The Online Library of Liberty

A project of Liberty Fund, Inc.

• Miscellaneous Papers
• Cincinnati 1
• Speeches In the New York Assembly, 1787 1
• Speech On Acceding to the Independence of Vermont
• Eulogium On Major-general Greene Delivered Before the Society of the Cincinnati
• Presidential Etiquette: Hamilton to Washington
• Public Lands: Report of a Uniform System For the Disposition of the Lands, the Property of the United States
• Heads of Topics For President’s Speech of December 8, 1790 1
• Apportionment of Representatives
• Indian Affairs
• President’s Speech 1
• Indian Affairs Cabinet Opinion.
• Convening Congress: Hamilton to Washington 1
• Objects to Be Communicated In Speech and Messages
• President’s Speech 1
• President’s Message 1
• Proclamation For a National Thanksgiving 1
• Explanation 1
• Washington’s Speech to Congress 1
• Message For Washington to Congress, In Reply to a Call For Papers Relating to the Treaty With Great Britain 1
• Farewell Address 1
• Washington’s Farewell Address 1
• Part of Washington’s Speech to Congress 3
• Address to the Electors of the State of New York
• Examination of Jefferson’s Message to Congress of December 7, 1801 1
• Lansing Or Burr 1
• Law Briefs
• Carriage Tax 1
• The Law of Libel 1
• Speech In the Case of Harry Croswell 1
• Fragment On the French Revolution 1
• Defence of the Funding System 1

LAW BRIEFS

validity of certain british acts

Question. Will the acts (particularly judgments and executions) of courts, exercising jurisdiction under the authority of Great Britain, subsequent to the time when by the treaty of peace the Western posts ought to have been delivered up, within the districts comprehending those posts, be recognized as valid by the courts of the United States?

This question is both new and difficult. The argument for the negative is—that the treaty of peace having admitted those territories to be within the United States, the detention of them after the time when they ought to have been surrendered, and all exercise of inspection over them by Great Britain after that time, to be wrongful and unlawful; especially as not sanctioned by the jus belli, there being a state of peace, consequently the tribunals of Great Britain are illegal and incompetent, interfering with those of the United States, and their acts as nullities.

The argument for the affirmative is—that Great Britain being antecedently in the possession of those posts (jure belli) and not having actually restored them to the jurisdiction of the United States after the peace, her anterior jurisdiction must be supposed to have continued, and that of the United States in virtue of territorial right, suspended by the adverse possession of a foreign sovereign power; that, therefore, there was no interference of jurisdiction, especially as the United States had not within the districts in question any competent organs to exercise jurisdiction. That the treaty of peace having only stipulated that the posts should be delivered up as soon as conveniently might be, there was no judicial epoch from which to date the cessation of British jurisdiction and the commencement of American.

That the wrongful detention was a question between the two governments foreign to the fact of jurisdiction, as it respected individuals and the effects of it. That with regard to those who were under the coercion of the jurisdiction in fact, and whose mutual dealings had reference to it, the legal effects ought to be according to the fact. That convenience and legal justice will both be promoted by this principle and extremely infringed by its opposite.

It is impossible to foresee with certainty what will be the determination of the courts of the United States on the point; but it is conceived that the argument for the affirmative, on great principles of policy, convenience, and right, ought to prevail, and it is presumed that it will.