he signed opened that trade only to United States vessels of 70 tons, whose cargoes had been received in ports of the United States. This concession, however, was more than neutralized by the admission of British vessels of any tonnage to the United States ports for West India commerce; and then it was made useless by the condition that United States vessels should not transport to any foreign country except Great Britain, sugar, cotton, coffee, or molasses. The only excuse offered for this last extraordinary condition was that Mr. Jay was not aware (though Lord Grenville, who negotiated the treaty with him, was) that cotton was, or could be, produced in the United States. "(7) The rule that there should be no trade by the United States in war with ports with which she could not trade in peace was not surrendered. merce. "It is true that the treaty provided for a commission to determine the idemnity due for prior British spoliations of United States comBut for this a price was paid vastly exceeding the value of any spoliation indemnity that could possibly have been received. Aside from the enormous concessions above stated we bound ourselves to assume in a mass British debts, many of which were incapable of proof. It is true that United States vessels were allowed under the limitation specified above, to trade with the West Indies, but they were shut out from the East India coasting trade, and United States merchants were not permitted to make East Indian settlements. The United States, in return for so paltry a favor, opened all the ports she controlled, and surrendered her own commercial advantages in the existing war with scarce a qualification.' (1 Schouler's Hist. U. S., 292.) "Objectionable, however, as was the treaty, its ratification, if the alternative was war with England, may have been the more prudent course. And it must be remembered President Washington may have had fuller information as to the preparation of the country for war than is possessed by us, and more accurate knowledge, also, of the intentions of the British Government. But the perils of rejecting the treaty do not make its terms less overbearing and unfair." Dr. Francis Wharton, Note, Wharton's Int. Law Digest, II. 161. As to the foregoing criticisms upon the treaty, the following observations may be made: 1. The evacuation of the border posts is regulated by Art. II., which should be read in the full text. 2. The failure to require the recognition of the rule of free ships free goods, while it operated to the disadvantage of France, and was in that sense out of harmony with our intimate and exceptional relations with that country, was not a violation of any direct treaty engagement. 3-4. The treaty, instead of stating that provisions "could be confiscated," expressly declared (Art. 18) "the same shall not be confiscated;" 66 and the promise of compensation, instead of proving to be illusory, yielded upwards of $11,000,000. (Trumbull's Autobiography, 239; Moore, Int. Arbitrations, I. 341–344.) 5. Great Britain continued for fifteen years after the Jay treaty, under successive administrations in the United States, to exercise without forcible resistance the claim of impressment; nor did she renounce the claim in the treaty of Ghent. It is true that the suspension of the war in Europe seemed to deprive the question of its pressing practical importance. 6. Art. XII., relating to the West India trade, certainly was very objectionable, and was suspended by an additional article adopted by the Senate. 7. It was not till 1805 that the "rule of the war of 1756," which seems here to be referred to, was so applied as to prevent the American carrying trade from practically nullifying it by the profitable system of "indirect voyages." (See Adams's History of the United States II. 324 et seq.; III. 43 et seq.) It may be added that by Art. VII. of the treaty, and the proceedings of the commission thereunder, the foundation was laid of the principles on which the United States recovered the award at Geneva in 1872. 6 Jay's treaty contained several new features, some of which have since been adopted in other treaties." It " recognized the right of the United States, which had been inserted in the treaties concluded under the old form of government, to authorize aliens to hold and dispose of real estate in the several States. It aimed to establish, as far as the British monopoly of that day would permit, reciprocity in trade on the American continent; and it declared that by reciprocity it was intended to render in a great degree the local advantages of each party common to both, and thereby to promote a disposition favorable to friendship and good neighborhood.' It made reciprocal provisions for the equalization of import and export duties. It provided a mode for settling by arbitration differences which had arisen between the two powers, and it also declared that it was unjust and impolitic 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 it, therefore, provided that there should be no confiscation or sequestration of debts, in event of war between the parties. By it the parties agreed that an innocent neutral vessel, approaching a blockaded port, without knowledge of the blockade, should be warned and turned away without detention and without confiscation of the vessel, or of the cargo, unless contraband. It required each party to bring to the notice of the other any causes of complaint it might have before proceeding to the extremities of reprisals or of war; and it made provision, to a limited extent, for the extradition of persons charged with the commission of crimes." H. Doc. 551-vol 545 Davis's Notes, Treaty Vol. (1776–1887), 1222-1223. See, also, id. 1321. were made by Congress on the 6th of May, 1796 (1 Stat., 459); and by Parliament on the 4th of July, 1797 (2 Am. State Papers, For. Rel. 103)." (Davis's Notes, id. 1321–1322.) Note the following: Commission under Art. V. of the treaty, to determine what was the true St. Croix River. (Moore, Int. Arbitrations,, I. 1–43). Commission under Art. VI., to decide upon claims growing out of the failure to execute the provisions of Art. IV. of the treaty of peace. (Id. 271– 298). - Commission under Art. VII., to decide upon claims growing out of the violation of neutral rights and the failure to perform neutral duties. (Id. 299-349.) (2) PARTICULAR STIPULATIONS. § 827. The provision in the 3d article of the Jay treaty, relating to the duties on goods and merchandise, does not extend to tonnage duties. nor does the treaty extend any dispensation to the subjects of Great Britain from the laws of the United States, which regulate the trade and intercourse of our own citizens with the Indian tribes. Breckinridge, At. Gen., 1806, 1 Op. 155. To insure the speedy and due execution of the 6th article of the treaty of 1794, public officers should, when requested, furnish authenticated copies of documents in their custody, and should assist in bringing forward testimony according to the duties of their several stations; and individuals should not refuse to give testimony. Lee, At. Gen., 1798, 1 Op. 82. As to the execution of Art. VI., see 1 Moore Int. Arbitrations, 271. Where an alien enemy took and held lands in Virginia by devise in fee, it was decided that his title was confirmed to him by the treaty between the United States and Great Britain of 1794, Article IX., his possession and seizin having continued up to and after the treaty, though an action to dispossess him in behalf of the State was begun before that time. Fairfax's Deviseer. Hunter's Lessee (1813), 7 Cranch, 603. Followed in Jackson v. Clarke (1818), 3 Wheat. 1; Craig v. Radford, (1818), id. 594, 599. See, also, Blight v. Rochester, 7 Wheat. 535; Society for the Propagation of the Gospel v. Wheeler, 2 Gall. 105. Article IX. of the Jay treaty did not apply where the ancestor under whom the heirs claimed had ceased to hold the title to the land. when the treaty was made. Harden v. Fisher (1816), 1 Wheat. 300, reversing 1 Paine, 55. The term "heirs," in Article IX., was not meant to include persons other than such as were British subjects or American citizens at the time of the descent cast. Orr v. Hodgson, 4 Wheat. 453. The treaties of 1783 and 1794 only protected titles in existence at the time the treaties were proclaimed, and did not operate on titles subsequently acquired. But in the case of titles existing at the proclamation of the treaties actual possession was not necessary. Blight v. Rochester, 7 Wheat. 535. See Shanks v. Dupont, 3 Pet. 242. 3. MONROE-PINKNEY AND COGNATE NEGOTIATIONS. § 828. "Many of the informal confidential documents connected with the negotiations in London in 1806 are among the Monroe Papers deposited in the Department of State. These papers show that Mr. Fox, who took the head of the department of foreign affairs on the accession, after Mr. Pitt's death, of the Fox-Grenville ministry to power, showed a conciliatory disposition towards, and a great desire to effect a permanent peace with, the United States. He stated at the outset that he was embarrassed by the recent adoption by Congress of the importation act. Mr. Monroe replied that this bill had passed while Mr. Pitt was in power, and when measures antagonistic to the United States were passed with increasing rigor, but that he had no doubt that, if a more liberal course was adopted in England, Congress would recede from its position of retaliation. Before, however, negotiations had materially advanced, Mr. Fox's illness increased so far as to make his withdrawal from active business essential; and with this withdrawal departed the hopes of Mr. Monroe and of Mr. Pinkney of that bold conciliatory action by the ministry which required the aid of Mr. Fox's genius and generosity to secure its adoption. Upon Mr. Fox's illness, the negotiation on the British side was placed in the hands of Lord Auckland, whose prior associations involved him in Mr. Pitt's policy, and Lord Howick, afterwards Earl Grey, who seems to have left the lead in the correspondence to Lord Auckland. The position taken in their conferences by the American envoys was that impressment, being the exercise of a merely municipal power, could not be enforced extraterritorially. Lord Auckland, on the other hand, falling back on the doctrine of indissoluble allegiance, urged that the King had the right at any time and in any place to call on the services of his subjects to aid him in war; and that neutral merchant ships were not to be regarded as neutral territory to such an extent as to preclude their visitation and search by British officers in quest of British subjects. Backed in this position by the Crown law officers, the British commissioners declared that they could not assent to a solemn surrender of this right, but that they would be willing to discuss any compromise by which the matter could be adjusted satisfactorily to both nations. Mr. Monroe suggested that the Government of the United States, as an equivalent, should undertake to return to British ships all sailors who had deserted from such ships. The counter project of the British commissioners was that statutes should be adopted in the United States making it penal for United States officers to give certificates of citizenship to British subjects, and in Great Britain making it penal for British officers to impress citizens of the United States. The objection to this by the American envoys, an objection they held to be insuperable, was that it prejudiced more or less seriously the right of expatriation. The British commissioners then said that while not prepared explicitly to surrender the right of impressment, reserving the question for future discussion, yet that there should be an understanding between the Governments that this prerogative should only be exercised on the most extraordinary contingencies; that instructions should be given to British commanders to act with the extremest caution even when such emergencies should occur; and that prompt redress should be given if any abuse of the prerogative should be shown. Mr. Monroe and Mr. Pinkney being, by this suggestion, left in a position of either disobeying their instructions or of giving up all hopes of a treaty. determined to accept the treaty with this modification. though with a hesitancy and distrust which is abundantly evidenced by the private correspondence among Mr. Monroe's papers. The final reason on their part was that if they erred in thus accepting the treaty, the error could be readily corrected at Washington; if they erred in rejecting the treaty and left London, the error was irremediable. They stated, therefore, to the British commissioners that if they accepted the proposed compromise it was on their own responsibility. the question being reserved for revision at Washington. The British commissioners on their part conceded to American vessels the right, denied to them by recent rulings in the admiralty court, of carrying European goods, not contraband of war, to any belligerent |