought to calculate her own interest we ought to dismiss the expectation of peculiar favours. Favors indeed in Trade are very absurd and generally imaginary things.
Let it be remembered too that the short necessary duration of our Treaty leaves us a wide field future & not remote.
But upon the whole we shall be least likely to be deceived by taking this as the basis of our commercial system—that we are not to make particular sacrifices to nor expect particular favours from any power.
It is conceived therefore upon the whole to be the true interest of the U States to close the present Treaty with G Britain in the manner advised by the Senate.
ADf, Hamilton Papers, Library of Congress.
1. H prepared these “Remarks” for George Washington, who had requested them in Washington to H, July 3, 1795. H sent them to the President in three installments with separate enclosing letters dated July 9, 10, 11, 1795. H’s enclosing letters have not been found. It seems likely that the first installment covered the material through the section dealing with Article 21 of the Jay Treaty and that the second installment consisted of the six paragraphs constituting a general conclusion. The last installment is headed “Supplementary remark” and was sent to Washington on July 11. See the postscript to Washington to H, July 13, 1795.
2. Article 1 of the Jay Treaty reads: “There shall be a firm inviolable and universal Peace, and a true and sincere Friendship between His Britannick Majesty, His Heirs and Successors, and the United States of America; and between their respective Countries, Territories, Cities, Towns and People of every Degree, without Exception of Persons or Places” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 245–46).
3. Article 2 of the Jay Treaty reads: “His Majesty will withdraw all His Troops and Garrisons from all Posts and Places within the Boundary Lines assigned by the Treaty of Peace to the United States. This Evacuation shall take place on or before the first Day of June One thousand seven hundred and ninety six, and all proper Measures shall in the interval be taken by concert between the Government of the United States, and His Majesty’s Governor General in America, for settling the previous arrangements which may be necessary respecting the delivery of the said Posts: The United States in the mean Time at Their discretion extending their settlements to any part within the said boundary line, except within the precincts or Jurisdiction of any of the said Posts. All Settlers and Traders, within the Precincts or Jurisdiction of the said Posts, shall continue to enjoy, unmolested, all their property of every kind, and shall be protected therein. They shall be at full liberty to remain there, or to remove with all or any part of their Effects; and it shall also be free to them to sell their Lands, Houses, or Effects, or to retain the property thereof, at their discretion; such of them as shall continue to reside within the said Boundary Lines shall not be compelled to become Citizens of the United States, or to take any Oath of allegiance to the Government thereof, but they shall be at full liberty so to do, if they think proper, and they shall make and declare their Election within one year after the Evacuation aforesaid. And all persons who shall continue there after the expiration of the said year, without having declared their intention of remaining Subjects of His Britannick Majesty, shall be considered as having elected to become Citizens of the United States” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 246).
The posts which Great Britain still held in 1795 were Dutchman’s Point and Pointe-au-Fer at the northern end of Lake Champlain; Oswegatchie at the junction of that river with the St. Lawrence; Oswego at the mouth of the Oswego River on Lake Ontario; Niagara, between lakes Ontario and Erie; Detroit, between lakes Erie and Huron; and Michilimackinac (Mackinac), between lakes Huron and Michigan.
4. On November 19, 1794, John Jay wrote to Secretary of State Edmund Randolph: “The term limited for the evacuation of the posts, could not be restricted to a more early day—that point has been pressed. The reasons which caused an inflexible adherence to that term, I am persuaded were these, vizt. that the traders have spread through the Indian Nations goods to a great amount—That the returns for those goods cannot be drawn into Canada, at an earlier period; that the impression which the surrender of all the posts to American garrisons, will make on the minds of the Indians cannot be foreseen. On a former occasion it was intimated to them (not very delicately) that they had been forsaken and given up to the United States: that the protection promised on our part, however sincere and however in other respects competent, cannot entirely prevent those embarrassments, which without our fault, may be occasioned by the war. That for these reasons, the traders ought to have time to conclude their adventures which were calculated on the existing state of things—they will afterwards calculate on the new state of things; but that in the mean time the care of Government should not be withdrawn from them” (LC, RG 59, Despatches from United States Ministers to Great Britain, 1791–1906, Vol. 1, April 19, 1794–June 1, 1795, National Archives).
5. This is a reference to the definitive treaty of peace between the United States and Great Britain, signed September 3, 1783 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 151–56).
6. This is a revised version of this paragraph, for H first wrote and then crossed out the following: “Besides, that it appears to me morally certain from the course of events that there will be no disposition to risk a rupture in this Country by the non compliance with the stipulation. In the present & probable situation of G Britain no ministry could be rash and foolish enough to act such a part; if nothing happens on our side to give a reasonable ground of non-compliance.”
8. Article 3 reads: “It is agreed that it shall at all Times be free to His Majesty’s Subjects, and to the Citizens of the United States, and also to the Indians dwelling on either side of the said Boundary Line freely to pass and repass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America (the Country within the Limits of the Hudson’s Bay Company only excepted) and to navigate all the Lakes, Rivers, and waters thereof, and freely to carry on trade and commerce with each other. But it is understood, that this Article does not extend to the admission of Vessels of the United States into the Sea Ports, Harbours, Bays, or Creeks of His Majesty’s said Territories; nor into such parts of the Rivers in His Majesty’s said Territories as are between the mouth thereof, and the highest Port of Entry from the Sea, except in small vessels trading bonâ fide between Montreal and Quebec, under such regulations as shall be established to prevent the possibility of any Frauds in this respect. Nor to the admission of British vessels from the Sea into the Rivers of the United States, beyond the highest Ports of Entry for Foreign Vessels from the Sea. The River Mississippi, shall however, according to the Treaty of Peace be entirely open to both Parties; And it is further agreed, That all the ports and places on its Eastern side, to whichsoever of the parties belonging, may freely be resorted to, and used by both parties, in as ample a manner as any of the Atlantic Ports or Places of the United States, or any of the Ports or Places of His Majesty in Great Britain.
“All Goods and Merchandize whose Importation into His Majesty’s said Territories in America, shall not be entirely prohibited, may freely, for the purposes of Commerce, be carried into the same in the manner aforesaid, by the Citizens of the United States, and such Goods and Merchandize shall be subject to no higher or other Duties than would be payable by His Majesty’s Subjects on the Importation of the same from Europe into the said Territories. And in like manner, all Goods and Merchandize whose Importation into the United States shall not be wholly prohibited, may freely, for the purposes of Commerce, be carried into the same, in the manner aforesaid, by His Majesty’s Subjects, and such Goods and Merchandize shall be subject to no higher or other Duties than would be payable by the Citizens of the United States on the Importation of the same in American Vessels into the Atlantic Ports of the said States. And all Goods not prohibited to be exported from the said Territories respectively, may in like manner be carried out of the same by the Two Parties respectively, paying Duty as aforesaid.
“No Duty of Entry shall ever be levied by either Party on Peltries brought by Land, or Inland Navigation into the said Territories respectively, nor shall the Indians passing or repassing with their own proper Goods and Effects of whatever nature, pay for the same any Impost or Duty whatever. But Goods in Bales, or other large Packages unusual among Indians shall not be considered as Goods belonging bonâ fide to Indians.
“No higher or other Tolls or Rates of Ferriage than what are, or shall be payable by Natives, shall be demanded on either side; And no Duties shall be payable on any Goods which shall merely be carried over any of the Portages, or carrying Places on either side, for the purpose of being immediately reimbarked, and carried to some other Place or Places. But as by this Stipulation it is only meant to secure to each Party a free passage across the Portages on both sides, it is agreed, that this Exemption from Duty shall extend only to such Goods as are carried in the usual and direct Road across the Portage, and are not attempted to be in any manner sold or exchanged during their passage across the same, and proper Regulations may be established to prevent the possibility of any Frauds in this respect.
“As this Article is intended to render in a great Degree the local advantages of each Party common to both, and thereby to promote a disposition favourable to Friendship and good neighbourhood, It is agreed, that the respective Governments will mutually promote this amicable Intercourse, by causing speedy and impartial Justice to be done, and necessary protection to be extended, to all who may be concerned threin.” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 246–48.)
9. Sir Edward Coke, in his chapter on the English Court of the Admiralty, wrote: “… And therefore where it is said in 2 Ass. pl. 93. that every water which flows and reflows, is an Arm of the Sea, yet it followeth not that the Admiral shall have Jurisdiction there, unless it be out of every County, or else such a place whereof the County cannot take knowledge, as it appeareth in the book of 8 E. 2. before cited” (The Fourth Part of the Institutes of the Laws of England: Concerning The Jurisdiction of Courts. The Sixth Edition [London: Printed by W. Rawlins, for Thomas Basset at the George near St. Dunstans Church in Fleet-street, 1681], Ch. 22, 141).
For examples of legislation in the United States, see “An Act to regulate the Collection of the Duties imposed by law on the tonnage of ships or vessels, and on goods, wares and merchandises imported into the United States” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 29–49 [July 31, 1789]); “An Act to provide more effectually for the collection of duties imposed by law on goods, wares and merchandise imported into the United States, and on the tonnage of ships and vessels” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 145–78 [August 4, 1790]); and “An Act supplementary to the act, intituled ‘An act to provide more effectually for the collection of the Duties on goods, wares and merchandise imported into the United States, and on the tonnage of ships or vessels’” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 420–23 [February 26, 1795]).
10. Article 4 reads: “Whereas it is uncertain whether the River Mississippi extends so far to the Northward as to be intersected by a Line to be drawn due West from the Lake of the woods in the manner mentioned in the Treaty of Peace between His Majesty and the United States, it is agreed, that measures shall be taken in Concert between His Majesty’s Government in America, and the Government of the United States, for making a joint Survey of the said River, from one Degree of Latitude below the falls of St Anthony to the principal Source or Sources of the said River, and also of the parts adjacent thereto. And that if on the result of such Survey it should appear that the said River would not be intersected by such a Line as is above mentioned; The two Parties will thereupon proceed by amicable negotiation to regulate the Boundary Line in that quarter as well as all other Points to be adjusted between the said Parties, according to Justice and mutual Convenience, and in Conformity, to the Intent of the said Treaty” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 248).
11. See note 5.
12. Article 5 reads: “Whereas doubts have arisen what River was truly intended under the name of the River St Croix mentioned in the said Treaty of Peace and forming a part of the boundary therein described, that question shall be referred to the final Decision of Commissioners to be appointed in the following Manner—Viz—
“One Commissioner shall be named by His Majesty, and one by the President of the United States, by and with the advice and Consent of the Senate thereof, and the said two Commissioners shall agree on the choice of a third, or, if they cannot so agree, They shall each propose one Person, and of the two names so proposed one shall be drawn by Lot, in the presence of the two original Commissioners. And the three Commissioners so appointed shall be Sworn impartially to examine and decide the said question according to such Evidence as shall respectively be laid before Them on the part of the British Government and of the United States. The said Commissioners shall meet at Halifax and shall have power to adjourn to such other place or places as they shall think fit. They shall have power to appoint a Secretary, and to employ such Surveyors or other Persons as they shall judge necessary. The said Commissioners shall by a Declaration under their Hands and Seals, decide what River is the River St Croix intended by the Treaty. The said Declaration shall contain a description of the said River, and shall particularize the Latitude and Longitude of its mouth and of its Source. Duplicates of this Declaration and of the Statements of their Accounts, and of the Journal of their proceedings, shall be delivered by them to the Agent of His Majesty, and to the Agent of the United States, who may be respectively appointed and authorized to manage the business on behalf of the respective Governments. And both parties agree to consider such decision as final and conclusive, so that the same shall never thereafter be called into question, or made the subject of dispute or difference between them.” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 249.)
13. Article 6 reads: “Whereas it is alledged by divers British Merchants and others His Majesty’s Subjects, that Debts to a considerable amount which were bonâ fide contracted before the Peace, still remain owing to them by Citizens or Inhabitants of the United States, and that by the operation of various lawful Impediments since the Peace, not only the full recovery of the said Debts has been delayed, but also the Value and Security thereof, have been in several instances impaired and lessened, so that by the ordinary course of Judicial proceedings the British Creditors, cannot now obtain and actually have and receive full and adequate Compensation for the losses and damages which they have thereby sustained: It is agreed that in all such Cases where full Compensation for such losses and damages cannot, for whatever reason, be actually obtained had and received by the said Creditors in the ordinary course of Justice, The United States will make full and complete Compensation for the same to the said Creditors; But it is distinctly understood, that this provision is to extend to such losses only, as have been occasioned by the lawful impediments aforesaid, and is not to extend to losses occasioned by such Insolvency of the Debtors or other Causes as would equally have operated to produce such loss, if the said impediments had not existed, nor to such losses or damages as have been occasioned by the manifest delay or negligence, or wilful omission of the Claimant.
“For the purpose of ascertaining the amount of any such losses and damages, Five Commissioners shall be appointed and authorized to meet and act in manner following—viz—Two of them shall be appointed by His Majesty, Two of them by the President of the United States by and with the advice and consent of the Senate therof, and the fifth, by the unanimous voice of the other Four; and if they should not agree in such Choice, then the Commissioners named by the two parties shall respectively propose one person, and of the two names so proposed, one shall be drawn by Lot in the presence of the Four Original Commissioners. When the Five Commissioners thus appointed shall first meet, they shall before they proceed to act respectively, take the following Oath or Affirmation in the presence of each other, which Oath or Affirmation, being so taken, and duly attested, shall be entered on the Record of their Proceedings,—viz.—I. A: B: One of the Commissioners appointed in pursuance of the 6th Article of the Treaty of Amity, Commerce and Navigation between His Britannick Majesty and The United States of America, do solemnly swear (or affirm) that I will honestly, diligently, impartially, and carefully examine, and to the best of my Judgement, according to Justice and Equity decide all such Complaints, as under the said Article shall be preferred to the said Commissioners: and that I will forbear to act as a Commissioner in any Case in which I may be personally interested.
“Three of the said Commissioners shall constitute a Board, and shall have power to do any act appertaining to the said Commission, provided that one of the Commissioners named on each side, and the Fifth Commissioner shall be present, and all decisions shall be made by the Majority of the Voices of the Commissioners then present. Eighteen Months from the Day on which the said Commissioners shall form a Board, and be ready to proceed to Business are assigned for receiving Complaints and applications, but they are nevertheless authorized in any particular Cases in which it shall appear to them to be reasonable and just to extend the said Term of Eighteen Months, for any term not exceeding Six Months after the expiration thereof. The said Commissioners shall first meet at Philadelphia, but they shall have power to adjourn from Place to Place as they shall see Cause.
“The said Commissioners in examining the Complaints and applications so preferred to them, are impowered and required in pursuance of the true intent and meaning of this article to take into their Consideration all claims whether of principal or interest, or balances of principal and interest, and to determine the same respectively according to the merits of the several Cases, due regard being had to all the Circumstances thereof, and as Equity and Justice shall appear to them to require. And the said Commissioners shall have power to examine all such Persons as shall come before them on Oath or Affirmation touching the premises; and also to receive in Evidence according as they may think most consistent with Equity and Justice all written Depositions, or Books or Papers, or Copies or Extracts thereof. Every such Deposition, Book or Paper or Copy or Extract being duly authenticated either according to the legal Forms now respectively existing in the two Countries, or in such other manner as the said Commissioners shall see cause to require or allow.
“The Award of the said Commissioners or of any three of them as aforesaid shall in all Cases be final and conclusive, both as to the Justice of the Claim, and to the amount of the Sum to be paid to the Creditor or Claimant.—And the United States undertake to cause the Sum so awarded to be paid in Specie to such Creditor or Claimant without deduction; and at such Time or Times, and at such Place or Places, as shall be awarded by the said Commissioners, and on Condition of such Releases or assignments to be given by the Creditor or Claimant as by the said Commissioners may be directed; Provided always that no such payment shall be fixed by the said Commissioners to take place sooner then twelve months from the Day of the Exchange of the Ratifications of this Treaty.” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 249–51.)
14. This is a reference to Article 4 of the definitive treaty of peace between the United States and Great Britain, September 3, 1783, which reads: “It is agreed that Creditors on either Side shall meet with no lawful Impediment to the Recovery of the full Value in Sterling Money of all bona fide Debts heretofore contracted” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 154).
15. Vattel, for example, wrote: “When Alexander, by conquest, became absolute master of Thebes, he remitted to the Thessalians a hundred talents which they owed to the Thebans. The sovereign has naturally the same right over what his subjects may be indebted to enemies. Therefore he may confiscate debts of this nature, if the term of payment happen in the time of war, or at least he may prohibit his subjects from paying while the war lasts. But at present, in regard to the advantage and safety of commerce, all the sovereigns of Europe have departed from this rigour…. The state does not so much as touch the sums which it owes to the enemy. Every where, in case of a war, funds credited to the public are exempt from confiscation and seizure” (Vattel, Law of Nations description begins Emeric de Vattel, Law of Nations; or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns (London, 1759–1760). description ends , Book III, Ch. V, Sec. 77). See also Bynkershoek, “Whether the Enemy’s Actions and Credits May Properly be Confiscated at the Outbreak of War,” Quæstionum, Book I, Ch. VII, and Pufendorf, Of the Law of Nature and Nations description begins Of the Law of Nature and Nations. Eight Books. Written in Latin by the Baron Pufendorf, Counsellor of State to his late Swedish Majesty, and to the late King of Prussia. Done into English by Basil Kennett, D.D. late President of Corpus Christi College in Oxford. To which are added All the large Notes of Mr. Barbeyrac, Translated from the best Edition; Together with Large Tables to the Whole. The Fourth Edition, carefully Corrected (London: Printed for J. Walthoe, R. Wilkin, J. and J. Bonwicke, S. Birt, T. Ward, and T. Osborne, 1729). description ends , Book VIII, Ch. VI, Sec. 22, 23.
16. At this point H wrote and crossed out: “From Pennsylvania to New Hampshire inclusively no act ⟨int⟩erposing impediments is to be found.”
17. At this point H wrote and crossed out the following paragraphs: “It is a fact that judgments confiscating property contrary to the tenor of the provisional Treaty were entered up in this State immediately after the arrival & the ratification of the Provisional Treaty—and if I recollect right before the removal of the negroes by the British which is the first breach imputed to them.
“It is a fact that this State passed the law called the Trespass Act after a knowlege that a provisional Treaty had been concluded—an act which certainly aims at contravention of the laws of Nations and violates the amnesty implied in every Treaty of Peace, and though the effect of this act was partially controuled by a decision of our Mayors Court and never recurred the formal confirmation of a decision of our supreme Court; yet in proceedings against absent persons and in consequence of its being taken for granted by many that a defence was desperate, which was the general opinion of our bar, the Act had in fact a very extensive operation.
“The first legislature of this state after the evacuation of New York in the winter of 1783 passed a law taking away the writ of error in all cases of confiscation. This in my opinion was equivalent to new confiscations; for if, from the former proceedings being erroneous, the confiscations were invalid and ineffectual, a law giving them validity and effect was in substance a law making confiscations.
“I mention these particulars with regard to the State of New York because they passed more immediately under my own eye and are fresh in my memory. Early irregularities happened in other states—but I have too confused a recollection to attempt to retrace them.”
The acts to which H is referring are: “An Act for granting a more effectual Relief in Cases of certain Trespasses” (New York Laws, 6th Sess., Ch. XXXI [March 17, 1783]) and “An Act for the speedy Sale of the Confiscated and forfeited Estates within this State, and for other Purposes therein mentioned” (New York Laws, 7th Sess., Ch. LXIV [May 12, 1784]).
18. Vattel, for example, wrote: “Are prisoners of war to be made slaves? Yes; in cases which give a right to kill them, when they have rendered themselves personally guilty of some crime deserving death. The ancients used to sell their prisoners of war for slaves. They indeed thought they had a right of putting them to death. In every circumstance, when I cannot innocently take away my prisoner’s life, I have no right to make him a slave. If I spare his life, and condemn him to a state so contrary to the nature of man, I still continue with him the state of war. He is under no obligation to me, for what is life without freedom? …” (Law of Nations, Book III, Ch. VIII, Sec. 152).
Grotius wrote: “Among recoverable possessions are, first, male and female slaves, even when having been often alienated, or after manumission by the enemy. The reason is that it is not possible for one of our citizens, who is the owner of a slave, to be affected by a manumission in accordance with the law of the enemy, as Tryphoninus well observes. But for the recovery of a slave, it is necessary that he be actually held by his former master, or that he should be easily obtainable. Therefore, although in the case of other things it is enough for them to have been brought within the frontier, in the case of a slave this will not suffice for the fact of postliminy, unless the fact is also known …” (On the Law of War and Peace, Book III, Ch. IX, Sec. 11).
19. This is a quotation from Article 7 of the definitive treaty of peace between the United States and Great Britain, September 3, 1783, which reads: “There shall be a firm and perpetual Peace between his Britannic Majesty and the said States and between the Subjects of the one, and the Citizens of the other, wherefore all Hostilities both by Sea and Land shall from henceforth cease: All Prisoners on both Sides shall be set at Liberty, and his Britannic Majesty shall with all convenient speed, and without causing any Destruction, or carrying away any Negroes or other Property of the American Inhabitants, withdraw all his Armies, Garrisons & Fleets from the said United States, and from every Port, Place and Harbour within the same; leaving in all Fortifications the American Artillery that may be therein: And shall also Order & cause all Archives, Records, Deeds & Papers belonging to any of the said States, or their Citizens, which in the Course of the War may have fallen into the Hands of his Officers, to be forthwith restored and deliver’d to the proper States and Persons to whom they belong” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 155).
20. See, for example, James Madison to Edmund Randolph, May 13, 1783 (Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (Washington, 1921–1938). description ends , VII, 163–64).
21. At this point H first wrote and then crossed out: “If the British argument was right that they were not bound to surrender till after the exchange of ratifications of the definitive Treaty and that consequently they must have had reasonable time from that period to give orders for and carry the measure into execution, then laying aside the affair of the negroes, they could unequivocally fix upon us the first breach of the Treaty. But I am not satisfied of the truth of the position.”
22. The preliminary treaty of peace was signed at Paris on November 30, 1782. It was ratified by the United States on April 15, 1783, and by Great Britain on August 6, 1783. Ratifications were exchanged on August 13, 1783. It was proclaimed on April 15, 1783 (Miller, Treaties, 96–100).
The definitive treaty of peace was signed at Paris, September 3, 1783. It was ratified by the United States on January 14, 1784, and by Great Britain on April 9, 1784. Ratifications were exchanged on May 12, 1784. It was proclaimed on January 14, 1784 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 151–57).
23. Space left blank in MS. H is referring to Article 7 of the preliminary peace treaty with Great Britain, November 30, 1782. See H to Washington, April 15, 1783, and “Continental Congress. Report on the Ratification of the Provisional Peace Treaty,” April 15, 1783, note 1.
24. Space left blank in MS. On May 12, 1784, Congress “Resolved, That the commanding Officer of the troops now in the service of the United States be, and he is hereby directed to open a correspondence with the commander in chief of his Britannic Majesty’s forces in Canada, in order to ascertain the precise time when each of the posts within the territories of the United States, now occupied by British troops, shall be delivered up” (JCC description begins Journals of the Continental Congress 1774–1789 (Washington, 1904–1937). description ends , XXVII, 376).
25. See John Jay to Edmund Randolph, September 14, 1794 (LS, RG 59, Despatches from United States Ministers to Great Britain, 1791–1906, Vol. 1, April 19, 1794–June 1, 1795, National Archives). This letter is printed in ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, I, 485.
26. See Thomas Jefferson to George Hammond, May 29, 1792 (ADf, Thomas Jefferson Papers, Library of Congress). This letter is printed in ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, I, 203–37. For an explanation of H’s disagreement with Jefferson on this point, see H to Jefferson, May 20–27, 1792.
27. For Article 5 in both the provisional and definitive treaties of peace with Great Britain, see Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 98–99, 154.
28. See note 17.
29. See note 26.
30. “An Act to repeal Part of an Act, entitled, An Act for granting a more effectual Relief, in Cases of certain Trespasses,” states: “That so much of the Act aforesaid, as is contained in the Words following, to wit: And if any such Action shall be brought in any Inferior Court within this State, the same shall be finally determined in such Court; and every such Action shall be considered as a transitory Action. That no defendant or Defendants shall be admitted to plead in Justification, any Military Order or Command whatever, of the Enemy, for such Occupancy, Injury, Destruction, Purchase or Receipt, nor to give the same in Evidence on the General Issue: be and the same is hereby repealed” (New York Laws, 10th Sess., Ch. LXXI [April 4, 1787]). See also “New York Assembly. Remarks on an Act for Repealing Part of the Trespass Act,” March 21, 1787.
31. See Goebel, Law Practice description begins Julius Goebel, Jr., ed., The Law Practice of Alexander Hamilton: Documents and Commentary (New York and London, 1964– ) description ends , I, 282–419. See also H to Jefferson, April 19, May 20–27, 1792.
33. “An Act to amend an Act, entitled, an Act for Relief against absconding and absent Debtors; and to extend the Remedy of the Act, entitled, An Act for granting a more effectual Relief in Cases of certain Trespasses; and for other Purposes therein mentioned,” passed May 4, 1784 (New York Laws, 7th Sess., Ch. LIV).
34. Sir Guy Carleton, the last commander in chief of the British army in North America, left the United States in November, 1783. On April 6, 1783, he wrote to Robert R. Livingston that he had received news of the signing of the provisional articles of peace between Great Britain and the United States on January 19, and “In consequence thereof, and in conformity to the articles of peace, all our prisoners of War are to be set at liberty and restored, with all convenient dispatch; entertaining no doubt but that similar measures will be taken on the pan of the United States of America; In like manner no doubt can be entertained but that Congress, in conformity to the 5th. article of the Provisional treaty, will lose no time in earnestly recommending to the legislatures of the respective States, to provide for the restitution of confiscated estates, & to reconsider and revise all laws of confiscation, that they may be rendered perfectly consistent, not only with justice and equity, but with that spirit of conciliation, which, on the return of the blessings of peace, should universally prevail” (LS, New-York Historical Society, New York City).
35. See note 17.
36. “An Ordinance Respecting Suits for the Recovery of Debts” (South Carolina Laws, 1784 Sess. [March 26, 1784]).
37. On June 22, 1784, the House of Delegates of Virginia “Resolved that it is the opinion of this committee, That there has been an infraction on the part of Great Britain, of the 7th article of the treaty of peace between the United States of America and Great Britain, in detaining the slaves and other property of the citizens of the United States.
“… That the delegates representing this State in Congress, be instructed to lay before that body the subject matter of the preceding report and resolution, and to request from them a remonstrance to the British court, complaining of the aforesaid infraction of the treaty of peace, and desiring a proper reparation of the injuries consequent thereupon; that the said delegates be instructed to inform Congress, that the General Assembly has no inclination to interfere with the power of making treaties with foreign nations, which the confederation hath wisely vested in Congress; but it is conceived, that a just regard to the national honor and interest of the citizens of this Commonwealth, obliges the Assembly to withhold their co-operation in the complete fulfilment of the said treaty, until the success of the aforesaid remonstrance is known, or Congress shall signify their sentiments touching the premises.
“… That so soon as reparation is made for the aforesaid infraction, or Congress shall adjudge it indispensably necessary, such acts of the Legislature passed during the late war, as inhibit the recovery of British debts, ought to be repealed, and payment thereof made in such time and manner as shall consist with the exhausted situation of this Commonwealth.
“… That the further operation of all and every act or acts of Assembly concerning escheats and forfeitures from British subjects, ought to be prevented.” (Journal of the House of Delegates of the Commonwealth of Virginia; begun and held in the City of Richmond, In the County of Henrico, Monday, the Third Day of May, In the Year of Our Lord One Thousand Seven Hundred and Eighty-Four [Richmond, 1828], 73.)
38. On December 12, 1787, the Virginia legislature confirmed the third of these resolutions with “An act to repeal so much of all and every act or acts of assembly as prohibits the recovery of British debts.” This act carried a conditional clause, which reads: “Provided, That this act [the act of repeal] shall be suspended until the governor with the advice of council shall by his proclamation, notify to this state, that Great Britain hath delivered up to the United States the posts therein now occupied by British troops, which posts were stipulated by treaty to be given up to congress immediately after the conclusion of peace; and is also taking measures for the further fulfilment of the said treaty by delivering up the negroes belonging to the citizens of this state taken away contrary to the seventh article of the treaty, or by making such compensation for them as shall be satisfactory to congress” (Virginia Laws, 12th Sess., Ch. XXXIV).
39. Article 7 reads: “Whereas Complaints have been made by divers Merchants and others, Citizens of the United States, that during the course of the War in which His Majesty is now engaged they have sustained considerable losses and damage by reason of irregular or illegal Captures or Condemnations of their vessels and other property under Colour of authority or Commissions from His Majesty, and that from various Circumstances belonging to the said Cases adequate Compensation for the losses and damages so sustained cannot now be actually obtained, had and received by the ordinary Course of Judicial proceedings; It is agreed that in all such Cases where adequate Compensation cannot for whatever reason be now actually obtained, had and received by the said Merchants and others in the ordinary course of Justice, full and Complete Compensation for the same will be made by the British Government to the said Complainants. But it is distinctly understood, that this provision is not to extend to such losses or damages as have been occasioned by the manifest delay or negligence, or wilful omission of the Claimant.
“That for the purpose of ascertaining the amount of any such losses and damages Five Commissioners shall be appointed and authorized to act in London exactly in the manner directed with respect to those mentioned in the preceding Article, and after having taken the same Oath or Affirmation (mutatis mutandis). The same term of Eighteen Months is also assigned for the reception of Claims, and they are in like manner authorised to extend the same in particular Cases. They shall receive Testimony, Books, Papers and Evidence in the same latitude, and exercise the like discretion, and powers respecting that subject, and shall decide the Claims in question, according to the merits of the several Cases, and to Justice Equity and the Laws of Nations. The award of the said Commissioners or any such three of them as aforesaid, shall in all Cases be final and conclusive both as to the Justice of the Claim and the amount of the Sum to be paid to the Claimant; and His Britannick Majesty undertakes to cause the same to be paid to such Claimant in Specie, without any Deduction, at such place or places, and at such Time or Times as shall be awarded by the said Commissioners and on Condition of such releases or assignments to be given by the Claimant, as by the said Commissioners may be directed.
“And whereas certain merchants and others, His Majesty’s Subjects, complain that in the course of the war they have sustained Loss and Damage by reason of the Capture of their Vessels and Merchandize taken within the Limits and Jurisdiction of the States, and brought into the Ports of the same, or taken by Vessels originally armed in Ports of the said States:
“It is agreed that in all such cases where Restitution shall not have been made agreably to the tenor of the letter from Mr. Jefferson to Mr. Hammond dated at Philadelphia September 5th 1793. A Copy of which is annexed to this Treaty, the Complaints of the parties shall be, and hereby are referred to the Commissioners to be appointed by virtue of this article, who are hereby authorized and required to proceed in the like manner relative to these as to the other Cases committed to them, and the United States undertake to pay to the Complainants or Claimants in specie without deduction the amount of such Sums as shall be awarded to them respectively by the said Commissioners and at the times and places which in such awards shall be specified, and on Condition of such Releases or assignments to be given by the Claimants as in the said awards may be directed: And it is further agreed that not only the now existing Cases of both descriptions, but also all such as shall exist at the Time, of exchanging the Ratifications of this Treaty shall be considered as being within the provisions intent and meaning of this article.” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 252–53.)
40. Jefferson to Hammond, September 5, 1793 (ADf, letterpress copy, Thomas Jefferson Papers, Library of Congress). This letter, as H states, is annexed to the treaty and may be found in the printed version of the treaty (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 265–66).
42. Article 8 reads: “It is further agreed that the Commissioners mentioned in this and in the two preceding articles shall be respectively paid in such manner, as shall be agreed between the two parties, such agreement being to be settled at the Time of the exchange of the Ratifications of this Treaty. And all other Expences attending the said Commissions shall be defrayed jointly by the Two Parties, the same being previously ascertained and allowed by the Majority of the Commissioners. And in the case of Death, Sickness or necessary absence, the place of every such Commissioner respectively, shall be supplied in the same manner as such Commissioner was first appointed, and the new Commissioners shall take the same Oath, or Affirmation, and do the same Duties” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 253).
43. Article 9 reads: “It is agreed, that British Subjects who now hold Lands in the Territories of the United States, and American Citizens who now hold Lands in the Dominions of His Majesty, shall continue to hold them according to the nature and Tenure of their respective Estates and Titles therein, and may grant Sell or Devise the same to whom they please, in like manner as if they were Natives; and that neither they nor their Heirs or assigns shall, so far as may respect the said Lands, and the legal remedies incident thereto, be regarded as Aliens” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 253–54).
44. In the margin opposite this paragraph H wrote: “Mr. King who has critically examined this point is of opinion that it does not apply to such cases.” For Rufus King’s examination of “this point,” see “The Defence No. XVII,” September 22, 1795, note 1.
45. At the beginning of this paragraph H first wrote and then crossed out: “Indeed the power of making Treaties can know no constitutional limits except these. It cannot alter constitutions.”
46. H is referring to Articles 5 and 6 of the definitive treaty of peace with Great Britain (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 154–55).
47. Article 11 (originally 13) of the Franco-American Treaty of Amity and Commerce, February 6, 1778, reads: “The Subjects and Inhabitants of the said United States, or any one of them, shall not be reputed Aubains in France, & consequently shall be exempted from the Droit d’Aubaine or other similar Duty under what name soever. They may by Testament, Donation, or otherwise dispose of their Goods moveable and immoveable in favour of such Persons as to them shall seem good; and their Heirs, Subjects of the Said United States, residing whether in France or elsewhere, may succeed them ab intestat, without being obliged to obtain Letters of Naturalization, and without having the Effect of this Concession contested or impeded under Pretext of any Rights or Prerogatives of Provinces, Cities, or Private Persons. And the said Heirs, whether such by particular Title, or ab intestat, shall be exempt from all Duty called Droit de Detraction, or other Duty of the same kind; saving nevertheless, the local Rights or Duties as much and as long as similar ones are not established by the United States or any of them. The Subjects of the most Christian King shall enjoy on their Part, in all the Dominions of the sd. States, an entire and perfect Reciprocity relative to the Stipulations contained in the present Article.
“But it is at the same Time agreed that its Contents shall not affect the Laws made or that may be made hereafter in France against Emigrations, which shall remain in all their Force and Vigour; and the United States on their Part, or any of them, shall be at Liberty to enact such Laws relative to that Matter, as to them shall seem proper.” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 11–12.)
48. Article 10 reads: “Neither the Debts due from Individuals of the one Nation, to Individuals of the other, nor shares nor monies, which they may have in the public Funds, or in the public or private Banks shall ever, in any Event of war, or national differences, be sequestered, or confiscated, it being unjust and impolitick that Debts and Engagements contracted and made by Individuals having confidence in each other, and in their respective Governments, should ever be destroyed or impaired by national authority, on account of national Differences and Discontents” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 254).
49. Vattel, for example, wrote: “The sovereign declaring war can neither detain those subjects of the enemy who are within his dominions at the time of the declaration, nor their effects. They came into his country on the public faith. By permitting them to enter his territories, and continue there, he tacitly promised them liberty and security for their return. He is therefore to allow them a reasonable time for withdrawing their effects, and if they stay beyond the term prescribed he has a right to treat them as enemies; tho’ as enemies disarmed …” (Law of Nations, Book III, Ch. IV, Sec. 63). He also wrote: “… He who declares war does not confiscate the immoveable goods possessed in his country by his enemy’s subjects. In permitting them to purchase and possess those goods, he has in this respect admitted them into the number of his subjects. But the income may be sequestrated, for hindering the remittance of it to the enemy’s country” (Law of Nations, Book III, Ch. V, Sec. 76).
50. Such acts were passed by Georgia and Virginia. For example, see Section 5 of the Georgia act entitled “An Act for inflicting Penalties on and Confiscating the Estates of such Persons as are therein declared guilty of Treason, and for other Purposes therein mentioned,” May 4, 1782 (copy, Microfilm Collection of Early State Records, Library of Congress), and the Virginia act entitled “An act for Sequestering British Property, enabling those indebted to British subjects to pay off such debts, and directing the proceedings in suits where such subjects are parties” (Virginia Laws, 2nd Sess., Ch. IX [October, 1777]). For a discussion of these and other sequestration acts, see Moore, International Adjudications description begins John Bassett Moore, ed., International Adjudications: Ancient and Modern, History and Documents, Together with Mediatorial Reports, Advisory Opinions, and the Decisions of Domestic Commissions, on International Claims (New York, 1929–1936). description ends , III.
51. Article 11 reads: “It is agreed between His Majesty and the United States of America, that there shall be a reciprocal and entirely perfect Liberty of Navigation and Commerce, between their respective People, in the manner, under the Limitations, and on the Conditions specified in the following Articles” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 254).
53. In a letter enclosing a copy of the treaty, Jay wrote on November 19, 1794, to Secretary of State Edmund Randolph: “The 12th. article admitting our vessels of seventy tons and under into the british Islands in the West Indies, affords occasion for several explanatory remarks; it became connected with a proposed stipulation for the abolition of all aliens duties, of every kind between the two countries. This proposition was pressed, but strong objections opposed my agreeing to it…. The duration of this article is short but if we meet the disposition of this country to good humour and cordiality, I am much inclined to believe it will be renewed; the duration of the treaty is connected with the renewal of that article, and an opportunity will then offer for discussing and settling many important matters” (LC, RG 59, Despatches from United States Ministers to Great Britain, 1791–1906, Vol. 1, April 19, 1794–June 1, 1795, National Archives).
54. Article 13 reads: “His Majesty consents that the Vessels belonging to the Citizens of the United States of America, shall be admitted and Hospitably received in all the Sea Ports and Harbours of the British Territories in the East Indies: and that the Citizens of the said United States, may freely carry on a Trade between the said Territories and the said United States, in all articles of which the Importation or Exportation respectively to or from the said Territories, shall not be entirely prohibited; Provided only, that it shall not be lawful for them in any time of War between the British Government, and any other Power or State whatever, to export from the said Territories without the special Permission of the British Government there, any Military Stores, or Naval Stores, or Rice. The Citizens of the United States shall pay for their Vessels when admitted into the said Ports, no other or higher Tonnage Duty than shall be payable on British Vessels when admitted into the Ports of the United States. And they shall pay no other or higher Duties or Charges on the importation or exportation of the Cargoes of the said Vessels, than shall be payable on the same articles when imported or exported in British Vessels. But it is expressly agreed, that the Vessels of the United States shall not carry any of the articles exported by them from the said British Territories to any Port or Place, except to some Port or Place in America, where the same shall be unladen, and such Regulations shall be adopted by both Parties, as shall from time to time be found necessary to enforce the due and faithfull observance of this Stipulation: It is also understood that the permission granted by this article is not to extend to allow the Vessels of the United States to carry on any part of the Coasting Trade of the said British Territories, but Vessels going with their original Cargoes, or part thereof, from one port of discharge to another, are not to be considered as carrying on the Coasting Trade. Neither is this Article to be construed to allow the Citizens of the said States to settle or reside within the said Territories, or to go into the interior parts thereof, without the permission of the British Government established there; and if any transgression should be attempted against the Regulations of the British Government in this respect, the observance of the same shall and may be enforced against the Citizens of America in the same manner as against British Subjects, or others transgressing the same rule. And the Citizens of the United States, whenever they arrive in any Port or Harbour in the said Territories, or if they should be permitted in manner aforesaid, to go to any other place therein, shall always be subject to the Laws, Government and Jurisdiction, of what nature, established in such Harbour, Port or Place according as the same may be: The Citizens of the United States, may also touch for refreshment, at the Island of St Helena, but subject in all respects to such regulations, as the British Government may from time to time establish there” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 255–56).
55. From 1784, when the first United States ship docked at Madras, until the signing of the Jay Treaty, American trade with India was insignificant compared with that of Great Britain. Under the circumstances, the American trade was tolerated by the East India Company, and a circuitous trade developed by which American ships on their return voyages delivered some Indian merchandise to European ports. The British government attempted to prevent this indirect trade in Article 13 of the Jay Treaty by prohibiting the export of Indian goods in American ships to any country other than the United States. See Holden Furber, “The Beginnings of American Trade with India, 1784–1812,” The New England Quarterly, XI (June, 1938), 235–65.
56. Article 14 reads: “There shall be between all the Dominions of His Majesty in Europe, and the Territories of the United States, a reciprocal and perfect liberty of Commerce and Navigation. The people and Inhabitants of the Two Countries respectively, shall have liberty, freely and securely, and without hindrance and molestation, to come with their Ships and Cargoes to the Lands, Countries, Cities, Ports Places and Rivers within the Dominions and Territories aforesaid, to enter into the same, to resort there, and to remain and reside there, without any limitation of Time: also to hire and possess, Houses and warehouses for the purposes of their Commerce; and generally the Merchants and Traders on each side, shall enjoy the most complete protection and Security for their Commerce; but subject always, as to what respects this article, to the Laws and Statutes of the Two Countries respectively” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 257).
57. Article 15 reads: “It is agreed, that no other or higher Duties shall be paid by the Ships or Merchandize of the one Party in the Ports of the other, than such as are paid by the like vessels or Merchandize of all other Nations. Nor shall any other or higher Duty be imposed in one Country on the importation of any articles, the growth, produce, or manufacture of the other, than are or shall be payable on the importation of the like articles being of the growth, produce or manufacture of any other Foreign Country. Nor shall any prohibition be imposed, on the exportation or importation of any articles to or from the Territories of the Two Parties respectively which shall not equally extend to all other Nations.
“But the British Government reserves to itself the right of imposing on American Vessels entering into the British Ports in Europe a Tonnage Duty, equal to that which shall be payable by British Vessels in the Ports of America: And also such Duty as may be adequate to countervail the difference of Duty now payable on the importation of European and Asiatic Goods when imported into the United States in British or in American Vessels.
“The Two Parties agree to treat for the more exact equalization of the Duties on the respective Navigation of their Subjects and People in such manner as may be most beneficial to the two Countries. The arrangements for this purpose shall be made at the same time with those mentioned at the Conclusion of the 12th Article of this Treaty, and are to be considered as a part thereof. In the interval it is agreed, that the United States will not impose any new or additional Tonnage Duties on British Vessels, nor increase the now subsisting difference between the Duties payable on the importation of any articles in British or in American Vessels.” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 257–58.)
58. Article 16 reads: “It shall be free for the Two Contracting Parties respectively, to appoint Consuls for the protection of Trade, to reside in the Dominions and Territories aforesaid; and the said Consuls shall enjoy those Liberties and Rights which belong to them by reason of their Function. But before any Consul shall act as such, he shall be in the usual forms approved and admitted by the party to whom he is sent, and it is hereby declared to be lawful and proper, that in case of illegal or improper Conduct towards the Laws or Government, a Consul may either be punished according to Law, if the Laws will reach the Case, or be dismissed or even sent back, the offended Government assigning to the other, Their reasons for the same.
“Either of the Parties may except from the residence of Consuls such particular Places, as such party shall judge proper to be so excepted.” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 258.)
59. Article 17 reads: “It is agreed that, in all Cases where Vessels shall be captured or detained on just suspicion of having on board Enemy’s property or of carrying to the Enemy, any of the articles which are Contraband of war; The said Vessel shall be brought to the nearest or most convenient Port, and if any property of an Enemy, should be found on board such Vessel, that part only which belongs to the Enemy shall be made prize, and the Vessel shall be at liberty to proceed with the remainder without any Impediment. And it is agreed that all proper measures shall be taken to prevent delay, in deciding the Cases of Ships or Cargoes so brought in for adjudication, and in the payment or recovery of any Indemnification adjudged or agreed to be paid to the masters or owners of such Ships” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 258).
60. The principles of the first Armed Neutrality were declared in 1780 by Catharine II of Russia to the courts of London, Versailles, and Madrid. They were acceded to first by Sweden and Denmark and later (between 1781 and 1783) by the Netherlands, Prussia, the Austrian Empire, Portugal, and the Two Sicilies. The first two points of the declaration were: “That neutral vessels may navigate freely from port to port and along the coasts of the nations at war.
“That the effects belonging to subjects of the said Powers at war shall be free on board neutral vessels, with the exception of contraband merchandise.” (James Brown Scott, ed., The Armed Neutralities of 1780 and 1800 [New York, 1918], 274.)
Grotius (On the Law of War and Peace, Book III, Ch. VI, Sec. 6, note 1), Vattel (Law of Nations, Book III, Ch. VII, Sec. 115), and Bynkershoek all agree in principle that enemy goods are liable to seizure when found on neutral ships. Bynkershoek contradicts Vattel in objecting to the idea that the captor should refund the master of the seized vessel the cost of freight, since “the freight is not due unless the goods are carried to the port of destination” (Quæstionum, Book I, Ch. XIV, 88). Bynkershoek also cites various treaties which embodied the principle “free ships, free goods,” before concluding: “… we must rather consider the dictates of reason than the phraseology of treaties. And in consulting reason, I cannot see why it should not be lawful to seize enemy goods found in neutral ships, for this is only taking what belongs to the enemy and falls to the victor by the laws of war” (Quæstionum Book I, Ch. XIV, 88).
Martens, however, adopts the standpoint of the League of Armed Neutrality, for he states: “… since a belligerent power cannot exercise hostilities in a neutral place, nor confiscate property belonging to neutral subjects, such power ought not to confiscate the goods of an enemy found in a neutral vessel, navigating on a free or a neutral sea … provided, however … such goods are not warlike stores” (Law of Nations, Book VIII, Ch. VI, Sec. 10). He also states: “It was formerly a rule … to confiscate the goods of an enemy found on board of a neutral vessel. But the disputes arising from the observance of this rule, and the very great inconvenience it brought on the commerce of neutral nations, gave rise to an entirely new principle … [which] has been adopted in almost all the treaties of commerce made since the middle of the seventeenth century …” (Law of Nations, Book VIII, Ch. VI, Sec. 16).
61. On December 15, 1780, Washington wrote to Samuel Huntington, then President of the Continental Congress: “The accession of Holland and Portugal to the Northern League of Neutrality will be undoubtedly very embarrassing to Great Britain. But this, I think, may be relied upon, that, the more she is insulted and oppressed by the European Powers, the more she will endeavour to revenge herself upon us …” (Df, in the handwriting of David Humphreys, George Washington Papers, Library of Congress; GW description begins John C. Fitzpatrick, ed., The Writings of George Washington (Washington, 1931–1944). description ends , XX, 477–79). On December 20, 1793, Jefferson, after America’s neutrality had been brought into question by incidents arising from the war between Great Britain and France, wrote: “It cannot be denied that according to the general law of nations the goods of an enemy are lawful prize in the bottom of a friend, and the goods of a friend privileged in the bottom of an enemy; or in other words that the goods follow the owner. The inconvenience of this principle in subjecting neutral vessels to vexatious searches at sea, has for more than a century rendered it usual for nations to substitute a conventional principle that the goods shall follow the bottom instead of the natural one before mentioned. France had done it in all her treaties; so I believe had Spain before the American Revolution. Britain had not done it. When that war had involved those powers, Russia foreseeing that her commerce would be much harrassed by the British ships engaged Denmark, Sweden, & Portugal to arm, & to declare that the conventional principle should be observed by the powers at war towards neutrals, & that they would make common cause against the party who should violate it; declaring expressly at the same time that that convention should be in force only during the war then existing. Holland acceded to the convention, & Britain instantly attacked her. But the other neutral powers did not think proper to comply with their stipulation of making common cause. France declared at once that she would conform to the conventional principle: this in fact imposed no new obligation on her; for she was already bound by her treaties with all those powers to observe that principle. Spain made the same declaration. Congress gave similar orders to their vessels. But Congress afterwards gave instructions to their ministers abroad not to engage them in any future combination of powers for the general enforcement of the conventional principle that goods should follow the bottom, as this might at some time or other engage them in a war for other nations, but to introduce the principle separately with every nation by the treaties they were authorized to make with each. It had been already done with France & Holland, and it was afterwards done with Prussia, & made a regular part in every treaty they proposed to others …” (ADf, Thomas Jefferson Papers, Library of Congress).
The instructions of Congress to which Jefferson refers were those of October 29, 1783, sent to the commissioners (Jefferson, John Adams, and Benjamin Franklin) for negotiating treaties of amity and commerce with the European nations at the Court of Versailles. The fifth section of the instructions reads: “The acquisition of Support to the independence of the United States having been the primary object of the instructions to our Ministers respecting the Convention of the neutral maritime powers for maintaining the freedom of Commerce, you will observe that the necessity of such Support is superceded by the Treaties lately entered into for restoring peace. And although Congress approve of the principles of that Convention … yet they are unwilling at this juncture to become a party to a Confederacy which may hereafter too far complicate the interests of the United States with the politics of Europe, and therefore … it is the desire of Congress and their instruction to each of the Ministers of the United States at the respective Courts in Europe, that no further measures be taken at present towards the admission of the United States into that Confederacy” (Julian Boyd, The Papers of Thomas Jefferson, VII [Princeton, 1953], 266). A later set of instructions, dated May 7, 1784, contains the provision that all such treaties should stipulate “That in the same case where either of the contracting Parties shall happen to be engaged in War with any other power, all goods not contraband belonging to the Subjects of that other power and shipped in the bottoms of the party hereto, who is not engaged in the War shall be entirely free …” (Boyd, Papers of Thomas Jefferson, VII, 268).
After the outbreak of war between Great Britain and France, Edmond Charles Genet, the French Minister to the United States, complained in a letter of July 9, 1793, to Jefferson about the seizure by the British of French citizens and their goods from American ships (letterpress copy, Thomas Jefferson Papers, Library of Congress). Jefferson, in a reply dated July 24, 1793, disclaimed the principle “free ships make free goods” as a general rule. He then explained that, while the United States had a treaty with France based on this principle, it had no such treaty with England. “I believe it cannot be doubted,” he wrote, “but that, by the general law of nations the goods of a friend found in the vessel of an enemy are free, and the goods of an enemy found in the vessel of a friend are lawful prize. Upon this principle, I presume, the British armed vessels have taken the property of French Citizens found in our vessels, in the cases above mentioned and I confess I should be at a loss on what principle to reclaim it…. With England, Spain, Portugal, and Austria we have no treaties: therefore we have nothing to oppose their acting according to the general law of Nations …” (letterpress copy, Thomas Jefferson Papers, Library of Congress).
62. On this point Bynkershoek wrote: “… a distinction must be made between the case where both lawful and unlawful goods belong to the same owner and that in which they belong to different persons: if they belong to the same person, everything is condemned for the purpose of checking wrong-doing, but if they belonged to different shippers then one must not suffer for the wrongs of the other …” (Quæstionum, Book I, Ch. XII, 78).
63. Article 18 reads: “In order to regulate what is in future to be esteemed Contraband of war, it is agreed that under the said Denomination shall be comprized all Arms and Implements serving for the purposes of war by Land or Sea; such as Cannon, Muskets, Mortars, Petards, Bombs, Grenades Carcasses, Saucisses, Carriages for Cannon, Musket rests, Bandoliers, Gunpowder, Match, Saltpetre, Ball, Pikes, Swords, Headpieces Cuirasses Halberts Lances Javelins, Horsefurniture, Holsters, Belts and, generally all other Implements of war, as also Timber for Ship building, Tar or Rosin, Copper in Sheets, Sails, Hemp, and Cordage, and generally whatever may serve directly to the equipment of Vessels, unwrought Iron and Fir planks only excepted, and all the above articles are hereby declared to be just objects of Confiscation, whenever they are attempted to be carried to an Enemy.
“And Whereas the difficulty of agreeing on the precise Cases in which alone Provisions and other articles not generally contraband may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise: It is further agreed that whenever any such articles so becoming Contraband according to the existing Laws of Nations, shall for that reason be seized, the same shall not be confiscated, but the owners thereof shall be speedily and completely indemnified; and the Captors, or in their default the Government under whose authority they act, shall pay to the Masters or Owners of such Vessels the full value of all such Articles, with a reasonable mercantile Profit thereon, together with the Freight, and also the Demurrage incident to such Detension.
“And Whereas it frequently happens that vessels sail for a Port or Place belonging to an Enemy, without knowing that the same is either besieged, blockaded or invested; It is agreed, that every Vessel so circumstanced may be turned away from such Port or Place, but she shall not be detained, nor her Cargo, if not Contraband, be confiscated; unless after notice she shall again attempt to enter; but She shall be permitted to go to any other Port or Place She may think proper: Nor shall any vessel or Goods of either party, that may have entered into such Port or Place before the same was besieged, blockaded or invested by the other, and be found therein after the reduction or surrender of such place, be liable to confiscation, but shall be restored to the Owners or proprietors thereof.” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 258–59.)
64. Grotius (On the Law of War and Peace, Book III, Ch. I, Sec. 5), Bynkershoek (Quæstionum, Book I, Ch. X, 68), Martens (Law of Nations, Book VIII, Ch. VI, Sec. 12), and Vattel (Law of Nations, Book III, Ch. VII, Sec. 112) agree on the general principle that all things essential to the waging of war, carried in neutral ships to powers at war, are contraband. Beyond this, however, they differ about what actually constitutes contraband.
65. Grotius wrote: “There are some things, such as weapons, which are useful only in war; other things which are of no use in war, as those which minister to pleasure; and others still which are of use both in time of war and at other times, as money, provisions, ships and naval equipment….
“Regarding things of the third sort, useful in both war and peace, we must take into account the conditions of the war. For, if I am unable to protect myself without intercepting the goods which are being sent to the enemy, necessity, as we have elsewhere said, will give me a right to intercept such goods, but with the obligation to make restitution, unless other cause arises.” (On the Law of War and Peace, Book III, Ch. I, Sec. 5.)
Bynkershoek (Quæstionum, Book I, Ch. X) and Vattel (Law of Nations, Book III, Ch. VII, Sec. 112–13), however, both state that articles of the third class seized in time of war should be confiscated without restitution. See also Martens, Law of Nations description begins G. F. von Martens, A Compendium of the Law of Nations, Founded on the Treaties and Customs of the Modern Nations of Europe: To Which is Added, a Complete List of All the, Treaties Conventions, Compacts, Declarations, &c. From the Year 1731 to 1788, Inclusive, Indicating the Several Works in Which They are to be Found. Translated, and the List of Treaties, &c, brought down to June, 1802, By William Cobbett (London: Cobbett and Morgan, 1802). description ends , Book VIII, Ch. VI, Sec. 8.
66. This is a reference to the British order in council of June 8, 1793 (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, I, 240). Commanders of British warships were instructed to stop all ships carrying corn, flour, or meal to France and cause the cargo to be sold either to agents or to allies of Great Britain; to seize all ships on their first attempt (except those of Denmark and Sweden, which were to be seized on their second attempt) at entering a blockaded port; and to seize all ships which appeared to be bound for a blockaded port unless their captains were ignorant of the blockade. In the last instance, captains were first to be warned, and their ships then seized if they persisted.
67. Article 19 reads: “And that more abundant Care may be taken for the security of the respective Subjects and Citizens of the Contracting Parties, and to prevent their suffering Injuries by the Men of war, or Privateers of either Party, all Commanders of Ships of war and Privateers and all others the said Subjects and Citizens shall forbear doing any Damage to those of the other party, or committing any Outrage against them, and if they act to the contrary, they shall be punished, and shall also be bound in their Persons and Estates to make satisfaction and reparation for all Damages, and the interest thereof, of whatever nature the said Damages may be.
“For this cause all Commanders of Privateers before they receive their Commissions shall hereafter be obliged to give before a Competent Judge, sufficient security by at least Two responsible Sureties, who have no interest in the said Privateer, each of whom, together with the said Commander, shall be jointly and severally bound in the Sum of Fifteen hundred pounds Sterling, or if such Ships be provided with above One hundred and fifty Seamen or Soldiers, in the Sum of Three thousand pounds sterling, to satisfy all Damages and Injuries, which the said Privateer or her Officers or Men, or any of them may do or commit during their Cruize contrary to the tenor of this Treaty, or to the Laws and Instructions for regulating their Conduct; and further that in all Cases of Aggressions the said Commissions shall be revoked and annulled.
“It is also agreed that whenever a Judge of a Court of Admiralty of either of the Parties, shall pronounce sentence against any Vessel or Goods or Property belonging to the Subjects or Citizens of the other Party a formal and duly authenticated Copy of all the proceedings in the Cause, and of the said Sentence, shall if required be delivered to the Commander of the said Vessel, without the smallest delay, he paying all legal Fees and Demands for the same.” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 259–60.)
Article 20 reads: “It is further agreed that both the said Contracting Parties, shall not only refuse to receive any Pirates into any of their Ports, Havens, or Towns, or permit any of their Inhabitants to receive, protect, harbour conceal or assist them in any manner, but will bring to condign punishment all such Inhabitants as shall be guilty of such Acts or offences.
“And all their Ships with the Goods or Merchandizes taken by them and brought into the port of either of the said Parties, shall be seized, as far as they can be discovered and shall be restored to the owners or their Factors or Agents duly deputed and authorized in writing by them (proper Evidence being first given in the Court of Admiralty for proving the property,) even in case such effects should have passed into other hands by Sale, if it be proved that the Buyers knew or had good reason to believe, or suspect that they had been piratically taken.” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 260.)
68. Article 21 reads: “It is likewise agreed that the Subjects and Citizens of the Two Nations, shall not do any acts of Hostility or Violence against each other, nor accept Commissions or Instructions so to act from any Foreign Prince or State, Enemies to the other party, nor shall the Enemies of one of the parties be permitted to invite or endeavour to enlist in their military service any of the Subjects or Citizens of the other party; and the Laws against all such Offences and Aggressions shall be punctually executed. And if any Subject or Citizen of the said Parties respectively shall accept any Foreign Commission or Letters of Marque for Arming any Vessel to act as a Privateer against the other party, and be taken by the other party, it is hereby declared to be lawful for the said party to treat and punish the said Subject or Citizen, having such Commission or Letters of Marque as a Pirate” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 260–61).
69. “An Act in addition to the act for the punishment of certain crimes against the United States” (1 Stat. 381–84 [June 5, 1794]). Section 1 of this act reads: “Be it enacted …, That if any citizen of the United States shall, within the territory or jurisdiction of the same, accept and exercise a commission to serve a foreign prince or state in war by land or sea, the person so offending shall be deemed guilty of a high misdemeanor, and shall be fined not more thas two thousand dollars, and shall be imprisoned not exceeding three years” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 381–82).
70. For this provision in the commercial treaties of the United States, see Article 21 (originally 23) of the Treaty of Amity and Commerce with France, February 6, 1778 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 19); Article 19 of the Treaty of Amity and Commerce with the Netherlands, October 8, 1782 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 76–77); Article 23 of the Treaty of Amity and Commerce with Sweden, April 3, 1783 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 142); Article 20 of the Treaty of Amity and Commerce with Prussia, September 10, 1785 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 175–76).
71. Article 22 reads: “It is expressly stipulated that neither of the said Contracting Parties will order or Authorize any Acts of Reprisal against the other on Complaints of Injuries or Damages until the said party shall first have presented to the other a Statement thereof, verified by competent proof and Evidence, and demanded Justice and Satisfaction, and the same shall either have been refused or unreasonably delayed” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 261).
72. Article 23 reads: “The Ships of war of each of the Contracting Parties, shall at all times be hospitably received in the Ports of the other, their Officers and Crews paying due respect to the Laws and Government of the Country. The officers shall be treated with that respect, which is due to the Commissions which they bear. And if any Insult should be offered to them by any of the Inhabitants, all offenders in this respect shall be punished as Disturbers of the Peace and Amity between the Two Countries.
“And His Majesty consents, that in case an American Vessel should by stress of weather, Danger from Enemies, or other misfortune be reduced to the necessity of seeking Shelter in any of His Majesty’s Ports, into which such Vessel could not in ordinary cases claim to be admitted; She shall on manifesting that necessity to the satisfaction of the Government of the place, be hospitably received, and be permitted to refit, and to purchace at the market price, such necessaries as she may stand in need of, conformably to such Orders and regulations as the Government of the place, having respect to the circumstances of each case shall prescribe. She shall not be allowed to break bulk or unload her Cargo, unless the same shall be bonâ fide necessary to her being refitted. Nor shall be permitted to sell any part of her Cargo, unless so much only as may be necessary to defray her expences, and then not without the express permission of the Government of the place. Nor shall she be obliged to pay any Duties whatever, except only on such Articles, as she may be permitted to sell for the purpose aforesaid.” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 261–62.)
73. This is a reference to Article 19 (originally 21) of the Treaty of Amity and Commerce of February 6, 1778, between the United States and France (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 17–18).
74. Article 24 reads: “It shall not be lawful for any Foreign Privateers (not being Subjects or Citizens of either of the said Parties) who have Commissions from any other Prince or State in Enmity with either Nation, to arm their Ships in the Ports of either of the said Parties, nor to sell what they have taken, nor in any other manner to exchange the same, nor shall they be allowed to purchase more provisions than shall be necessary for their going to the nearest Port of that Prince or State from whom they obtained their Commissions” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 262).
Article 25 reads: “It shall be lawful for the Ships of war and Privateers belonging to the said Parties respectively to carry whithersoever they please the Ships and Goods taken from their Enemies without being obliged to pay any Fee to the Officers of the Admiralty, or to any Judges whatever; nor shall the said Prizes when they arrive at, and enter the Ports of the said Parties be detained or seized, neither shall the Searchers or other Officers of those Places visit such Prizes (except for the purpose of preventing the Carrying of any part of the Cargo thereof on Shore in any manner contrary to the established Laws of Revenue, Navigation or Commerce) nor shall such Officers take Cognizance of the Validity of such Prizes; but they shall be at liberty to hoist Sail, and depart as speedily as may be, and carry their said Prizes to the place mentioned in their Commissions or Patents, which the Commanders of the said Ships of war or Privateers shall be obliged to shew. No Shelter or Refuge shall be given in their Ports to such as have made a Prize upon the Subjects or Citizens of either of the said Parties; but if forced by stress of weather or the Dangers of the Sea, to enter therein, particular care shall be taken to hasten their departure, and to cause them to retire as soon as possible. Nothing in this Treaty contained shall however be construed or operate contrary to former and existing Public Treaties with other Sovereigns or States. But the Two parties agree, that while they continue in amity neither of them will in future make any Treaty that shall be inconsistent with this or the preceding article.
“Neither of the said parties shall permit the Ships or Goods belonging to the Subjects or Citizens of the other to be taken within Cannon Shot of the Coast, nor in any of the Bays, Ports or Rivers of their Territories by Ships of war, or others having Commission from any Prince, Republic or State whatever. But in case it should so happen, the party whose Territorial Rights shall thus have been violated, shall use his utmost endeavours to obtain from the offending Party, full and ample satisfaction for the Vessel or Vessels so taken, whether the same be Vessels of war or Merchant Vessels.” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 262–63.)
75. See Articles 17 (originally 19) and 22 (originally 24) of the Treaty of Amity and Commerce with France, February 6, 1778 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 16–17, 19–20); Article 19 of the Treaty of Amity and Commerce with Sweden, April 3, 1783 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 139); and Article 19 of the Treaty of Amity and Commerce with Prussia, September 10, 1785 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 175). Of the six provisions which H lists here, the treaty with France contains the first five; that with Sweden, the fourth only; and that with Prussia, the fourth, with an additional clause that no vessel which had made prizes of French ships should be allowed asylum in United States ports. The Treaty of Navigation and Commerce between France and Great Britain, signed on September 26, 1786, contains the following articles: “XVI. It shall not be lawful for any foreign privateers, not being subjects of either crown, who have commissions from any other prince or state, in enmity with either nation, to arm their ships in the ports of either of the said two kingdoms, to sell what they have taken, or in any other manner whatever to exchange the same; neither shall they be allowed even to purchase victuals, except such as shall be necessary for their going to the nearest port of that prince from whom they have obtained commissions….
“Art. XL. It shall be lawful, as well for the ships of war of their majesties, as for privateers belonging to their subjects, to carry whithersoever they please the ships and goods taken from their enemies, without being obliged to pay any fee to the officers of the admiralty, or to any judges whatever; nor shall the said prizes, when they arrive at and enter the ports of their said majesties, be detained or seized; neither shall the searchers, or other officers of those places, visit or take cognizance of the validity of such prizes; but they shall be at liberty to hoist sail at any time, to depart, and to carry their prizes to the place mentioned in the commissions or patents, which the commanders of such ships of war shall be obliged to shew: on the contrary, no shelter or refuge shall be given in their ports to such as have made prize upon the subjects of either of their majesties; but if forced by stress of weather, or the dangers of the sea, to enter therein, particular care shall be taken to hasten their departure, and to cause them to retire from thence as soon as possible, as far as it is not repugnant to former treaties made in this respect with other sovereigns or states.
“Art. XLI. Neither of their said majesties shall permit the ships or goods belonging to the subjects of the other to be taken within cannon-shot of the coast, or in the ports or rivers of their dominions, by ships of war, or others having commission from any prince, republic, or city, whatsoever: but in case it should so happen, both parties shall employ their united force to obtain reparation of the damage thereby occasioned.” (The Annual Register, or a View of History, Politics and Literature for the Year 1786 [London, 1788], 273, 280–81.)
77. Article 26 reads: “If at any Time a Rupture should take place (which God forbid) between His Majesty and the United States, the Merchants and others of each of the Two Nations, residing in the Dominions of the other, shall have the privilege of remaining and continuing their Trade so long as they behave peaceably and commit no offence against the Laws, and in case their Conduct should render them suspected, and the respective Governments should think proper to order them to remove, the term of Twelve Months from the publication of the order shall be allowed them for that purpose to remove with their Families, Effects and Property, but this Favor shall not be extended to those who shall act contrary to the established Laws, and for greater certainty it is declared that such Rupture shall not be deemed to exist while negotiations for accommodating Differences shall be depending nor until the respective Ambassadors or Ministers, if such there shall be, shall be recalled, or sent home on account of such differences, and not on account of personal miscondu[c]t according to the nature and degrees of which both parties retain their Rights, either to request the recall or immediately to send home the Ambassador or Minister of the other; and that without prejudice to their mutual Friendship and good understanding” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 263).
Article 27 reads: “It is further agreed that His Majesty and the United States on mutual Requisitions by them respectively or by their respective Ministers or Officers authorized to make the same will deliver up to Justice, all Persons who being charged with Murder or Forgery committed within the Jurisdiction of either, shall seek an Asylum within any of the Countries of the other, Provided that this shall only be done on such Evidence of Criminality as according to the Laws of the Place, where the Fugitive or Person so charged shall be found, would justify his apprehension and commitment for Tryal, if the offence had there been committed. The Expence of such apprehension and Delivery shall be borne and defrayed by those who make the Requisition and receive the Fugitive” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 263).
78. Article 28 reads: “It is agreed that the first Ten Articles of this Treaty shall be permanent and that the subsequent Articles except the Twelfth shall be limited in their duration to Twelve years to be computed from the Day on which the Ratifications of this Treaty shall be exchanged, but subject to this Condition that whereas the said Twelfth Article will expire by the Limitation therein contained at the End of two years from the signing of the Preliminary or other Articles of Peace, which shall terminate the present War, in which His Majesty is engaged; It is agreed that proper Measures shall by Concert be taken for bringing the subject of that article into amicable Treaty and Discussion so early before the Expiration of the said Term, as that new Arrangements on that head may by that Time be perfected and ready to take place. But if it should unfortunately happen that His Majesty and the United States should not be able to agree on such new Arrangements, in that Case, all the Articles of this Treaty except the first Ten shall then cease and expire together.
“Lastly. This Treaty when the same shall have been ratified by His Majesty, and by The President of the United States, by and with the advice and Consent of Their Senate, and the respective Ratifications mutually exchanged, shall be binding and obligatory on His Majesty and on the said States, and shall be by Them respectively executed and observed with punctuality, and the most sincere regard to good Faith. And Whereas it will be expedient in order the better to facilitate Intercourse and obviate Difficulties that other Articles be proposed and added to this Treaty, which Articles from want of time and other circumstances cannot now be perfected; It is agreed that the said Parties will from Time to Time readily treat of and concerning such Articles, and will sincerely endeavour so to form them, as that they may conduce to mutual convenience, and tend to promote mutual Satisfaction and Friendship; and that the said Articles after having been duly ratified, shall be added to, and make a part of this Treaty.” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 264.)
79. H was mistaken, for he should have referred to the second paragraph of Article 28, which was the last article of the Jay Treaty.
80. H is referring to the British Navigation Act of 1660, which forbade the importation of goods into or exportation of goods out of Great Britain or her colonies and possessions, except in British-built or British-owned ships, and forbade aliens from serving as merchants and factors in Asia, Africa, and America (12 Car. II, C. 18). The 1660 act was superseded by the Navigation Act of 1696 (7 and 8 Gul. III, C. 22).
81. This is a reference to Article 3 of the Jay Treaty. For the text of this article, see note 8.