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. 271298). - 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 Devisee v. 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 . 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 colony not blockaded by British ships, provided such goods were American property, and had previously been landed in the United States, paying a duty of at least one per cent above what was refunded on reexportation. The produce of such colonies also, by the same proposal, might, if not contraband of war, be brought into the United States, and, if it had paid a duty of two per cent above drawback, be exported to European belligerent nonblockaded ports. "When the treaty arrived at Washington Mr. Jefferson was for a time in doubt as to the position to take. He had been vehemently attacked for his peace tendencies." His associations, either personal or political, had not been with the shipping interests, and for this very reason he felt himself peculiarly distrustful of any measures which might sanction a claim so odious to those interests as was that of impressment. Before he received information that the American envoys had agreed to the treaty, while they were supposed at Washington to be still hesitating as to its acceptance, Mr. Madison wrote to them, both officially and confidentially, not to hazard the concession. The concession was made, and Mr. Madison's private correspondence shows how reluctant both he and Mr. Jefferson were to overrule it. Mr. Jefferson, in his subsequent letters to Mr. Monroe, speaks of his final nonacceptance of the treaty as an act peculiarly painful to himself. No one can study Mr. Monroe's unpublished writings without seeing that the scar remained with him through his whole life, and that the remembrance of his action in 1807 in agreeing to what he believed to be the dropping of impressment by ignoring it, was vivid in his memory when he submitted to the same method of disposing of the question by the commissioners at Ghent in 1814. But there in this distinction: In 1807 impressment was impliedly recognized in the British proposals by the very restrictions placed on it. In 1814 it was dropped out of sight. "The apparent acquiescence in impressment was the controlling reason-aside from the fact that the treaty was in conflict with instructions-in Mr. Jefferson's mind for its rejection. It was said at the time that the treaty was killed by Mr. Madison from his jealousy of Mr. Monroe. The correspondence, unpublished as well as published, of Mr. Jefferson, Mr. Madison, and Mr. Monroe gives no trace of such jealousy. Mr. Madison's letters show throughout the greatest anxiety that Mr. Monroe's mission should succeed. Mr. a“ I have been for a long time,' said Mr. Quincy, then the leading representative of New England federalism, in a speech on January 19, 1809, a close observer of what has been done and said by the majority of this House; and, for one, I am satisfied that no insult, however gross, offered to us by either France or Great Britain, could force this majority into the declaration of war. To use a strong but common expression, it could not be kicked into such a declaration by either nation.' (Quincy's Speeches, 143.) Jefferson, in withholding the treaty from the Senate, followed, as the papers show, his own counsels, and it is impossible, on reading the correspondence, not to see that, so far from desiring to injure Mr. Monroe being one of his motives, his peculiar affection for Mr. Monroe was one of the chief grounds for his hesitancy. "Mr. Jefferson, in his annual message in October, 1807, gave the following reasons for nonacceptance of the treaty: Some of the articles might have been admitted on a principle of compromise, but others were too highly disadvantageous; and no sufficient provision was made against the principal source of the contentions and collisions which were constantly endangering the peace of the two nations."" Note by Dr. Francis Wharton, Wharton's Int. Law Digest, § 150b, II. 163. The question is discussed in 2 Lyman's Dip. of the United States, chap. i. That the treaty was rejected, not because it failed to provide that free ships should make free goods, but because it contained provisions that seemed to sanction the claim of impressment, see President Madison to Mr. Joy (unofficial), Jan. 17, 1810, 2 Madison's Works, 467, and President Jefferson to Mr. Bowdoin, April 2, 1807, 5 Jefferson's Works, 63. Among the MS. Monroe Papers there is a letter from Mr. Bowdoin to Mr. Monroe of Feb. 27, 1807, expressing a general but qualified approval of the treaty. As to the negotiations of Messrs. Erskine and Jackson, see supra, § 640; 3 Am. State Pap. For. Rel. 300 et seq. For correspondence between Mr. Foster, British minister at Washington, In a private letter from Mr. Jefferson to Mr. Monroe, May 29, 1807, |