Company, "all taxes legally assessed upon any of the property of said company covered by said award, before the same was made, and still unpaid, shall be extinguished by said Puget Sound Agricultural Company; or the amount of such taxes shall be withheld by the Government of the United States from the sum hereby appropriated." The question thus raised was submitted to the Attorney-General of the United States. On the 7th of August 1871 he rendered an opinion to the effect that the award should be paid. The treaty of 1863 stipulated, he said, that the sums awarded under it should be paid in two fixed installments "without any deduction whatever" (Article) IV.). If the proviso inserted by Congress in the appropriation should cause the payment of a less sum than the amount awarded, it would produce a breach of the treaty. The statute should therefore be construed strictly, and be held to mean no more than its language necessarily imported. Under this rule. the term "taxes," standing in an act of Congress, with nothing in the context to enlarge its signification, was construed to mean United States as distinguished from State or Territorial taxes. On the strength of this opinion, as the United States had no claim against the company for taxes, the money was paid over "without any deduction whatever." 2 116 Stats, at L. 419; H. Misc. Doc. 222, 42 Cong. 2 sess. CHAPTER IX. IMPEDIMENTS TO THE RECOVERY OF DEBTS: COMMISSION UNDER ARTICLE VI. OF THE JAY TREATY. Debts Due to British Subjects. In the negotiation of the provisional articles of peace between Great Britian and the United States in 1782 it was found necessary to adjust two questions which involved to a large extent the pecuniary interests of British subjects. These were the question of either restoring the estates of the loyalists or affording indemnity for their confiscation and the question of securing the payment of debts due to British subjects before the war. While the conclusion of peace would once more open the courts of the country to British subjects, there existed on the statute books of various States acts which were passed during the war, and which, remaining in force after its termination, would continue to bar the recovery of debts. Chief among these were the confiscation and sequestration acts, which authorized the payment of debts due to British subjects into the State treasuries and made such payment a full discharge of the obligation of the debtor.' ion. When in the earlier stages of the negotiaJohn Adams's Opin- tions at Paris the British commissioners demanded some provision to secure the payment of debts as well as compensation for the loyalists, Franklin and Jay answered that the matter was one that belonged exclusively to the several States. When John Adams arrived. in Paris he announced a different opinion. "In my first conversation with Mr. Franklin on Tuesday last," says Adams, in his Journal of the Peace Negotiations, under date of Sunday, November 3, 1782,2" he told me of Oswald's demand of the payment of debts and compensation to the Tories. He said their answer had been that we had not power nor had 1 Am. State Papers, For. Rel. I. 193-200. 2 J. Adams's Works, III. 300–301. Congress. I told him I had no notion of cheating anybody. The questions of paying debts and compensating Tories were two. I had made the same observation that forenoon to Mr. Oswald and Mr. Strachey, in company with Mr. Jay, at his house. I saw it struck Mr. Strachey with peculiar pleasure; I saw it instantly smiling in every line of his face. Mr. Oswald was apparently pleased with it, too. In a subsequent conver sation with my colleagues, I proposed to them that we should agree that Congress should recommend it to the States to open their courts of justice for the recovery of all just debts. They gradually fell into this opinion, and we all expressed these sentiments to the English gentlemen, who were much pleased with it, and with reason, because it silences the clamors of all the British creditors against the peace, and prevents them from making common cause with the refugees." Provisions of Treaty of Peace. When the treaty was concluded it went still further. It did more than recommend; it took bold national ground. By its fourth article it positively stipulated "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.” "We have been informed," said the American commissioners in communicating the treaty to their government, "that some of the States had confiscated British debts; but, although each State has a right to bind its own citizens, yet in our opinion it appertains solely to Congress, in whom exclusively are vested the rights of making war and peace, to pass acts against the subjects of a power with which the confederacy may be at war. It therefore only remained for us to consider whether this article is founded in justice and good policy. In our opinion no acts of government could dissolve the obligations of good faith resulting from lawful contracts between individuals of the two countries prior to the war. We knew that some of the British creditors were making common cause with the refugees and other adversaries of our independence; besides, sacrificing private justice to reasons of state and political convenience is always an odious measure; and the purity of our reputation in this respect in all foreign commercial countries is of infinitely more importance to us than all the sums in question. It may also be remarked that American and British creditors are placed on an equal footing."1 Wharton's Dip. Cor. Am. Rev. VI. 132. Inexecution of the But, though the treaty thus provided for the recovery of debts, the Government of the United States was unable to execute it. The States refused to repeal their impeditive enactments, and the State courts continued to enforce them. The government of the confederation was practically powerless, and unable to afford a remedy. On the other hand, there were certain provisions of the teaty which the British Government refused to execute. By the seventh article it was provided that His Britannic Majesty should," 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, garisons and fleets from the said United States, and from every post, place and harbour within the same." The British forces, before and at the time of their withdrawal from certain places, sent or carried away a large number of negroes, in violation, as the United States maintained, of the treaty of peace.' But from certain other places they refused to withdraw. The posts at Detroit, Mackinaw, Fort Erie (Buffalo), Niagara, Oswego, Oswegatchie, Point au Fer, and Dutchmans Point were retained by them.2 Adoption of the When the Constitution of the United States was ratified and the government under it established, Washington took measures to secure the execution of the treaty by Great Britain. Since the conclusion of the peace the relations between the two countries had been in a most unsatisfactory condition, which the outbreak of the revolution in France had lately contributed to aggravate. The British Government, alleging the failure of the United States to fulfill its obligations, had declined to reciprocate the act of the latter government when it sent John Adams as minister to London; and diplomatic intercourse between the two countries had long since ceased. It was hoped, however, in the United States, that the adoption of the Constitution would remove all obstacles that existed in America to the restoration of good relations. By Article VI., clause 2, of that instrument, it was provided that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land, and the Judges in 5627-18 Am. State Papers, For. Rel. I. 206. every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The first object of this clause was to secure the execution of the obligation imposed by the fourth article of the treaty of peace; indeed, it was the refusal of the State courts to execute this article that led the convention to insert the specific provision that all treaties "made," or thereafter to be made, should be binding on "the Judges in every State," in spite of anything in its constitution or laws to the contrary.' Gouverneur Morris's Conceiving it to be desirable, however, to attempt the restoration of good relations without incurring the risk of a rebuff, Washington instructed Gouverneur Morris, who was expected soon to be in London, to make inquiries as to the sentiments and intentions of the British Court as to the performance of the obligat'ons of the treaty of peace, touching the surrender of the frontier posts and compensation for negroes.2 Morris arrived in London on the 28th of March 1790 and lost no time in calling upon the Duke of Leeds, who was then minister for foreign affairs. Being cordially received, he assured the duke that all obstacles to the recovery of British debts had been removed by the Constitution and the organization of Federal courts, and sought to learn the intentions of the British Government as to the performance of its obligations under the treaty. The duke took the ground that the stipulations of the treaty should be performed in the order in which they were therein set forth, and finally declared that it was the purpose of Great Britain to retard the surrender of the posts till redress was granted to British subjects. In this declaration Pitt concurred. Morris's negotiations continued through the summer of 1790 without other result than the promise of the British Government to send a minister to the United States. This promise was fulfilled; but the negotiations which took place from November 1791 to May 1792 between Mr. Jefferson, who was then Secretary of State, and Mr. Hammond, the British minister, on the subject of the execution of the treaty of peace produced nothing more substantial than some voluminous diplomatic notes.4 Coxe's Judicial Power and Unconstitutional Legislation, 272–291. 2 Washington to Morris, October 13, 1789, Am. State Papers, For. Rel. I. 122. 3 Am. State Papers, For. Rel. I. 122 et seq. 4 Am. State Papers, For, Rel. I. 188, 189, 190-193, 193–200, 201–237, 238, |