it, and a revocable right to navigate it to any port or place which we may have bordering upon it. They may use it to come to any such port or place, in as ample a manner as they may go to an Atlantic port; but not in a more ample manner; consequently, a prohibition to come to an Atlantic port, will annihilate the conditional permission to go to a port on the Mississippi.

We may, therefore, freely, as to any thing in this article, prohibit British vessels from coming by sea from any part of the world to the United States.

The latter part of the clause gives permission to bring and carry into the respective territories mentioned in the article in manner aforesaid, that is to say, by land passage and inland navi gation, all such goods and merchandise whose importation shall not be entirely prohibited, paying such duties only as the respective subjects and citizens are liable to pay. But we may entirely prohibit any articles we please of the produce or manufacture of Great Britain. And we may prohibit the exportation to Great Britain of any articles whatsoever. Thus will there be ample room to make regulations of the kind alluded to, notwithstanding any thing in this article.

Article IV. This article, as far as it is operative, is right. A survey is a necessary previous step to determine whether the former treaty can be literally executed; and if not, the adjustment of the matter is referred to future negotiation, which leaves it in the power of both parties to come to such an agreement as they deem reasonable and conformable to the true intent of the former treaty.

Article V. This article also provides a good mode of settling the controverted point.

Article VI. It was ever my opinion that no adjustment of the controversy on the inexecution of the former treaty was ever likely to be made, which would not embrace an indemnification for losses sustained, in consequence of legal impediments to the recovery of debts: and indeed it always appeared to me just that an indemnification should be embraced.

The article of the former treaty on this head was, as I conceive, nothing more than the formal sanction of a doctrine which

makes part of the modern law or usage of nations. The confiscation of private debts in time of war is reprobated by the most approved writers on the laws of nations, and by the negative practice of civilized nations, during the present century. The free recovery of them, therefore, on the return of peace, was a matter of course, and ought not to have been impeded, had there been no article.

Admitting that the first breaches of the treaty were committed, as we alleged, by Great Britain, still it would not follow that the impediments which the laws of certain States opposed to the recovery of debts were justifiable.

First, Because it manifestly lay with the general government, to which belonged the powers of treaty, war and peace, to decide whether, in consequence of the breaches of treaty on the other part, it would elect to consider as void the whole, or any article of the treaty. The general government never did so decide, but on the contrary, repeatedly and wisely manifested a different. disposition; wisely, because it was inexpedient to set afloat so important a treaty, which terminated the question of the revolution with the government with which we had contended, and to widen a breach which might at an early stage involve us anew in war. Consequently, the only competent authority having declined to pronounce, it was a usurpation in any State to take upon itself the business of retaliation.

Secondly, Because the interruption of the recovery of debts is contrary (as before observed) to the modern usage of nations, immoral in itself, against the opinions of the generality of enlightened men, and disreputable to the nation which has recourse to it. The practice of most of the States is in conformity with, and a comment upon this doctrine.

But the question, Who committed the first breach of the treaty? if candidly examined, does not admit of as clear a solution in our favor as many imagine or assert.

Two breaches of treaty are imputed to Great Britain; one respecting the carrying away of the negroes, and the other respecting the retention of the posts.

As to the first, Great Britain has much to say with truth and justice.

Her proceedings in seducing away our negroes during the war were to the last degree infamous, and form an indelible stain on her annals.

But having done it, it would have been still more infamous to have surrendered them to their masters.

The reply to this may be, that they ought not then to have stipulated it. This is just; but still the inquiry is, whether they have stipulated it, and the odiousness of the thing, as applied to them, is an argument of weight against such a construction of general expressions in the treaty as would imply the obligation to restitution.

Odious things are not favored in the interpretation of treaties; and though the restoration of property is a favored thing, yet the surrender of persons to slavery is an odious thing, speaking in the language of the laws of nations.

The words of the article are, 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, &c.

There are two constructions of this article; one that the evacuation should be made without depredation, that is, without causing any destruction or carrying away any property, which continued to be such (having undergone no change by the laws of war) at the time of the evacuation; the other, that there was to be, besides a forbearance to destroy or carry away, a positive restitution of all property taken in the war, and at the time of the evacuation which then existed in kind.

In favor of the last construction is the most obvious sense of the words; and as it applies to the negroes merely as an article of property, the justice of restoring what had been taken away in many instances by unwarrantable means.

Against it, and in favor of the first construction, are these considerations.

1. That the expressions are, negroes and other property; which puts negroes, cows, horses, and all other articles of property, on the same footing, and considers them, if at all liable, equally liable to restitution, and all as having equally the common quality of property of the American inhabitants.

Could any thing be considered as property of the American inhabitants, at the time of the treaty, and in contemplation of the treaty, which, by the ordinary rules of the laws of war, had previously become the absolute property of the captors? Is there any thing which exempts negroes more than other articles of personal property, from capture and confiscation as booty? If there is not, why should negroes have been claimed under this article, more than the vessels which had been captured and condemned? Is that a probable sense of the treaty which would require such a restitution?

2. If negroes were objects of capture in war, the captor might proclaim their liberty when in his possession. If once declared free, could the grant be recalled? Could the British government stipulate the surrender of men made free to slavery? Is it natural to put such a construction upon general words, if they will bear another? Is not this, as it regards the rights of humanity, an odious sense?

3. The treaty will bear another construction-that which is put upon it by the British-a provision for greater caution against depredation or the carrying away of property not changed by the laws of war. It is observable, in confirmation of this, that there is no stipulation to restore, but negatively not to carry away; whereas, immediately after, in the same article, there follows a clause which stipulates that "archives, records, &c.," shall be restored and delivered up. This different mode of expression seems to denote a different sense in the two cases.

Let it be observed that I do not mean to advocate this sense in preference to the other. I have at different times viewed the matter in different lights, and our ablest lawyers differ concerning it. I even entertain a clear opinion that the article was intended to operate in our sense of it. But, still, this does not obviate the doubt as to its true legal signification.

All I mean to say is, that there is really a well-founded doubt as to the true legal construction; and, in such case, the acting of the other party, on a construction different from ours, could not be deemed such a clear manifest breach of treaty as to

justify retaliation. The point was merely a matter of amicable discussion and negotiation.

If this was a breach of the treaty, it is necessary to note that it was committed in 1783.

The affair of the posts is more embarrassing.

It is necessary, in the first place, to settle when it became the duty of the British to surrender them. The stipulation is, that it shall be done "with all convenient speed." But from which of the treaties are we to date, the provisional or the definitive? The principle of this question is a point of great difficulty not settled either by the opinions of writers, or by the practice of nations.

I remember that I contended in Congress, shortly after the arrival of the provisional treaty, and when it was known that preliminaries had been signed between France and England, that the execution of the treaty was to date from this epoch, and on this position I grounded a motion to recommend to the States a compliance with the article.

But on the vote upon this motion, I was left alone, and Congress did not act upon the subject till after the arrival of the definitive treaty-that is, 1784.

This amounts to a construction by our government, that the execution was to date from the definitive treaty.

Lord Grenville contends with Mr. Jay for the same position, and urges, consequently, that it was not till after the notice of the ratification by us in England, or, in other words, the exchange of ratifications there, that it could be deemed incumbent upon them to give orders for the evacuation of the posts; which orders could not well have been given before May, nor have arrived in Canada till July.

After the course pursued by us, as already stated, it is difficult to see what can be objected to this construction. It is true the Atlantic posts were evacuated shortly after the provisional treaty; but it may be justly observed, upon this, that it was done for mutual convenience, and in the spirit of conciliation— not on the score of strict obligation; that, however inconsistent with the spirit of an act for restoring peace, it might have been