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upon by the German Government to report for military duty. Thereupon the intervention of the legation of the United States was invoked on the ground that the son was a native American citizen. Under article six of the naturalization treaty of 1868, between the North German Union and the United States, and according to the American rule declared in section 1999 of the Revised Statutes, the father renounced his naturalization in America and became a German subject. By virtue of the German laws, his son, being a minor, also acquired German nationality. Being domiciled with his father, and being as a minor, subject to him, according to both German and American law, and receiving German protection, and declining to give any assurance of intention to return to and reside in the United States, the son during his minority, when in Germany, cannot invoke the aid of the Government of the United States. But when he reaches the age of twenty-one years he may elect whether he will return to and take the nationality of his birth, with its duties and privileges, or retain the nationality acquired by the act of his father.
15 Op., 15, Pierrepont, 1875. See on this topic infra, §§ 183 ff.
The presumption of abandonment of adopted citizenship in the United States created, under treaty, by a residence in Germany of over two years, is only prima facie, and may be rebutted by proof of an intention to return to the United States.
Infra, § 179.
(12) GREAT BRITAIN.
(a) TREATY OF 1783. PEACE.
The treaty of peace was a treaty of partition of the British Empire. The sovereignty of the United States over its own territory was recognized by Great Britain; the sovereignty of Great Britain over her own territory was recognized by the United States.
Supra, §6; infra, § 302; see McIlvaine v Coxe, 4 Cranch, 409, cited infra in this
"On the 3d day of September, 1783, Adams, Franklin, and Jay signed at Paris the definitive treaty of peace between the two powers. The official correspondence connected with the negotiation of this treaty has been printed under the care of Mr. Sparks.
"It was provided by the seventh article of each treaty that' His Britannic Majesty shall, with all convenient speed, and without causing any destruction, or carrying away any negroes or other property of the American inhabitants, withdraw all his armies, garrisons, and fleets from the said United States, and from every port, place, and harbor within the same.'
"But when the British forces were withdrawn from New York, on the 25th of the November following the signature of the definitive treaty,
they took with them, or sent in advance of their withdrawal, 3,000 negroes, in violation of the treaty; and when Jay was commissioned in 1794 to proceed to London to negotiate the treaty which bears his name, British troops still occupied Detroit, Mackinaw, Fort Erie (Buf falo), Niagara, Oswego, Oswegatchie, Point au Fer, and Dutchman's Point, notwithstanding the agreement to evacuate them."
Mr. J. C. B. Davis, Notes, &c.
The negotiation of this treaty is detailed in 1 Lyman's Diplomacy of the U. S., chap. iv, and that of Jay's treaty in same volume, chap. vi.
The treaty of 1783 did not create the boundaries of the then United States or the national rights arising therefrom. It merely recognized them as they then existed. This is eminently the case with the northeastern fisheries, which the colonies, in connection with the parent Government, had conquered from France, and which were the appurtenances of the colonies, in joint possession with the parent state. The United States continued, after the peace, to hold these fisheries in common with Great Britain, subject only to such mutual concessions as the treaty expressed.
Infra, §§ 302 ff.
In the London Diplomatic Review for October, 1872 (vol. xx, 231), is the following: "The astute and resolute representatives of the United States have on every occasion shown a marked superiority over ours in framing and interpreting treaties, and on the assertion or infringement of rights in which British interests were concerned; but in no instance have they given a more signal proof of their skill in this regard than they did in that portion of the treaty of 1783 which purported to define the territorial boundary between the mother country and her emancipated colonists."
As to treaty of peace with Great Britain, see 1 John Adams's Works, 294, 355, 359; 3 ibid., 74, 78, 259, 281, 290, 299; 7 ibid., 119, 143, 165, 177, 238, 306, 431, 554, 562,570, 606, 610, 639, 645, 649.
As to its signature and ratification, see 3 John Adams's Works, 348, 363-683; 8 ibid., 50, 54, 57, 72–92, 115, 134, 137, 143, 154, 165, 177, 180, 196, 204, 358; 9 ibid., 521.
The correspondence in 1792 between Mr. Hammond, the first British minister to the United States, and Mr. Jefferson, Secretary of State, on the alleged non-execution of the treaty of peace so far as concerns confiscation of loyalist's estates and the right of British creditors to recover debts in the United States is given in 1 Am. St. Pap. (For. Rel.), 193 ff. Gouverneur Morris' letters to President Washington, when on a confidential agency of inquiry in England in 1790, are in 1 Am. St. Pap., 120 ff.
By the fourth article of the definitive treaty of peace between the United States and Great Britain, of the 3d of September, 1783, British creditors were enabled to recover debts previously contracted to them by our citizens, notwithstanding a payment of the debt into a State treasury had been made during the war, under the authority of a State law of sequestration.
Ware v. Hylton, 3 Dall., 199; State of Georgia v. Brailsford, 3 Dall., 4, 5. See discussion in 2 Phill. Int. Law (3d ed.), 123.
The treaty of peace with Great Britain prevents the operation of the statute of limitations of Virginia on British debts which were incurred before the treaty.
Hopkirk v. Bell, 3 Cranch, 454.
On the execution of the treaty of 1783, acknowledging the independence of the United States, all persons, whether born in the United States or otherwise, who adhered to the United States, were absolved from their allegiance to Great Britain, while those who adhered to Great Britain were British subjects.
McIlvaine v. Coxe, 4 Cranch, 209.
The several States which compose the Union, so far at least as regarded their municipal regulations, became entitled, from the time when they declared themselves independent, to all the rights and powers of sovereign States, and did not derive them from concessions of the British King. The treaty of peace was a recognition, not a grant, of the independence of those States. Hence the laws of the several State governments passed after the Declaration of Independence were the laws of sovereign States, and as such obligatory upon the people of each State.
Ibid. See supra, § 6.
Article 5 of the treaty of peace with Great Britain of 1783 saved the lien of a mortgage upon confiscated lands which at the time remained unsold.
Higginson v. Mein, 4 Cranch, 415.
The "interest in lands by debts" protected by article 5 of the treaty of peace with Great Britain of 1783, must be an interest held as security for money at the time of the treaty.
Owings v. Norwood's Lessee, 5 Cranch, 344.
As to effect of the treaty of peace of 1783 with Great Britain, and of treaty of 1794, in protecting titles of British subjects to land in Virginia, see Fairfax's Devisee v. Hunter's Lessee, 7 Cranch, 603; Craig v. Bradford, 3 Wheat., 594.
The sixth article of the treaty of peace of 1783 protected from forfeiture, by reason of alienage, lands then held by British subjects.
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 subse quently acquired. But in the case of titles existing at the proclaiming of the treaties actual possession was not necessary.
Blight v. Rochester, 7 Wheat., 535. See Shanks v. Dupont, 3 Pet., 242.
British subjects born before the Revolution are incapable of inheriting lands in the United States, save by force of some treaty.
Blight v. Rochester, 7 Wheat., 535.
[§ 150. Corporations, under the treaties with Great Britain of 1783 and 1794, are entitled to the same rights as are natural persons.
Society for Propag. Gospel v. New Haven, 8 Wheat., 464.
All British grants of land in the United States made subsequent to the Declaration of Independence are inoperative under the treaty of 1783.
Harcourt v. Gaillard, 12 Wheat., 523; supra, § 5a.
Under the treaty of 1783 with Great Britain, all those, whether natives or otherwise, who then adhered to the American States, were virtually absolved from all allegiance to the British Crown; all those who then adhered to the British Crown were deemed and held subjects of that Crown.
Shanks v. Dupont, 3 Pet., 242.
The United States, by the treaty of 1783 with Great Britain, acquired the sovereignty of Michigan, which was part of the French domain prior to the conquest by Great Britain in 1750, and as an incident of such sovereignty succeeded to the prerogatives of the King of France in dealing with seignioral estates for a forfeiture for non-fulfillment of the conditions of the fief.
U. S. v. Repentigny, 5 Wall., 211.
The term "prosecutions," employed in the sixth article of the treaty with Great Britain 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.
1 Op., 50, Bradford, 1794.
The correspondence between Mr. Jefferson and Mr. Hammond opened with a formal statement by Mr. Jefferson, on November 29, 1791, of the grievances of the United States on the non-performance of the British stipulations in the treaty of 1783. "On the 30th of November Hammond replied to Jefferson's note thus: With respect to the non-execution of the seventh article of the definitive treaty of peace between His Britannic Majesty and the United States of America, which you have recalled to my attention, it is scarcely necessary for me to remark to you, sir, that the King, my master, was induced to suspend the execution of that article, on his part, in consequence of the non-compliance, on the part of the United States, with the engagements contained in the fourth, fifth, and sixth articles of the same treaty. These two objects are, therefore, so materially connected with each other as not to admit of separation, either in the mode of discussing them, or in any subsequent arrangements which may result from that discussion.'
"Jefferson met this on the 15th of December by a note stating briefly the American position as to the British infractions of the treaty and producing evidence in its support. This drew from Hammond an elaborate reply on the 5th of March, 1792, in which he contended (1) that the United States had failed to execute the 4th article of the treaty, by not
preventing the placing of impediments in the way of the recovery, in sterling, of debts due to British subjects; (2) that interest had not been allowed on judgments in favor of British creditors; and (3), that article 5 had not been carried into effect by the United States, inasmuch as confiscated estates had not been restored; and that therefore the measure that the King has adopted (of delaying his compliance with the 7th article of the treaty) is perfectly justifiable.' To this Jefferson, on the 29th of May, 1792, replied, (1) that impediments, within the meaning of the treaty, had not been thrown in the way of the collection of British debts in the United States; (2) that interest is not an integral part of a debt under British and American law, and therefore it was not embraced in the treaty; (3) that the United States had only undertaken in the treaty to recommend the States to restore confiscated estates, and had fully complied with that agreement; and he showed conclusively that it was understood both by the ministry and by both houses of Parliament, when the treaty was negotiated, that the American plenipotentiaries not only would not agree to restore the coufiscated estates, but expressed the opinion that the States themselves would not restore them, even if recommended by Congress to do so; (4) that the British infractions of the treaty, so far from being the result of alleged infractions by the United States, preceded them, and were in no way dependent upon them.
"More than a year elapsed without a reply. Jefferson then, on the 19th of June, 1793, wrote Hammond, asking when one might be expected. The subject,' he said, 'was extensive and important, and therefore rendered a certain degree of delay in the reply to be expected. But it has now become such as naturally to generate disquietude. The interests we have in the western posts, the blood and treasure which their detention costs us daily, cannot but produce a corresponding anxiety on our part.' Hammond replied that as soon as he should receive instructions the reply should be transmitted, and added, "There is one passage in your letter of yesterday, sir, of which it becomes me to take some notice. The passage I allude to is that wherein you mention "the blood and treasure which the detention of the Western posts costs the United States daily." I cannot easily conjecture the motives in which this declaration has originated. After the evidence that this Government has repeatedly received of the strict neutrality observed by the King's governors of Canada, during the present contest between the United States and the Indians, and of the disposition of those officers to facilitate, as far as may be in their power, any negotiations for peace, I will not for a moment imagine that the expression I have cited was intended to convey the insinuation of their having pursued a different conduct.'
"Jefferson made no response to this. In a few months he again asked Hammond whether he was prepared to reply on this subject of the infractions of the treaty. No answer was ever made.
"In the autumn of 1793 a new question of difference arose. The admiralty instructions to British ships of war and privateers, issued in June, 1793, ordered the seizure of all neutral vessels laden with corn, flour, or meal, destined for French ports, and of all neutral vessels, except those of Denmark and Sweden, attempting to enter any blockaded port. As Denmark, Sweden, and the United States were the principal neutral maritime powers, there was no question as to the vessels against which the latter provision was aimed. When complaint was made of the order to seize vessels laden with provisions, it was justified by Great