CHAPTER II.

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.

History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 1 With Notices of Its Principle Framers · 第 2 / 16 章