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Britain on the assumption that provisions were contraband of war. Edmund Randolph, Jefferson's successor as Secretary of State, met this by saying: 'We have labored to cultivate with the British nation perfect harmony. We have not attempted by a revival of maxims which, if ever countenanced, are now antiquated, to blast your agriculture or commerce. To be persuaded, as you wish, that the instructions of the 8th of June, 1793, are in a conciliatory spirit, is impossible. And be assured, sir, that it is a matter of sincere regret to learn the intention of your Government to adhere to them, notwithstanding our representations, which utter, as we flatter ourselves, the decent but firm language of right.'

"Under such circumstances President Washington, on the 16th of April, 1794, sent a message to the Senate, in which, referring to the 'serious aspect of our affairs with Great Britain,' he said: But, as peace ought to be pursued with unremited zeal, before the last resource, which has so often been the scourge of nations, and cannot fail to check the advancing prosperity of the United States, is contemplated, I have thought proper to nominate, and do hereby nominate, John Jay, as envoy extraordinary of the United States to his Britannic Majesty.'

"The nomination was confirmed by a vote of 18 to 8. Jay's instructions were dated the 6th of May, 1794. He sailed from New York on the 12th of the same month."

Mr. J. C. B. Davis, Notes, &c.

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Almost immediately after this conciliatory step was taken, 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 he 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 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.'"


Ibid. See supra, §§ 107, 131 ff.

(b) JAY'S TREATY (1794).

§ 150a.

The full text of the instructions to Mr. Jay, and of much minor correspondence relative thereto, will be found in 1 Am. St. Pap. (For. Rel.), 472 ff. Mr. Jay's report of his proceedings in England is in the same volume, 476 ff. The projects and counter projects of the negotiators are given in same volume, 486 ff; see same volume, 705, for Mr. Randolph's correspondence with Mr. Jay.

The policy of President Washington in the negotiations which led to Jay's treaty is given as follows in instructions of September 20, 1794, from Mr. Randolph, Secretary of State, to Mr. Jay: "It is his (the President's) wish that the characteristics of an American minister should be marked on the one hand by a firmness against improper compliances, and on the other by sincerity, candor, and prudence, and by a horror of finesse and chicanery. These ideas, however, will not oppose those firm and temperate representations which you meditate should your present plan fail. For it is fair and indispensable in the event of a rupture to divide the nation from the Government."

The treaty appears in 1 Am. St. Pap. (For. Rel.), 520 ff.

Some of the disputes in construction of Jay's treaty are noticed in 1 John Adams's

Works, 471, 477, 481; 9 ibid., 18, 27, 36, 40, 74, 138.

Mr. Pickering's instructions to Mr. Pinckney of Jan. 16, 1797, as to this treaty,

are published in 1 Am. St. Pap. (For. Rel.), 561.

The proceedings of the Senate and House of Re esentatives respectively, when acting on Jay's treaty, are discussed in a previous section. Supra, § 131 ƒƒ. See also, 3 Life of Pickering, 174.

Under article 18 of this treaty an intention to enter a blockaded port is not cause for condemnation.

Fitzsimmons v. Newport Ins. Co., 4 Cranch, 185.

Jay's treaty provided that British subjects then holding lands in the Territories of the United States may continue to hold them according to their respective titles. It has been beld by the Supreme Court of the United States that this provision is part of the supreme law of the land, being a constitutional exercise of the treaty-making power.

Fairfax v. Hunter, 7 Cranch, 603.

See supra, § 138.

Under the 9th article of Jay's treaty, by which it is provided that British subjects holding lands in the United States, and their heirs, so far as respects those lands and the remedies incident thereto, should not be considered as aliens, the parties must show that the title to the land for which the suit was commenced was in them or their ancestors, when the treaty was made.

Harden v. Fisher, 1 Wheat, 300.

A defeasible title to a freehold estate in Virginia being vested in a British subject during the Revolution, and capable of being divested, by the laws of Virginia, only by inquest of office, or a legislative act equivalent thereto, was protected and confirmed by the 9th article of the treaty of 1794, between the United States and Great Britian, though the holder had never become a citizen.

Craig v. Bradford, 3 Wheat., 594.

To the same effect as the treaty of 1783 was the 9th article of the treaty of 1794, which also provided that, as to the lands held under it, neither the British subjects, nor their heirs should be regarded as aliens. But the term "heirs" was not meant to include any persons

other than such as were British subjects or American citizens at the time of the descent cast.

Orr v. Hodgson, 4 Wheat., 453.

As to construction of the treaty of 1794, so far as concerns title of British subjects to lands, see further, Harden v. Fisher, 1 Wheat., 300, reversing S. C., 1 Paine, 55; Orr v. Hodgson, 4 Wheat., 453; Blight v. Rochester, 7 Wheat., 535; Society for Propagation of Gospel v. Wheeler, 2 Gall., 105.

The commissioners appointed in pursuance of the 5th article of the treaty of 1794 must agree in their decisions, and must all subscribe their names and attach their seals thereto. In case the two original commissioners appointed under said article disagree in the choice of a third, each is to propose one person, and of the two names so proposed, one shall be drawn by lot, and neither of said commissioners has a discretionary power to withhold his nominee or to refuse to draw by lot for the third commissioner.

1 Op., 66, Lee, 1796.

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.

1 Op., 82, Lee, 1798.

By the 27th article of the treaty of 1794, a requisition from the British minister is not authorized unless the persons demanded are charged with murder or forgery committed within the territorial jurisdiction of Great Britain.

1 Op., 83, Lee, 1798. See infra, § 271.

The provision in the 23d article of the treaty that "the ships of war of each of the contracting parties shall at all times be hospitably received in the ports of the other; their officers and crews paying due respect to the laws and Government of the country," is merely declaratory of the usage of nations, that hospitality, which includes protection, is to be enjoyed upon condition that the laws and Government of the country are respected.

1 Op., 87, Lee, 1799.

Under the treaty of 1794 goods and merchandise carried from any place in the territory of His Britannic Majesty on the continent of America, by the subjects of Great Britain, into any of the northern districts of the United States, are subject to the same duties which would be payable by our citizens on the same goods imported from the same place in American ships into the Atlantic ports of the United States.

1 Op., 155, Breckinridge, 1806.

The provision in the 3d article of the 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.


Under the second article of the treaty of 1794 a British subject, held to have elected to become a citizen of the United States by remaining therein, without having declared his intention to continue to be a British subject, did not become, ipso facto, a citizen of the United States. He could do so only by becoming naturalized in accordance with section 2 of the act of 29th January, 1795 (1 Stat., 414).

5 Op., 715, Appendix, Wirt, 1819. See infra, §§ 187–8.

"Your letter of the 10th instant has been received. It asks whether there was in 1872 any treaty between the United States and Great Britain relative to the inheritance of lands situated in this country by British subjects.


"The only provision found in any treaty between the United States and Great Britain touching this point is in the ninth article of the treaty of 1794, whereby it was agreed that British subjects who now hold lands in the Territories of the United States, and American citizens who now hold lands in the dominions of His Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please in like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as aliens.'

"The operation of this stipulation is limited to lands held in the United States and Great Britain respectively, in 1794, and as to the subsequent title to lands so held at that time, the effect of the treaty may be deemed permanent.

"Permit me to refer you to the cases of Shanks and others against Dupont and others, 3 Pet., 242, and to New York v. Clarke, 3 Wheat., 1, for legal decisions as to the construction of the 9th article of the treaty.

"The treaty of 1794, however, is held by the highest authorities to have actually lapsed by reason of the subsequent state of war in 1812-'15, and neither the treaty of Ghent nor any treaty between the two countries since then has re-enacted its provisions in whole or part.

"There is, therefore, no treaty engagement of any character between Great Britain and the United States, which would give to the subjects or citizens of the respective countries the original right to acquire since 1794 any real property by inheritance or purchase, except

in accordance with the laws of the State or Territory where the property is situated."

Mr. Bayard, Sec. of State, to Messrs. L. and E. Lehman, June 23, 1885. MSS.
Dom. Let.

The objects in view in opening a negotiation with Mr. Jay, as special envoy, were as follows:

(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. Infra, § 150. See, also, supra, § 107.

(2) The recognition of the maxim "Free ships make free goods." (3) The establishing of a restricted system of contraband.

(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.

(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 ship-building, 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.

(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

S. Mis. 162-VOL. II- -11


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