between the Subjects of the one, and the Citizens of the other, wherefore all Hostilities both by Sea and Land shall from henceforth cease: All Prisoners on both Sides shall be set at Liberty, and 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 & Fleets from the said United States and from every Post, Place and Harbour within the same; leaving in all Fortifications the American Artillery that may be therein : And shall also order & cause all Archives, Records, Deeds & Papers belonging to any of the said States, or their Citizens, which in the Course of the War may have fallen into the Hands of his Officers, to be forthwith restored and deliver'd to the proper States and Persons to whom they belong."

In the eighth article it was provided that: "The Navigation of the River Mississippi, from its source to the Ocean shall forever remain free and open to the Subjects of Great Britain, and the Citizens of the United States."

And in the ninth article it was stipulated: "In Case it should so happen that any Place or Territory belonging to Great Britain or to the United States should have been conquer'd by the Arms of either from the other before the arrival of the said Provisional Articles in America it is agreed that the same shall be restored without difficulty and without requiring any compensation." 25

§ 14. Breaches of this treaty.-There was no power under the confederation to compel the observance of this treaty, and its provisions were ignored by the states. In New York a statute was passed in 1783 by which actions for rent were authorized to be brought by persons who had been forced to abandon their lands by the enemy against those who were in their occupation while the enemy held possession, and which also forbade the pleading in justification of such occupation of any military order or command of the enemy.26 Again, in 1784, after the ratification of the treaty, a statute was passed in the same state which declared that those inhabitants who had given their adhesion to the enemy, if found within the state, should be guilty of mis

25

Compilation of Treaties in Force, Government Printing Office, 1904, pp. 292, 296.

264 Secret Journals, 267.

prision of treason, and that they should be incapable of holding office or of voting at elections.27 Mr. Jay, Secretary of Foreign Affairs, made a report in October, 1786, calling attention to various acts of the states in conflict with the treaty, and mentioned among them the statute passed in 1784 by Massachusetts, which suspended judgment for interest on British debts. until a construction should have been put upon the treaty by Congress declaring it to be due; the law of Pennsylvania in restraint of the levy of executions; the statute of New York of 1782, providing for the restraint of the collection of debts due to persons within the lines of the enemy; the statute of Virginia, prohibiting the collection of debts due to British creditors, and the statute of South Carolina, providing that they might be paid by land instead of money.28 A case was brought in New York to recover the rents of property, under the statute above noted. The defense was conducted by Alexander Hamilton, who contended that the statute violated the treaty, and his contention was sustained by the court, but the legislature of that state declared that the decision was subversive of law and good order, and recommended that such persons should be appointed to office as would "govern themselves by the known law of the land."2

15. Constitution removed this defect.-By the adoption of the Constitution, the inability of the United States to enforce treaty stipulations was removed. Speaking of the impossibility of securing concerted action among the several states prior to the adoption of the Constitution, Mr. Curtis states: "This combined will of distinct communities, expressed through the action of a common agent, was wholly unable to overcome the adverse will of any of them expressed by another and separate agent, although the objects of the powers bestowed on the confederacy were carefully stated, and sufficiently defined in a public compact. "Thus, for example, the treaty-making power was expressly vested in the United States in Congress assembled; but when a treaty had been made, it depended entirely upon the separate pleasure of each state whether it should be executed. If the state governments did not see fit to enforce its provisions upon

4 Secret Journals, 269. 24 Secret Journals, 209.

292 Life of Hamilton, 244.

their own citizens, or thought proper to act against them, there was no remedy, both because the Congress could not legislate to control individuals, and because there was no department clothed with authority to compel individuals to conform their conduct to the requirements of the treaty, and to disregard the opposing will of the state.

"This defect was now to be supplied, by giving to the national authority, not only theoretically but practically, a supremacy over the authority of each state. But this was not to be done by annihilating the state governments. The government of every state was to be preserved; and so far as its original powers were not to be transferred to the general government, its authority over its own citizens and within its own territory must, from the nature of political sovereignty, be supreme. There were, therefore, to be two supreme powers in the same country, operating upon the same individuals, and both possessed of the general attributes of sovereignty. In what way, and in what sense, could one of them be made paramount over the other?

"It is manifest that there cannot be two supreme powers in the same community, if both are to operate upon the same objects. But there is nothing in the nature of political sovereignty to prevent its powers from being distributed among different agents for different purposes. This is constantly seen under the same government, when its legislative, executive, and judicial powers are exercised through different officers; and in truth, when we come to the law-giving power alone, as soon as we separate its objects into different classes, it is obvious that there may be several enacting authorities, and yet each may be supreme over the particular subject committed to it by the fundamental arrangements of society. Supreme laws, emanating from separate authorities, may and do act on different objects without clashing, or they may act on different parts of the same object with perfect harmony. They are inconsistent when they are aimed at each other, or at the same indivisible object. When this takes place one or the other must yield; or, in other terms, one of them ceases to be supreme on the particular occasion. It was the purpose of the framers of the Constitution of the United States to provide a paramount rule that would determine the occasions on which the authority of a state should cease to be supreme, leaving that of the United States unobstructed. Certain conditions were

made necessary to the operation of this rule. The state law must conflict with some provision of the Constitution of the United States, or with a law of the United States enacted in pursuance of the constitutional authority of the Union. The operation of this rule constitutes the supremacy of the national government. It was supposed that, by a careful enumeration of the objects to which the national authority was to extend, there would be no uncertainty as to the occasions on which the rule was to apply; and as all other objects were to remain exclusively subject to the authority of the states within their respective territorial limits, the operation of the rule was carefully limited to those occasions.'' 30

$ 16. Comments of James Madison.-James Madison, urging the ratification of the Constitution in the state convention of Virginia, spoke of the weak powers possessed by the confederation and of the imperative necessity of making the treaty-making power effectual. "The confederation," said he, "is so notoriously feeble, that foreign nations are unwilling to form any treaties with us; they are apprized that our general government cannot perform any of its engagements, but they may be violated at pleasure by any of the states. Our violations of treaties already entered into proves this truth unequivocally. No nation will, therefore, make any stipulations with Congress, conceding any advantages of importance to us; they will be the more adverse to entering into engagements with us, as the imbecility of our government enables them to derive many advantages from our trade, without granting us any return. But were this country united by proper bands, in addition to other great advantages, we could form very beneficial treaties with foreign states. But this can never happen without a change in our system. Were we not laughed at by that minister of that nation, from which we may be able yet to extort some of the most salutary measures for this country? Were we not told that it was necessary to temporize till our government acquired consistency? Will any nation relinquish national advantages to us? You will be greatly disappointed, if you expect any such good effects from this contemptible system. Let us recollect our conduct to that country 1 Curtis' Constitutional History of the United States, 556, 557.

Treaties-2

from which we have received the most friendly aid. How have we dealt with that benevolent ally? Have we complied with our most sacred obligations to that nation? Have we paid the interest punctually from year to year? Is not the interest accumulating, while not a shilling is discharged of the principal? The magnanimity and forbearance of that ally are so great that she has not called upon us for her claims, even in her own distress and necessity." 31

§ 17. Comments of Samuel Adams.-Samuel Adams, of Massachusetts, was at first opposed to the ratification of the Constitution, but finally gave it his approval. Speaking of the inability of the confederation to secure the observance of treaties, he said: "For want of this power in our national head, our friends are grieved, and our enemies insult us. Our ambassador at the court of London is considered as a mere cipher, instead of the representative of the United States. Therefore, it appears to me, that a power to remedy this evil should be given to Congress, and the remedy applied as soon as possible." 32

§ 18. Formation of Constitution.-The legislature of Virginia in January, 1786, provided by a resolution for the appointment of commissioners, who were to meet with such others as should be appointed by the other states in the Union, at a time and place to be decided on, "to take into consideration the trade of the United States; to examine the relative situation and trade of the United States; to consider how far a uniform system in their commercial relations may be necessary, to their common interest, and their permanent harmony; and to report to the several states such an act, relative to this great object, as, when unanimously ratified by them, will enable the United States in Congress assembled to provide for the same. Commissioners from five states only met at Annapolis in September, 1876, but these agreed to take no decisive action, but drafted a report to be submitted to the several states and to Congress, in which they recommended the appointment of commissions from all the states to meet at Philadelphia on the second Monday in May of the following year to

31 3 Elliott's Debates, 135. 32 2 Elliott's Debates, 123.

33

33 5 Marshall's Life of Washington, 90, 91; 1 Kent's Commentaries, 203.