to have detained places in the heart of our settled country; being, besides, the capitals of the States in which they were, there was entire liberty to pursue a stricter rule as to the Western posts, some delay concerning which could not have been of material inconvenience to us; and that it was reasonable to pursue the strict rule here, to see what course the execution of the treaty was likely to take on our part.

But our dilemma is this: that if the delay of orders for evacuating the posts till after the exchange of ratifications of the definitive treaty, was a breach of the treaty, as contended for by Mr. Jefferson, the delay of acting upon the fifth article till after the ratification of the definitive treaty in this country, was equally a breach of the treaty on our part, and a prior, at least, a cotemporary breach.

Let us now see how, in point of time, the breaches will stand on our part. In this I shall not aim at an accurate enumeration, but shall select particular instances.

1. An act of New-York for granting a more effectual relief in cases of certain trespasses, passed the 17th of March, 1783.

This act takes away from any person within the British lines who had occupied, injured, or destroyed the property, real or personal, of an inhabitant without the lines, the plea of a military order for so doing; consequently, the justification which he might derive from the laws and usages of war, in contravention of the treaty of peace.

It is true, it preceded for a short time the arrival of the provisional treaty in this country; but it is notorious that it was in expectation and contemplation of the event.

This circumstance of priority of time, leads Mr. Jefferson to put this act out of the question; but in fair reasoning this is hardly admissible.

It continued to have, in fact, an extensive operation, from the time of the evacuation of the city of New-York till the repeal of the exceptionable clause, by an act of the 4th of April, 1787.

It hardly appears a satisfactory answer to this, to say, as Mr.

3

Jefferson has done, that the courts did not sanction the principle of the act; that in one instance, the case of Rutgers and Waddington, the mayor's court overruled it.

The fact is, that from the very express terms of the act, a general opinion was entertained, embracing almost our whole bar, as well as the public, that it was useless to attempt a defence; and, accordingly, many suits were brought, and many judgments given, without the point being regularly raised, and many compromises were made, and large sums paid, under the despair of a successful defence. I was for a long time the only practicer who pursued a different course, and opposed the treaty to the act; and though I was never overruled in the Supreme Court, I never got my point established there. I effected many easy compromises to my clients, afraid myself of the event in the Supreme Court, and produced delays till the exceptionable part of the act was repealed. The Supreme Court frequently, in a studied manner, evaded the main question, and turned their decision upon the forms of pleading.

"Tis perhaps enough for the other party to say that here was a positive law of a state, unrepealed, and acted upon so as in fact to defeat, in a material degree, the operation of the treaty. The injury was suffered, and there ought never to have existed so critical a conflict between the treaty and the statute law of a

state.

If the operation of this law was a breach of the treaty, it was a breach from the first moment of the ratification of the provisional articles till the 4th of April, 1787. Nothing could be anterior to it.

Another act of the 4th of May, 1784, provided a mode by which the foregoing act should have effect upon the estates of absentees, which in several instances produced judgments without opportunity of defence. It is to be observed that the British commander-in-chief early remonstrated against this act as inconsistent with the treaty, and yet it continued unrepealed.

Another act of New-York, of the 12th of May, 1784, in the strongest and most express terms, confirms all confiscations before

made, notwithstanding any errors in the proceedings, and takes away the writ of error upon any judgment before rendered.

This is substantially a new confiscation. If the judgments before rendered were from error invalid, the confiscations were nullities to take away the writ of error which was the mode of annulling them, was equivalent to making new confiscations. This act was an undoubted breach of the treaty, and is prior to the time when the breach by the non-surrender of the posts can be dated.

An act of South Carolina, March 26, 1784, suspends the recovery of British debts for nine months, and then allows them to be recovered in four yearly instalments.

This also was a plain contravention of the treaty, and dates before the breach by non-surrender of the posts.

Virginia, in June, 1784, resolved that her courts should be opened to British suits as soon as reparation should be made with regard to the negroes and posts, or otherwise as Congress should judge it indispensably necessary.

If her courts were before closed, which this resolution admits, it was in consequence of acts passed prior to the treaty, which her courts had deemed obligatory upon them after the treatyand it follows that there was a continual violation of the treaty from its ratification till 1787, when Virginia repealed all acts repugnant to the treaty.

Taking, therefore, the carrying away of the negroes to be a breach of treaty, 'tis a very moot point whether some of the laws of the States did not produce antecedent breaches.

Putting that out of the question and taking the definitive treaty, according to the construction just put upon it by our own conduct, as the act from which the execution was to date, and allowing reasonable time for the ratification to be notified and exchanged-it is certain that the first breaches were committed by us.

The use of these remarks is to show, that a candid and unprejudiced view of the subject tends to moderate the sanguine pretensions which have been built on the suggestion of the first breach having been committed by Great Britain, and to manifest

the reasonableness of having stipulated compensation in the cases of the breaches made by us.

Indeed, admitting the first breaches by Great Britain, I do not see that it would affect the conclusion that compensation was to be made.

The following seems to be the fair view of the subject.

Mutual infractions of the treaty had taken place. Either our infractions were to be considered as the equivalents for those of Great Britain, and then having enjoyed the equivalents we had no right to ask reparation in addition-or, if we preferred reparation for the infractions by Great Britain, we were to renounce the equivalents for them.

Then it will follow, that the surrender of the posts on their side would draw with it a right of compensation for the losses suffered by impediments to the recovery of the debts on our side.

In other words, the treaty was to remain mutually broken and unexecuted in certain points, or it was to be reinstated by mutual performance. Performance as to the article of the debts is compensation for the losses sustained by impediments to the recovery, and the removal of those impediments.

In fine, it would, in my judgment, independent of the treaty, have been dishonorable and unjust in us to have interfered with the recovery of private debts-it was dishonorable and unjust to have interfered with them on the grounds which were the pretexts, and it is honorable and just to make compensation. The reputation of the country as well as its peace required the stipu lation.

It is not perceived that there is any thing exceptionable in the mode of determining and adjusting the compensations to be made in the cases in which this may be deemed proper-or that any better mode could be substituted. The article appears in general sufficiently well guarded.

Article VII. This article appears to me as well arranged as could have been expected.

It is objected to as too dilatory, but no reasonable substitute has occurred.

The United States could not have demanded a gross sum, because they had no adequate standard by which to ascertain what was proper. They might have asked too much or too little.

Great Britain, for the same reasons, could not have been expected to agree to the demand of a gross sum. This is not the way that nations deal with each other, unless where one is in a situation to dictate to the other. This was not our situation.

Indemnification on equitable principles was all that could be expected. This necessarily supposes a mode of ascertaining with due investigation the real losses.

But one of three modes can well be thought of; to refer the adjustment to the tribunals of the United States-to refer it to the tribunals of Great Britain, or to submit it to referees mutually appointed.

Either of the first two modes was inadmissible, because liable to partiality. The tribunals of the United States could never get hold of these cases without inverting entirely the course of similar transactions. Those of Great Britain will now in many cases decide in the first instance, but no American would choose to leave the ultimate decision there. Referees have therefore a comprehensive power to do justice in all cases in which it could. not be obtained in the ordinary course.

But, it is said, 'twere better commissioners should have decided in the first instance without reference to the courts for the greater despatch.

This might have had a contrary tendency to that of promoting dispatch. Appeals, in a great number of cases, will have gone forward; and it was better they should have had their course than to be arrested to be turned over to the referees. "Tis probable, from the expedition of admiralty proceedings, that the courts will have done their part by the time the referees are ready to begin.

It is to be observed too, that this article follows closely the provision with regard to the debts; and it was material this should be the case.

We certainly must prefer that our courts of justice should