BREACHES OF ANGLOAMERICAN TREATIES

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FIRST TREATY OF PEACE (1783 AND 1784) TREATY OF AMITY, COMMERCE AND NAVIGATION (JAY TREATY, 1795)

Provisional Articles and Definitive Treaty of Peace, 1783 and 1784

The termination of our Revolutionary War was effected by two successive treaties:

1. Provisional articles concluded in 1782 and proclaimed in 1783.

2. A definitive Treaty of Peace, signed in 1783 and ratified in 1784.

In each of these treaties was an Article VII containing the stipulation:

His Britannic Majesty shall with all convenient speed, withdraw all his armies, garrisons, and fleets from the said United States, and from every post, place, and harbor within the same.

On the 25th of December, 1784, Benjamin Franklin wrote from Passy to the President of Congress:

With respect to the British court, we should, I think, be constantly upon our guard, and impress strongly upon our minds that, though it has made peace with us, it is not in truth reconciled either to us or to its loss of us, but still flatters itself with hopes that some change in the affairs of Europe, or some disunion among ourselves, may afford them an opportunity of recovering their dominion, punishing those who have most offended, and securing our future dependence. ... In these circumstances we cannot be too careful to preserve the friendships we have acquired abroad, and the union we have established at home, to secure our credit by a punctual discharge of our obligations of every kind, and our reputation by the wisdom of our councils, since we know not how soon we may have a fresh occasion for friends, for credit, and for reputation.

Never did old Ben Franklin give more signal evidence of his sagacity. Nearly ten years later, on the 28th of October, 1795, another treaty was ratified with Great Britain. It contained the following provision (Article II):

His Majesty will withdraw all his troops and garrisons from all posts and places within the boundary lines assigned by the Treaty of Peace [1784] to the United States. This evacuation shall take place on or before the first day of June, one thousand seven hundred and ninety six.

The delay in carrying out the original stipula

tion, Great Britain sought to justify by charging the United States with violating the following Article contained in both treaties.1

Article IV. That creditors on either side shall meet with no lawful impediment to the recovery of the full value in Sterling money of all bona fide debts heretofore contracted.

Article VII allowed Great Britain a "convenient" period in which to withdraw its troops. Article IV allowed the United States no time in which to remove lawful impediments to the recovery of debts. The reason was that these did not have to be removed. They were simply to be disregarded or passed by. The provision was, not that there should be no such lawful impediments, but that creditors should not meet with any. To meet with one it was necessary to bring suit and to have some law admitted in bar of trial.2 All that was necessary to prevent this was to have the courts recognize the treaty as binding upon them. This if it could be done at all, would have been

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1 Grenville to King, April 19, 1800. Am. State Papers, For. Rel., II, 398. The violation as originally charged embraced the IV, V, and VI Articles of the two treaties (Hammond to Jefferson, Nov. 30, 1791, and Mch. 5, 1792, Id., 189, 197). The last two articles were dropped, it would seem, upon Jefferson's demonstration of their observance (Jefferson to Hammond, May 29, 1792, Id., 202-205).

2 Ware vs. Hamilton, 3 Dallas, 218.

8 Either of the treaties mentioned. They are alike so far as we consider them.

accomplished by the proclamation of the treaty. Owing to the feebleness of the central government, it was not so accomplished, and for this reason the Constitution adopted in 1789 provided that treaties then made or which should be made under the authority of the United States, should be the supreme law of the land, binding on the judges in every State, anything in the constitution or laws of any State to the contrary notwithstanding. The words that "creditors shall meet with no lawful impediment in the recovery of all such debts" mean that "when the creditors apply to a court of justice, no law shall be pleaded in bar to a judgment for their debts." 1 Even this constitutional provision, though construed by the Supreme Court of the United States in favor of the creditors, as giving them the right to sue without regard to the validity or invalidity of a state law,2 did not wholly repair the fault of the Government in making the indiscreet engagement. The Constitution put the treaty above the laws or constitution of a State, but not above the laws or Constitution of the United States. The latter reserved to the several States certain rights. Alleging these reservations as their justification, the States, in several cases, repudiated the treaty as law and thereby put the central government in the position of having broken it.

1 Ware vs. Hamilton, 3 Dallas, 218. 2 Id., 199.

When the treaty was made, its observance by the United States depended on the voluntary compliance with it by all the States or such a change in the Constitution of the United States as would empower the central government to compel them to comply with it. There was little or no ground for counting upon either of these alternatives. This circumstance was accepted by Great Britain as a condition of the compact when she ratified it. For its consequences, however injurious to her, she had no legal redress.1 If she meant to guarantee the execution of Article IV by retaining possession of certain posts, or otherwise, she should have so stipulated in the treaty. As she did not so stipulate, she was obligated to withdraw all her garrisons from the United States "with all convenient speed." The orders for evacuating New York, the largest post she had, were received in that place in April, 1783. The operation was completed by the end of November. The smaller Western posts might have been evacuated in much less time. Allowing a month for the transmission of the necessary orders from New York, in case the orders had to go through there, and a few weeks for their execution, all the posts might have

1 Referring hereto, Gouverneur Morris said to Pitt (May 21, 1789): "Your natural and proper course was to comply fully on your part, and if then we had refused a compliance, you might rightfully have issued letters of marque and reprisal to such of your subjects as were injured by your refusal." (Am. State Papers, For. Rel., I, 124).