1784-1787.
INFRACTIONS OF THE TREATY OF PEACE.
The Treaty of Peace, ratified on the 14th of January, 1784, contained
provisions of great practical and immediate importance. One of its chief
objects, on the part of the United States, was, of course, to effect the
immediate withdrawal of the British troops, and of every sign of British
authority, from the country whose independence it acknowledged. A
stipulation was accordingly introduced, by which the King bound himself,
with all convenient speed, and without causing any destruction, or
carrying away any negroes or other property of the American inhabitants,
to withdraw all his armies, garrisons, and fleets from the United
States, and from every post, place, and harbor within the same. Although
the ratification of the Treaty was followed by the departure of the
British forces from the Atlantic coast, many important posts in the
Western country, within the incontestable limits of the United States,
with a considerable territory around each of them, were still
retained[237].
On the part of England, it was of great consequence to secure to British
subjects the property, and rights of property, of the enjoyment of which
the state of hostilities had deprived them. A war between colonies and
the parent state, which had sundered the closest intimacies of social
and commercial intercourse, involved of necessity vast private
interests. There were two large classes of English creditors, whose
interests required protection; the British merchants to whom debts had
been contracted before the Revolution, and the Tories, who had been
obliged to depart from the United States, leaving debts due to them, and
landed property, which had been seized. Clear and explicit stipulations
were inserted in the Treaty, in order to protect these interests. It was
provided that creditors on either side should meet with no lawful
impediments to the recovery of the full value in sterling money of all
_bona fide_ debts contracted before the date of the Treaty.[238] It was
also agreed, that Congress should earnestly recommend to the
legislatures of the respective States to provide for the restitution of
all estates, rights, and properties, which had been confiscated,
belonging to real British subjects, and to persons resident in districts
in the possession of his Majesty's arms, and who had not borne arms
against the United States; that persons of any other description should
have free liberty to go into any of the States, and remain for the
period of twelve months unmolested in their endeavors to obtain the
restitution of their property and rights which had been confiscated;
that Congress should recommend to the States a reconsideration and
revision of all their confiscation laws, and a restoration of the rights
and property of the last-mentioned persons, on their refunding the _bona
fide_ price which any purchaser might have given for them since the
confiscation. It was also agreed, that all persons having any interest
in confiscated lands, either by debts, marriage settlements, or
otherwise, should meet with no lawful impediment in the prosecution of
their just rights.[239]
It was further provided, that there should be no future confiscations
made, nor any prosecutions commenced against any person on account of
the part he might have taken in the war, and that no person should, on
that account, suffer any future loss or damage, either in person,
liberty, or property, and that those who might be in confinement on such
charges, at the time of the ratification of the Treaty in America,
should be immediately set at liberty, and the prosecutions be
discontinued.[240]
These provisions related to a great subject, with which, in the existing
political system of this country, it was difficult to deal. The action
of the States, with regard to some of the interests involved in these
stipulations, had been irregular from an early period of the war. The
Revolutionary Congress, on the commencement of hostilities, had suffered
the opportunity of asserting their rightful control over the subject of
alien interests, except as to property found on the high seas, to pass
away; and the consequence was, that the States had, on some points,
usurped an authority which belonged to the Union. A Union, founded in
compact, and vesting the rights of war and peace in Congress, was formed
in 1775; and from that time the Colonies, or, as they afterwards became,
States, were never rightfully capable of passing laws to sequester or
confiscate the debts or property of a national enemy[241]. After the
great acts of national sovereignty which took place in 1775-6, a British
subject could not, with any propriety, be considered as the enemy of
Massachusetts, or of Virginia; he was the enemy of the United States,
and by that authority alone, as the belligerent, was his property, in
strictness, liable to be seized, or the debts due to him sequestered.
But neither the Revolutionary Congress, nor that of the Confederation,
appear to have ever exercised the power of confiscating the debts or
property of British subjects, within the States, or to have recommended
such confiscation to the States themselves[242]. On the other hand, they
did not interfere when the States saw fit to do it.
With regard to those inhabitants of the States who, adhering to the
British crown, had abandoned the country, and left property behind them,
it cannot so clearly be affirmed that the States should not have dealt
with their persons or property. Congress, as we have seen, at an early
period of the war, committed the whole subject of restraining the
persons of the Tories to the Colonies or States; and as Congress never
assumed or exercised any jurisdiction over their property, it was of
course left to be dealt with by the legislatures of the States, to whom
Congress had declared that their several inhabitants owed
allegiance[243]. But as these persons, by adhering to the crown, might
claim of the crown the rights and protection of British subjects, the
propriety of confiscating or withholding their property would remain for
solution, at the negotiation of the Treaty of Peace, as a question of
general justice and equity, rather than of public law.
The interests of both of these classes of persons were too important
to be overlooked. Three millions sterling were due from the
inhabitants of the Colonies to merchants in Great Britain, at the
commencement of the war. At the return of peace, the laws of five of
the States were found either to prohibit the recovery of the
principal, or to suspend its collection, or to prohibit the recovery
of interest, or to make land a good payment in place of money.[244]
The purpose of the Treaty was to declare, that all _bona fide_ debts,
contracted before the date of the Treaty, and due to citizens of
either country, remained unextinguished by the war; and consequently,
that interest, when agreed to be paid, or payable by the custom, or
demandable as damages for delay of payment, was justly due. Over this
whole subject of foreign debts, the national sovereignty, of right,
had exclusive control; for confiscation of the property of a national
enemy belongs exclusively to the power exercising the rights of war;
and therefore whatever State laws might have been passed during the
war, exercising rights which belonged to the national sovereign, they
could have no validity when that sovereign came to resume its control
over the subject, and to stipulate that the right of confiscation, if
it ever existed, should not be exercised. The State laws, however,
existed, and remained in conflict with the Treaty, for several years,
producing consequences to which we shall presently advert.
The fifth article of the Treaty was infringed by an act passed by the
State of New York, authorizing actions for rent to be brought by persons
who had been compelled to leave their lands and houses by the enemy,
against those who had occupied them while the enemy were in possession,
and declaring that no military order or command of the enemy should be
pleaded in justification of such occupation.[245]
The sixth article was also violated by an act of the same State, which
made those inhabitants who had adhered to the enemy, if found within the
State, guilty of misprision of treason, and rendered them incapable of
holding office, or of voting at elections.[246]
The powers of the government were entirely inadequate to meet this state
of things. The Confederation gave to the United States in Congress
assembled the sole and exclusive right of determining on peace and war,
and of entering into treaties and alliances. The nature of the
sovereignty thus established made a treaty the law of the land, and
binding upon every member of the Union; but there existed no means of
enforcing the obligation. If the legislatures of the States passed laws
restraining or interfering with the provisions of a treaty, Congress
could only declare that they ought to be, and recommend that they should
be, repealed. The simple and effectual intervention of a national
judiciary, clothed with the power of declaring void any State
legislation that conflicted with the national sovereignty, and of giving
the means of enforcing all rights which that sovereignty had guaranteed
by compact with a foreign power, did not exist. Resort, it is true,
could be had to the State tribunals; and, on one memorable occasion,
such resort was had to them with success. But the legislative power
assailed the independence of the judiciary, and indignantly declared a
decision, made with fairness by a competent tribunal, subversive of law
and good order, because it recognized the paramount authority of a
treaty over a statute of the State.[247]
The effect of such State legislation upon the relations of the two
countries was direct and mischievous. The Treaty of Peace was designed,
and was adapted, to produce a fair and speedy adjustment of those
relations, upon principles of equity and justice. But its obligations
were reciprocal, and it could not execute itself. It was made, on the
one side, by a power capable of performing, but also capable of waiting
for the performance of the obligations which rested upon the other
contracting party. On the other side, it was made by a power possessed
of very imperfect means of performance, yet standing in constant need of
the benefit which a full compliance with its obligations would insure.
After the lapse of three years from the signature of the preliminary
articles, and of more than two years from that of the definitive Treaty,
the military posts in the Western country were still held by British
garrisons, avowedly on account of the infractions of the Treaty on our
part. The Minister of the United States at St. James's was told, in
answer to his complaints, that one party could not be obliged to a
strict observance of the engagements of a treaty, and the other remain
free to deviate from its obligations; and that whenever the United
States should manifest a real determination to fulfil their part of the
Treaty, Great Britain would be ready to carry every article of it into
complete effect.[248] An investigation of the whole subject, therefore,
became necessary, and Congress directed the Secretary of Foreign Affairs
to make inquiry into the precise state of things. His report ascertained
that the fourth and fifth articles of the Treaty had been constantly
violated on our part by legislative acts still in existence and
operation; that on the part of England, the seventh article had been
violated, by her continuing to hold the posts from which she had agreed
to withdraw her garrisons, and by carrying away a considerable body of
negroes, the property of American inhabitants, at the time of the
evacuation of New York.[249]
The serious question recurred,--what was to be done? The United States
had neither committed nor approved of any violation of the Treaty; but
an appeal was made to their justice, relative to the conduct of
particular States, for which they were obliged eventually to answer.
They could only resolve and recommend; and accordingly, after having
declared that the legislatures of the States could not, of right, do any
thing to explain, interpret, or limit the operation of a treaty,
Congress recommended to the States to pass a general law, repealing all
their former acts that might be repugnant to the Treaty, and leaving to
their courts of justice to decide causes that might arise under it,
according to its true intent and meaning, by determining what acts
contravened its provisions.[250] This recommendation manifestly left the
interests of the Union exposed to two hazards; the one, that the
legislatures of the States might not pass the repealing statute, which
would submit the proper questions to their courts, and the other, that
their courts might not decide with firmness and impartiality between the
policy of the State, on the one hand, and the interests of foreigners
and obnoxious Tories, on the other.
But this was all that could be done, and partial success only followed
the effort. Most of the States passed acts, in compliance with the
recommendation of Congress, to repeal their laws which prevented the
recovery of British debts.[251] But the State of Virginia, although it
passed such an act, suspended its operation, until the Governor of the
State should issue a proclamation, giving notice that Great Britain had
delivered up the Western posts, and was taking measures for the further
fulfilment of the Treaty, by delivering up the negroes belonging to the
citizens of that State, which had been carried away, or by making
compensation for their value.[252] The two countries were thus brought
to a stand, in their efforts to adjust the matters in dispute, and the
Western posts remained in the occupation of British garrisons, inflaming
the hostile temper of the Indian tribes, and enhancing the difficulty of
settling the vacant lands in the fertile region of the Great Lakes.[253]
FOOTNOTES:
[237] Secret Journals of Congress, IV. 186, 187.
[238] Article IV.
[239] Article V.
[240] Article VI.
[241] See the Report made to Congress on this subject by Mr. Jay,
Secretary of Foreign Affairs, October, 1786. Secret Journals, IV. 209.
[242] Ibid.
[243] Resolve of June 24, 1776. Journals, II. 216. Ante, p. 52, note.
[244] An act passed by the legislature of Massachusetts, November 9,
1784, suspended judgment for interest on British debts, until Congress
should have put a construction upon the Treaty declaring that it was
due. An act of the State of New York, of July 12, 1782, restrained the
collection of debts due to persons within the enemy's lines.
Pennsylvania, soon after the peace, passed a law restraining the levy of
executions. Virginia, at the time of the peace, had existing laws
inhibiting the recovery of British debts. South Carolina had made land a
good payment, in place of money. (See Mr. Jay's Report.)
[245] Passed March 17, 1783. Secret Journals, IV. 267.
[246] Passed May 12, 1784, after the Treaty had been ratified. Secret
Journals, IV. 269-274.
[247] This happened in New York, in a case under the "Trespass Act,"
where a suit was brought in the Mayor's Court of the City of New York,
"to recover the rents of property held by the defendant under an order
of Sir Henry Clinton." Hamilton, in the defence of this case, contended,
with great power, that the act was a violation of the Treaty, and the
court sustained his position. But the legislature passed resolves,
declaring the decision to be subversive of law and good order, and
recommending the appointing power "to appoint such persons Mayor and
Recorder of New York as will govern themselves by the known law of the
land." Life of Hamilton, II. 244, 245.
[248] Mr. John Adams was sent as the first Minister of the United States
to the Court of St. James's in 1785. He received this reply to a
memorial which he addressed to the British government, on the subject of
the Western posts, in February, 1786. Secret Journals, IV. 187.
[249] Secret Journals, IV. 209.
[250] March 21, 1787.
[251] New Hampshire, Massachusetts, Rhode Island, Connecticut, Delaware,
Maryland, Virginia, and North Carolina passed such acts.
[252] Pitkin's History of the United States, II. 198.
[253] Marshall's Life of Washington, V. 67, 68.