struction of the treaty was drawn in question and that the decision of the State court was adverse to the right set up under the treaty, though the question whether the treaty protected the claim depended upon the true construction of the State laws. Smith v. Maryland (1810), 6 Cranch, 286. The term "prosecutions," in Article VI. of the treaty of 1783, imports a suit against another in a criminal cause, such prosecutions being conducted in the name of the public, the ground of them being distinctly known as soon as they are instituted and being always under the control of the government. Bradford, At. Gen., 1794, 1 Op. 50. 2. JAY TREATY, 1794. (1) HISTORICAL SKETCH. By Article VII. of the treaty of peace of 1783 it was agreed that His Brittannic Majesty should," with all convenient speed, and without causing any destruction, or carrying away any negroes or other property of the American inhabitants," withdraw his armies, garrisons, and fleets from the United States. When, on Nov. 25, 1783, the British forces were withdrawn from New York, complaint was made that they took with them, or sent in advance, 3,000 negroes; and in 1794 the British still occupied Detroit, Mackinaw, Fort Erie (Buffalo), Niagara, Oswego, Oswegatchie, Point au Fer, and Dutchmans Point. Washington, soon after he became President, made an effort to restore good relations between the two countries. After the conclusion of peace, John Adams was sent as minister of the United States to London, but no British minister was sent in return to the United States, and in time diplomatic relations fell into suspense. In these circumstances Washington authorized Gouverneur Morris, who was expected soon to be in London, to make unofficial inquiries as to the sentiments of the British ministry concerning the execution of the treaty of peace. Morris arrived in London March 28, 1790, and lost no time in calling on the Duke of Leeds, who was then minister for foreign affairs. Being cordially received, he assured the duke that all obstacles to the recovery of British debts had been removed by the adoption of the Constitution and the organization of the Federal courts. The duke, on the other hand, took the ground that the stipulations of the treaty should be performed in the order in which they stood, and finally declared that Great Britain would retard the evacuation of the posts till redress was granted to British subjects. In this declaration Pitt concurred. Morris's negotiations continued through the summer of 1790, without other result than the promise of the British government to send a minister to the United States. This promise was fulfilled, but the negotiations which took place from November, 1791, to May, 1792, between Mr. Jefferson, who was then Secretary of State, and Mr. Hammond, the British minister, on the subject of the inexecution of the treaty, produced nothing more tangible than an exchange of certain voluminous diplomatic notes. April 16, 1794, Washington sent to the Senate the nomination of John Jay, then Chief Justice of the United States, as envoy extraor dinary to Great Britain. Washington, in explanation of his action, referred to the "serious aspect" of affairs and expressed the opinion that “peace ought to be pursued with unremitted zeal before the last resort, which has so often been the scourge of nations, is contemplated." The relations between the two countries had by this time been greatly embittered by the attacks made on neutral trade under the orders in council issued by the British government in the long contest with France that had lately begun. Jay's nomination was confirmed by a vote of 18 to 8. His instructions, which were signed by Edmund Randolph, were dated May 6, 1794. He sailed from New York on the 12th of the same month. Jay had scarcely left the United States when the British governor of Canada, Lord Dorchester, made a speech, unfriendly in its character to the United States, to Indians then aroused against the United States, and three companies of a British regiment went to the foot of the rapids of the Miami, in the southern part of what is now the State of Ohio, to build a fort there. When complaints were made of these hostile acts the British minister at Washington justified both as defensible preparations for an actual state of war about to begin between the two nations, and retorted by complaining of the fitting out of French privateers in American ports, and of the "uniformly unfriendly treatment which His Majesty's ships of war ex perienced in the American ports." President Washington, in transmitting the correspondence to both Houses of Congress, said: "This new state of things suggests the propriety of placing the United States in a posture of effectual preparation for an event which, notwithstanding the endeavors making to avert it, may, by circumstances beyond our control, be forced upon us.” Jay made his first formal representations to Earl Grenville July 30, 1794, and on the 6th of August submitted a series of articles. Various projects were exchanged, and on the 19th of November a treaty was signed. For the correspondence between Jefferson and Hammond, concerning the inexecution of the treaty of 1783, see Am. State Papers, For. Rel. I. 188, 189, 190-193, 193–200, 201-237, 238. See, also, the following documents: Jay's instructions and negotiations, id. 472, 476, 486, 705. "It is his "That Mr. Jay's treaty was a bad one, few persons even then ventured For Hamilton's vindication of the treaty, see Essays of Camillus, 4 and 5 Concerning some of the disputed constructions of the treaty, see 1 John Pickering's instructions to Pinckney of Jan. 16, 1797, concerning the For the series of British orders in council and French decrees, under which neutral commerce was subjected to depredations, see Moore, Int. Arbitrations, I. 299–307. After Washington received the treaty he for some time deliberated upon the question whether to submit it to the Senate. With France, in the struggle in which she was then engaged with the European powers, popular sympathy was general and strong, while the feeling against Great Britain was correspondingly high, and in important particulars the treaty fell short of obtaining what the United States. had demanded. Nor could it become effective upon its approval by the President and the Senate. Legislation, in the enactment of which the House must participate, was requisite for the execution of some of its provisions. Washington, however, determined, if possible, to carry it into effect. While it was pending before the Senate its provisions became public through the action of a member of that body. It was received with a storm of denunciation. Hamilton when attempting to speak in public in its defense was mobbed. But the excitement gradually abated. The influence of the mercantile classes was actively exerted in favor of the Administration, and the treaty was duly ratified. When it was sent to the House a motion was adopted, by a vote of 61 ayes to 38 noes, calling for the papers relating to the negotiation, including Jay's instructions. The President declined to comply with this request on the ground that the treaty, having been concluded and ratified in the manner prescribed in the Constitution, had become the supreme law of the 1 land; that the assent of the House was not necessary to its validity; that the treaty in itself exhibited all the objects requiring legislative provision, and that upon these the papers called for threw no light. In answer to this message the House, after a short debate, resolved by a large majority that in cases where legislation was required to carry a treaty into effect it was the right and duty of the House to act in such manner as might in its judgment "be most conducive to the public good," and that it was "not necessary to the propriety of any application" from the House to the Executive, for information desired by the former, and which might relate to the discharge of its constitutional functions, that the object for which the information might be wanted or applied for should be stated in the application. About a fortnight later a resolution was introduced into the House to the effect that legislation ought to be adopted to carry the treaty into effect. When this resolution was first brought to a vote in Committee of the Whole there was an equal division. Subsequently, the question was carried in favor of the treaty by a vote of 51 to 48. Madison, who declared that the first impression as to the treaty was "universally and simultaneously against it," and who sided with those who sought to assert the prerogatives of the House, said, after the vote in favor of carrying the treaty into effect was taken: "The progress of this business throughout has been to me the most worrying and vexatious I ever encountered." Davis's Notes, Treaty Vol. (1776-1887), 1229, citing Annals, 4 Cong. 1 sess. 759, 761–762, 771–772, 940; 2 Madison's Works, 64, 69, 73, 75, 88, 89, 94, 99. "The objects in view in opening a negotiation with Mr. Jay, as special envoy, were as follows: 66 "(1) The vacating by the British authorities of the border posts on United States territory, including Fort Erie, Detroit, Oswego, and Michilimackinac, which they still held in defiance of the treaty of peace, and which they used, not merely to retard the progress of United States settlement in those quarters, but to keep the adjacent Indian tribes in subjection to Great Britain and in hostility to the United States. "(2) The recognition of the maxim Free ships make free goods.' "(3) The establishing of a restricted system of contraband. 66 (4) The placing of Great Britain on a position of equality with France so far as concerns belligerent rights, and so far as it could be done consistently with the treaty with France. "(5) The surrender of impressment. "(6) The opening of the West India trade. "(7) The surrender of the rule that no trade could be allowed to a neutral in war which he could not carry on in peace. "(1) The first of these proposed concessions was the only one which was obtained and it was granted in a way peculiarly ungracious. The treaty of peace required an immediate surrender of these posts. Great Britain refused to surrender them, and made them the basis of unjustifiable encroachments on the United States. Jay's treaty not only condoned this outrage, but permitted the posts to be held by Great Britain until June, 1796. 66 (2) So far from free ships and free goods' being recognized, it was agreed, in gross contravention of the treaty of alliance with France, that French goods in United States merchant vessels should be subject to seizure by Great Britain. "(3) So far from the list of contraband being restricted, it was expanded so as to include ' timber for shipbuilding, 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 this was followed by the statement that provisions could be confiscated, subject to a right on the part of the owners to claim payment at a rate to be fixed at the British port to which the vessel was taken, a right which, of course, turned out to be illusory. 66 "(4) So far from Great Britain being raised by the treaty to equal privileges with France, she was, by virtue of her maritime supremacy, given advantages over France which virtually destroyed those to which France was entitled by treaty. Thus, while France, by treaty, was precluded from seizing British goods when in United States vessels, Great Britain, on the other hand, was permitted to seize French goods, or goods going to France, on United States vessels, and even to seize United States provisions going on United States vessels to France or French. colonies, as contraband. The stipulation for compensation for such seizures, even if it had been carried out, which it was not, would have been no relief to France, since the result was to advance the British scheme of starving the French population, provisions sent from the United States to France and to French colonies being in this way carried to England. Article XXI., also, precluding citizens of the United States from serving under France, and providing that if a citizen of the United States should take a commission to act as a French privateer he could be treated by Great Britain as a pirate, was as much in conflict with the law of nations as with the treaty of alliance with France. And this, as well as the prior articles, was in conflict with the guarantee given by the United States, for a consideration unquestionably sufficient, of the West India possessions of France. "(5) Impressment was not surrendered. "(6) Although Jay's instructions required him to sign no treaty which did not in some measure open the West India trade, the treaty |