Chapter XVIII: Section 1: I can assure you with truth, that we meet you on this (1)

occasion, with the sincerest dispositions to remove from between the two countries those obstacles to a cordial friendship, which have arisen from an inexecution of some articles of the treaty of peace. The desire entertained by this country, to be on the best terms with yours, has been constant, and has manifested itself through its different forms of administration, by repeated overtures to enter into such explanations and arrangements as should be right and necessary to bring about a complete execution of the treaty. The same dispositions lead us to wish, that the occasion now presented should not be defeated by useless recapitulations of what had taken place anterior to that instrument. It was with concern, therefore, I observed that you had thought it necessary to go back to the very commencement of the war, and in several parts of your letter to enumerate and comment on all the acts of our different legislatures, passed during the whole course of it, in order to deduce from thence, imputations which your justice would have suppressed, had the whole truth been presented to your view, instead of particular traits, detached from the ground on which they stood. However easy it would be to justify our country, by bringing into view the whole ground, on both sides, to show that legislative warfare began with the British Parliament; that when they levelled at persons or property, it was against entire towns or countries, without discrimination of cause or conduct, while we touched individuals only; naming them man by man, after due consideration of each case, and careful attention not to confound the innocent with the guilty; however advantageously we might compare the distant and tranquil situation of their Legislature with the scenes in the midst of which ours were obliged to legislate; and might then ask, whether the difference of circumstance and situation would not have justified a contrary difference of conduct, and whether the wonder ought to be, that our legislatures had done so much, or so little? we will waive all this, because it would lead to recollections, as unprofitable as unconciliating. The titles of some of your acts, and a single clause of one of them only, shall be thrown among the documents at the end of this letter, No. 1, 2, and with this we will drop forever the curtain on this tragedy!

Sec. 2. We now come together to consider that instrument which was to heal our wounds, and begin a new chapter in our history. The state in which that found things, is to be considered as rightful: so says the law of nations. [6]"L'état où les choses se trouvent au moment du traité doit passer pour legitime; et si l'on veut y apporter du changement il faut que le traité en fasse une mention expresse. Par consequent toutes les choses dont le traité ne dit rien, doivent demeurer dans l'etat où elles se trouvent lors de sa conclusion." Vattel, 1. 4, s. 21. [7]"De quibus nihil dictum, ea manent quo sunt loco." Wolf, 1222. No alterations then are to be claimed on either side, but those which the treaty has provided. The moment, too, to which it refers, as a rule of conduct for this country at large, was the moment of its notification to the country at large. Vattel, 1. 4, s. 24. [8]"Le traité de paix oblige les _parties contractantes_ du moment qu'il est conclu aussitôt qu'il a reçu toute sa forme; et elles doivent procurer incessamment l'execution; mais ce traité n'oblige les _sujets_ que du moment qu'il leur est notifié." And s. 25. "Le traité devient _par la publication_, une loi pour les sujets, et ils sont obligés de se conformer désormais aux dispositions dont on y est convenu." And another author as pointedly says, [9]"Pactio pacis _paciscentes_ statim obligat quam primum _perfecta_, cum ex pacto veniat obligatio. Subditos vero et milites, quam primum iisdem fuerit _publicata_; cum de eâ _ante publicationem ipsis certo constare non possit_." Wolf, s. 1229. It was stipulated, indeed, by the ninth article, that "if, before its arrival in America," any place or territory, belonging to either party, should be conquered by the arms of the other, it should be restored. This was the only case in which transactions, intervening between the signature and publication, were to be nullified.

Congress, on the 24th of March, 1783, received informal intelligence from the Marquis de la Fayette, that provisional articles were concluded; and, on the same day, they received a copy of the articles, in a letter of March 19th, from General Carleton and Admiral Digby. They immediately gave orders for recalling all armed vessels, and communicated the orders to those officers, who answered, on the 26th and 27th, that they were not authorized to concur in the recall of armed vessels, on their part. On the 11th of April, Congress received an official copy of these articles from Dr. Franklin, with notice that a preliminary treaty was now signed between France, Spain and England. The event having now taken place on which the provisional articles were to come into effect, on the usual footing of preliminaries, Congress immediately proclaim them, and, on the 19th of April, a cessation of hostilities is published by the commander-in-chief. These particulars place all acts preceding the 11th of April out of the present discussion, and confine it to the treaty itself, and the circumstances attending its execution. I have therefore taken the liberty of extracting from your list of American acts all of those preceding that epoch, and of throwing them together in the paper No. 6, as things out of question. The subsequent acts shall be distributed, according to their several subjects, of I. Exile and confiscation: II. Debts: and III. Interest on those debts:

Beginning, I. with those of exile and confiscation, which will be considered together, because blended together in most of the acts, and blended also in the same article of the treaty.

Sec. 3. It cannot be denied that the state of war strictly permits a nation to seize the property of its enemies found within its own limits, or taken in war, and in whatever form it exists, whether in action or possession. This is so perspicuously laid down by one of the most respectable writers on subjects of this kind, that I shall use his words, [10]"Cum ea sit belli conditio, ut hostes sint omni jure spoliati, rationis est, quascunque res hostium apud hostes inventas dominum mutare, et fisco cedere. Solet præterea in singulis fere belli indictionibus constitui, ut bona hostium, tam _apud nos reperta_, quam capta bello publicentur. Si merum jus belli sequamur, etiam _immobilia_ possent vendi, et eorum pretium in fiscum redigi, ut in mobilibus obtinet. Sed in omni fere Europa sola fit annotatio, ut eorum fructus, durante bello, percipiat fiscus, finito autem bello, ipsa immobilia ex pactis restituuntur pristinis dominis." Bynkersh. Quest. Jur. Pub. 1. 1, c. 7. Every nation, indeed, would wish to pursue the latter practice, if under circumstances leaving them their usual resources. But the circumstances of our war were without example; excluded from all commerce, even with neutral nations, without arms, money, or the means of getting them abroad, we were obliged to avail ourselves of such resources as we found at home. Great Britain, too, did not consider it as an ordinary war, but a rebellion; she did not conduct it according to the rules of war, established by the law of nations, but according to her acts of parliament, made from time to time, to suit circumstances. She would not admit our title even to the _strict rights_ of ordinary war; she cannot then claim from us its _liberalities_; yet the confiscations of property were by no means universal, and that of debts still less so. What effect was to be produced on them by the treaty, will be seen by the words of the fifth article, which are as follows:

Sec. 4. "Art. V. It is agreed, that the Congress shall earnestly recommend it to the Legislatures of the respective States, to provide for the restitution of all estates, rights, and properties, which have been confiscated, belonging to real British subjects, and also of the estates, rights, and properties, of persons resident in districts in the possession of his Majesty's arms, and who have not borne arms against the said United States; and that persons of any other description shall have free liberty to go to any part or parts of the thirteen United States, and therein to remain twelve months, unmolested in their endeavors to obtain the restitution of such of their estates, rights, and properties, as may have been confiscated; and that Congress shall also earnestly recommend to the several States a reconsideration and revision of all acts or laws regarding the premises, so as to render the said laws or acts perfectly consistent, not only with justice and equity, but with that spirit of conciliation, which, on the return of the blessings of peace, should universally prevail; and that Congress shall also earnestly recommend to the several States, that the estates, rights, and properties, of such last-mentioned persons, shall be restored to them, they refunding to any persons, who may be now in possession, the bona fide price (where any has been given), which such persons may have paid on purchasing any of the said lands, rights, or properties, since the confiscation. And it is agreed, that all persons who have any interest in confiscated lands, either by debts, marriage, settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights."

"Art. VI. That there shall be no future confiscations made."

Sec. 5. Observe, that in every other article, the parties agree expressly, that such and such things _shall be done_; in this, they only agree to _recommend_ that they shall be done. You are pleased to say (page 7), "It cannot be presumed, that the Commissioners, who negotiated the treaty of peace, would engage, in behalf of Congress, to make _recommendations_ to the Legislatures of the respective States, which they did not expect to be effectual, or enter into direct stipulations which they had not the power to enforce." On the contrary, we may fairly presume that, if they had had the power to _enforce_, they would not merely have _recommended_. When, in every other article, they agree expressly _to do_, why in this do they change the style suddenly, and agree only to _recommend_? Because the things here proposed to be done were retrospective in their nature--would tear up the laws of the several States, and the contracts and transactions, private and public, which had taken place under them; and retrospective laws were forbidden by the constitutions of several of the States. Between persons whose native language is that of his treaty, it is unnecessary to explain the difference between _enacting_ a thing to be done, and _recommending_ it to be done; the words themselves being as well understood as any by which they could be explained. But it may not be unnecessary to observe, that _recommendations_ to the people, instead of _laws_, had been introduced among us, and were rendered familiar in the interval between discontinuing the old, and establishing the new governments. The conventions and committees who then assembled, to guide the conduct of the People, having no authority to oblige them by law, took up the practice of simply recommending measures to them. These recommendations they either complied with or not, at their pleasure. If they refused, there was complaint, but no compulsion. So, after organizing the Governments, if at any time it became expedient that a thing should be done, which Congress, or any other of the organized bodies, were not authorized to ordain, they simply recommended, and left to the People, or their Legislatures, to comply, or not, as they pleased. It was impossible that the negotiators on either side should have been ignorant of the difference between agreeing _to do_ a thing, and agreeing only to _recommend_ it to be done. The import of the terms is so different, that no deception or surprise could be supposed, even if there were no evidence that the difference was attended to, explained, and understood.

Sec. 6. But the evidence on this occasion removes all question. It is well known that the British court had it extremely at heart, to procure a restitution of the estates of the refugees who had gone over to their side; that they proposed it in the first inferences, and insisted on it to the last; that our commissioners, on the other hand, refused it from first to last, urging, 1st. That it was unreasonable to restore the confiscated property of the refugees, unless they would reimburse the destruction of the property of our citizens, committed on their part; and 2dly. That it was beyond the powers of the commissions to stipulate, or of Congress to enforce. On this point, the treaty hung long. It was the subject of a special mission of a confidential agent of the British negotiator from Paris to London. It was still insisted on, on his return, and still protested against, by our commissioners; and when they were urged to agree only, that Congress should _recommend_ to the State Legislatures to restore the estates, &c., of the refugees, they were expressly told that the Legislatures would not regard the recommendation. In proof of this, I subjoin extracts from the letters and journals of Mr. Adams and Dr. Franklin, two of our commissioners, the originals of which are among the records of the Department of State, and shall be open to you for a verification of the copies. These prove, beyond all question, that the difference between an express agreement to do a thing, and to recommend it to be done, was well understood by both parties, and that the British negotiators were put on their guard by those on our part, not only that the Legislature will be free to refuse, but that they probably would refuse. And it is evident from all circumstances, that Mr. Oswald accepted the _recommendation_ merely to have something to oppose to the clamors of the refugees--to keep alive a hope in them, that they might yet get their property from the State Legislatures; and that, if they should fail in this, they would have ground to demand indemnification from their own Government; and he might think it a circumstance of present relief at least, that the question of indemnification by them should be kept out of sight, till time and events should open it upon the nation insensibly.

Sec. 7. The same was perfectly understood by the British ministry, and by the members of both Houses in Parliament, as well those who advocated, as those who oppose the treaty; the latter of whom, being out of the secrets of the negotiation, must have formed their judgments on the mere import of the terms. That all parties concurred in this exposition, will appear by the following extracts from the parliamentary register; a work, which, without pretending to give what is spoken with verbal accuracy, may yet be relied on, we presume, for the general reasoning and opinions of the speakers.

House of Commons.--_The preliminary articles under consideration; 1783, February 17th._

_Mr. Thomas Pitt._--"That the interests of the sincere loyalists were as dear to him, as to any man; but that he could never think it would have been promoted by carrying on that unfortunate war, which Parliament had in fact suspended before the beginning of the treaty; that it was impossible, after the part Congress was pleased to take in it, to conceive that their _recommendation_ would not have its proper influence on the different Legislatures; that he did not himself see what more could have been done on their behalf, except by renewing the war for their sakes, and increasing our and their calamities."--_9 Debrett's Parliamentary Register_, 233.

_Mr. Wilberforce._--"When he considered the case of the loyalists, he confessed he felt himself there conquered; there he saw his country humiliated; he saw her at the feet of America! Still he was induced to believe, that Congress would religiously comply with the article, and that the loyalists would obtain redress from America. Should they not, this country was bound to afford it them. They must be compensated. Ministers, he was persuaded, meant to keep the faith of the nation with them, and he verily believed, had obtained the best terms they possibly could for them."--_Ib._ 236.

_Mr. Secretary Townsend._--"He was ready to admit, that many of the loyalists had the strongest claims upon this country; and he trusted, should the _recommendation_ of Congress to the American States prove unsuccessful, which he flattered himself would not be the case, this country would feel itself bound in honor to make them full compensation for their losses."--_Ib._ 262.

House of Lords.--_February 17, 1783._

_Lord Shelburne._--"A part must be wounded, that the whole of the empire may not perish. If better terms could be had, think you, my lords, that I would not have embraced them? You all know my creed. You all know my steadiness. If it were possible to put aside the bitter cup the adversities of this country presented to me, you know I would have done it; but you called for peace. I had 'but the alternative, either to accept the terms (said Congress) of our recommendation to the States in favor of the colonists, or continue the war. It is in our power to do _no more than recommend_.' Is there any man who hears me, who will clap his hand on his heart, and step forward and say, I ought to have broken off the treaty? If there be, I am sure he neither knows the state of the country, nor yet has he paid any attention to the wishes of it. But say the worst, and that, after all, this estimable set of men are not received and cherished in the bosom of their own country--is England so lost to gratitude, and all the feelings of humanity, as not to afford them an asylum? Who can be so base as to think she will refuse it to them? Surely it cannot be that noble-minded man, who would plunge his country again knee deep in blood, and saddle it with an expense of twenty millions, for the purpose of restoring them. Without one drop of blood spilt, and without one-fifth of the expense of one year's campaign, happiness and ease can be given the loyalists in as ample a manner as these blessings were ever in their enjoyment; therefore, let the outcry cease on this head."--_Ib._ 70, 71.

_Lord Hawke._--"In America," said he, "Congress had engaged to recommend their [the loyalists'] cause to the Legislatures of the country. What other term could they adopt? He had searched the journals of Congress on this subject; what other term did they, or do they ever adopt in their requisitions to the different provinces? It is an undertaking on the part of Congress; that body, like the King here, is the executive power in America. Can the crown undertake for the two Houses of Parliament? It can only recommend. He flattered himself that recommendation would be attended with success; but, said he, state the case, that it will not, the liberality of Great Britain is still open to them. Ministers had pledged themselves to indemnify them; not only in the address now moved for, but even in the last address, and in the speech from the throne."

_Lord Walsingham._--"We had only the _recommendation_ of Congress to trust to, and how often had their recommendations been fruitless? There were many cases in point in which provincial assemblies had peremptorily refused the recommendations of Congress. It was but the other day the States refused money on the recommendations of Congress. Rhode Island unanimously refused, when the Congress desired to be authorized to lay a duty of five per cent. because the funds had failed. Many other circumstances might be produced of the failure of the recommendations of Congress, and therefore we ought not, in negotiating for the loyalists, to have trusted to the recommendations of Congress. Nothing but the _repeal_ of the acts existing against them ought to have sufficed, as nothing else could give effect to the treaty; _repeal_ was not mentioned. They had only stipulated to revise and reconsider them."--_11 Debrett's Parliamentary Reg. 44._

_Lord Sackville._--"The King's ministers had weakly imagined that the _recommendation_ of Congress was a sufficient security for these unhappy men. For his own part, so far from believing that this would be sufficient, or anything like sufficient, for their protection, he was of a direct contrary opinion; and if they entertained any notions of this sort, he would put an end to their idle hopes at once, by reading from a paper in his pocket, a resolution, which the assembly of Virginia had come to, so late as on the 17th of December last. The resolution was as follows: 'That all demands or requests of the British court for the restitution of property, confiscated by this State, being neither supported by law, equity, or policy, are wholly inadmissible; and that our delegates in Congress be instructed to move Congress, that they may direct their deputies, who shall represent these States in the general Congress, for adjusting a peace or truce, neither to agree to any such restitution, or submit that the laws made by any independent State in this Union, be subjected to the adjudication of any power or powers on earth.'"--_Ib._ _pages_ 62, 63.

Some of the speakers seem to have had not very accurate ideas of our government. All of them, however, have perfectly understood, that a _recommendation_ was a matter, not of obligation or coercion, but of persuasion and influence, merely. They appear to have entertained greater or less degrees of hope or doubt, as to its effect on the Legislatures, and though willing to see the result of this chance, yet, if it failed, they were prepared to take the work of indemnification on themselves.

Sec. 8. The agreement then being only that Congress should _recommend_ to the State Legislatures a restitution of estates, and liberty to remain a twelvemonth for the purpose of soliciting the restitution, and to recommend a revision of all acts regarding the premises, Congress did, immediately on the receipt of the definitive articles, to wit, on the 14th of January, 1784, come to the following resolution, viz: "Resolved unanimously, nine States being present, that it be, and it is hereby, earnestly recommended to the Legislatures of the respective States, to provide for the restitution of all estates, rights, and properties, which have been confiscated, belonging to real British subjects; and also, of the estates, rights, and properties, of persons resident in districts which were in the possession of his Britannic Majesty's arms, at any time between the 30th day of November, 1782, and the 14th day of January, 1784, and who have not borne arms against the said United States; and that persons of any other description shall have free liberty to go to any part or parts of any of the thirteen United States, and therein to remain twelve months, unmolested in their endeavors to obtain the restitution of such of their estates, rights, and properties, as may have been confiscated; and it is also hereby earnestly recommended to the several States, to reconsider and revise all their acts or laws regarding the premises, so as to render the said laws or acts perfectly consistent, not only with justice and equity, but with that spirit of conciliation which, on the return of the blessings of peace, should universally prevail; and it is hereby also earnestly recommended to the several States, that the estates, rights, and properties, of such last-mentioned persons should be restored to them, they refunding to any persons who may be now in possession, the _bona fide_ price (where any has been given) which such persons may have paid, on purchasing any of the said lands, rights or properties, since the confiscation.

"Ordered, That a copy of the proclamation of this date, together with the recommendation, be transmitted to the several States by the Secretary."

Sec. 9. The British negotiators had been told by ours, that all the States would refuse to comply with this recommendation; one only, however, refused altogether. The others complied in a greater or less degree, according to the circumstances and dispositions in which the events of the war had left them; but, had all of them refused, it would have been no violation of the 5th article, but an exercise of that freedom of will, which was reserved to them, and so understood by all parties.

The following are the acts of your catalogue which belong to this head, with such short observations as are necessary to explain them; beginning at that end of the Union, where, the war having raged most, we shall meet with the most repugnance to favor:

Sec. 10. _Georgia._--1783, July 29. An act releasing certain persons from their bargains. A law had been passed during the war, to wit, in 1782, [A. 30.] confiscating the estates of persons therein named, and directing them to be sold; they were sold; but some misunderstanding happened to prevail among the purchasers, as to the mode of payment. This act of 1783, therefore, permits such persons to relinquish their bargains, and authorizes a new sale; the lands remaining confiscated under the law made previous to the peace.

1785, Feb. 22. An act to authorize the auditor to liquidate the demands of such persons as have claims against the confiscated estates. In the same law of confiscations made during the war, it had been provided that the estates confiscated should be subject to pay the debts of their former owner. This law of 1785, gave authority to the auditor to settle with, and pay the creditors, and to sell the remaining part of the estate confiscated as before.

1787, Feb. 10. An act to compel the settlement of public accounts, for inflicting penalties, and vesting the auditor with certain powers. This law also is founded on the same confiscation law of 1782, requiring the auditor to press the settlement with the creditors, &c.

1785, Feb. 7. An act for ascertaining the rights of aliens, and pointing out the mode for the admission of citizens. It first describes what persons shall be free to become citizens, and then declares none shall be capable of that character who had been named in any confiscation law, or banished, or had borne arms against them. This act does not prohibit either the refugees, or real British subjects, from coming into the State to pursue their lawful affairs. It only excludes the former from the right of citizenship, and it is to be observed, that this recommendatory article does not say a word about giving them a right to become citizens. If the conduct of Georgia should appear to have been peculiarly uncomplying, it must be remembered that that State had peculiarly suffered; that the British army had entirely overrun it; had held possession of it for some years; and that all the inhabitants had been obliged either to abandon their estates and fly their country, or to remain in it under a military government.

Sec. 11. _South Carolina._--1783, August 15th. An act to vest 180 acres of land, late the property of James Holmes, in certain persons, in trust for the benefit of a public school. These lands had been confiscated and sold during the war. The present law prescribes certain proceedings as to the purchasers, and provides for paying the debts of the former proprietors.

1786, March 22. An act to amend the confiscation act, and for other purposes therein mentioned. This relates only to estates which had been confiscated before the peace. It makes some provision towards a final settlement, and relieves a number of persons from the amercements which had been imposed on them during the war, for the part they had taken.

1784, March 26. An act restoring to certain persons their estates, and permitting the said persons to return, and for other purposes. This act recites, that certain estates had been confiscated, and the owners, 124 in number, banished by former laws; that Congress had earnestly recommended in the terms of the treaty--it therefore distributes them into three lists or classes, restoring to all of them the lands themselves, where they remained unsold, and the price, where sold, requiring from those in lists No. 1, and 3, to pay 12 per cent. on the value of what was restored, and No. 2, nothing; and it permits all of them to return, only disqualifying those of No. 1 and 3, who had borne military commissions against them, from holding any office for seven years.

Governor Moultrie's letter of June 21, 1786, informs us, that most of the confiscations had been restored; that the value of those not restored, was far less than that of the property of their citizens carried off by the British, and that fifteen, instead of twelve months, had been allowed to the persons for whom permission was recommended to come and solicit restitution.

Sec. 12. _North Carolina._--1784, October. An act directing the sale of confiscated property.

1785, Dec. 29. An act to secure and quiet in their possessions, the purchasers of lands, goods, &c., sold, or to be sold by the commissioners of forfeited estates. These two acts relate expressly to property "heretofore confiscated," and secure purchasers under those former confiscations.

1790. The case of Bayard _v._ Singleton, adjudged in a court of judicature in North Carolina. Bayard was a purchaser of part of an estate confiscated during the war, and the court adjudged his title valid; and it is difficult to conceive on what principle that adjudication can be complained of, as an infraction of the treaty.

1785, Nov. 19. An act was passed to restore a confiscated estate to the former proprietor, Edward Bridgen.

1784, Oct. An act to describe and ascertain such persons as owed allegiance to the State, and impose certain disqualifications on certain persons therein named.

1785, Nov. An act to amend the preceding act.

1788, April. An act of pardon and oblivion. The two first of these acts exercised the right of the State to describe who should be its citizens, and who should be disqualified from holding offices. The last, entitled An act of pardon and oblivion, I have not been able to see; but, so far as it pardons, it is a compliance with the recommendation of Congress under the treaty, and so far as it excepts persons out of the pardon, it is a refusal to comply with the recommendation, which it had a right to do. It does not appear that there has been any obstruction to the return of those persons who had claims to prosecute.

Sec. 13. _Virginia._--The catalogue under examination, presents no act of this State subsequent to the treaty of peace, on the subject of confiscations. By one of October 18, 1784, they declared there should be no future confiscations. But they did not choose to comply with the recommendation of Congress, as to the restoration of property which had been already confiscated; with respect to persons, the first assembly which met after the peace, passed--

1783, October, The act prohibiting the migration of certain persons to this commonwealth, and for other purposes therein mentioned, which was afterwards amended by,

1786, October, An act to explain and amend the preceding. These acts, after declaring who shall not have a right to migrate to, or become citizens of, the State, have each an express proviso, that _nothing contained in them shall be so construed as to contravene the treaty of peace with Great Britain_; and a great number of the refugees having come into the State, under the protection of the first law, and it being understood that a party was forming in the State to ill-treat them, the Governor, July 26, 1784, published the proclamation, No. 14, enjoining all magistrates and other civil officers, to protect them, and secure to them the rights derived from the treaty, and acts of assembly aforesaid, and to bring to punishment all who should offend herein, in consequence of which, those persons remained quietly in the State; and many of them have remained to this day.

Sec. 14. _Maryland._--1785, Nov. An act to vest certain powers in the Governor and council. Sec. 3;

1788. Nov. An act to empower the Governor and council to compound with the discoveries of British property and for other purposes. These acts relate purely to property which had been confiscated during the war; and the State not choosing to restore it, as recommended by Congress, passed them for bringing to a conclusion the settlement of all transactions relative to the confiscated property.

I do not find any law of this State, which could prohibit the free return of their refugees, or the reception of the subjects of Great Britain, or of any other country. And I find that they passed, in

1786, Nov. An act to repeal that part of the act for the security of their government, which disqualified non-jurors from holding offices, and voting at elections.

1790. The ease of Harrison's representatives in the court of chancery of Maryland, is in the list of infractions. These representatives being British subjects, and the laws of this country, like those of England, not permitting aliens to hold lands, the question was, whether British subjects were aliens. They decided that they were; consequently, that they could not take lands; and consequently, also, that the lands in this case escheated to the State. Whereupon, the Legislature immediately interposed, and passed a special act, allowing the benefits of the succession to the representatives. But had they not relieved them, the case would not have come under the treaty; for there is no stipulation in that doing away the laws of alienage, and enabling the members of each nation to inherit or hold lands in the other.

Sec. 15. _Delaware._--This State, in the year 1778, passed an act of confiscation against forty-six citizens, by name, who had joined in arms against them, unless they should come in by a given day, and stand their trial. The estates of those who did not, were sold, and the whole business soon closed. They never passed any other act on the subject, either before or after the peace. There was no restitution, because there was nothing to restore, their debts having more than exhausted the proceeds of the sales of their property, as appears by Mr. Read's letter, and that all persons were permitted to return, and such as chose it, have remained there in quiet to this day.

Sec. 16. _Pennsylvania._--The catalogue furnishes no transaction of this State subsequent to the arrival of the treaty of peace, on the subject of confiscation, except 1790, August. An order of the executive council to sell part of Harry Gordon's real estate, under the act of January 31, 1783. This person had been summoned by proclamation, by the name of Henry Gordon, to appear before the first day of November, 1781, and failing, his estate was seized by the commissioners of forfeitures, and most of it sold. The act of 1783, January 31, cured the misnomer, and directed what remained of his estate to be sold. The confiscation being complete, it was for them to say whether they would restore it, in compliance with the recommendation of Congress. They did not, and the executive completed the sale, as they were bound to do. All persons were permitted to return to this State, and you see many of them living here to this day in quiet and esteem.

Sec. 17. _New Jersey._--The only act alleged against this State, as to the recommendatory article, is,

1783, December 23, An act to appropriate certain forfeited estates. This was the estate of John Zabriski, which had been forfeited during the war, and the act gives it to Major-General Baron Steuben, in reward for his services. The confiscation being complete, the Legislature were free to do this. Governor Livingston's letter is an additional testimony of the moderation of this State, after the proclamation of peace, and from that we have a right to conclude, that no persons were prevented from returning and remaining indefinitely.

Sec. 18. _New York._--This State had been among the first invaded; the greatest part of it had been possessed by the enemy through the war; it was the last evacuated; its inhabitants had in great numbers been driven off their farms; their property wasted, and themselves living in exile and penury, and reduced from affluence to want, it is not to be wondered at, if their sensations were among the most lively; accordingly, they, in the very first moment, gave a flat refusal to the recommendation, as to the restoration of property. See document No. 17, containing their reasons. They passed, however, 1784, May 12, the act to preserve the freedom and independence of this State, and for other purposes therein mentioned, in which, after disqualifying refugees from offices, they permit them to come, and remain as long as may be absolutely necessary to defend their estates.

Sec. 19. _Connecticut._--A single act only on the same subject is alleged against this State, after the treaty of peace. This was

1790, An act directing certain confiscated estates to be sold. The title shows they were old confiscations, not new ones, and Governor Huntington's letter informs us, that all confiscations and prosecutions were stopped on the peace; that some restorations of property took place, and all persons were free to return.

Sec. 20. _Rhode Island._--The titles of four acts of this State are cited in your Appendix, to wit:

1783, May 27, An act to send out of the State N. Spink and I. Underwood, who had formerly joined the enemy, and were returned to Rhode Island.

1783, June 8, An act to send William Young, theretofore banished out of the State, and forbidden to return at his peril.

1783, June 12, An act allowing William Brenton, late an absentee, to visit his family for one week, then sent away, not to return.

1783, October, An act to banish S. Knowles (whose estate had been forfeited), on pain of death if he return. Mr. Channing, the attorney of the United States for that district, says, in his letter, "he had sent me all the acts of that Legislature, that affect either the debts, or the persons of British subjects, or American refugees." The acts above cited are not among them. In the answer of April 6, which you were pleased to give to mine of March 30, desiring copies of these, among other papers, you say the book is no longer in your possession. These circumstances will, I hope, excuse my not answering or admitting these acts, and justify my proceeding to observe, that nothing is produced against this State on the subject, after the treaty; and the district attorney's letter, before cited, informs us, that their courts considered the treaty as paramount to the laws of the State, and decided accordingly, both as to persons and property, and that the estates of all British subjects, seized by the State, had been restored, and the rents and profits accounted for. Governor Collins' letter, No. 20, is a further evidence of the compliance of this State.

Sec. 21. _Massachusetts._--1784, March 24. This State passed an act for repealing two laws of this State, and for asserting the right of this free and sovereign commonwealth to expel such aliens as may be dangerous to the peace and good order of government, the effect of which was to reject the recommendation of Congress, as to the return of persons, but to restore to them such of their lands as were not confiscated, unless they were pledged for debt; and by--

1784, November 10, An act in addition to an act for repealing two laws of this State, they allowed them to redeem their lands pledged for debt, by paying the debt.

Sec. 22. _New Hampshire._--Against New Hampshire nothing is alleged; that State having not been invaded at all, was not induced to exercise any acts of right against the subjects or adherents of their enemies.

The acts, then, which have been complained of as violations of the 5th article, were such as the States were free to pass, notwithstanding the recommendation; such as it was well understood they would be free to pass without any imputation of infraction, and may therefore be put entirely out of question.

Sec. 23. And we may further observe, with respect to the same acts, that they have been considered as infractions not only of the 5th article, which recommended the restoration of the confiscations which _had taken place during the war_, but also of that part of the 6th article which forbade _future_ confiscations. But not one of them touched an estate which had not been before confiscated; for you will observe, that an act of the Legislature, confiscating lands, stands in place of _an office found_ in ordinary cases; and that, _on the passage of the act_, as _on the finding of the office_, the State stands, _ipso facto_, possessed of the lands, without a formal entry. The confiscation then is complete by the passage of the act. Both the title and possession being divested out of the former proprietor, and vested in the State, no subsequent proceedings relative to the lands are acts of confiscation, but are mere exercises of ownership, whether by levying profits, conveying for a time, by lease, or in perpetuo, by an absolute deed. I believe, therefore, it may be said with truth, that there was not a single confiscation made in any one of the United States, after notification of the treaty; and, consequently, it will not be necessary to notice again this part of the 6th article.

Sec. 24. Before quitting the recommendatory article, two passages in the letter are to be noted, which, applying to all the States in general, could not have been properly answered under any one of them in particular. In page 16 is the following passage: "The express provision in the treaty, for the restitution of the estates and properties of persons of both these descriptions [British subjects and Americans who had stayed within the British lines, but had not borne arms] certainly comprehended a virtual acquiescence in their right to reside where their property was situated, and to be restored to the privileges of citizenship." Here seems to be a double error, first in supposing an express provision, whereas the words of the article, and the collateral testimony adduced, have shown that the provision was neither _express_, nor meant to be so. And secondly, in inferring, from a restitution of the estate, a virtual acquiescence in the right of the party to reside where the estate is. Nothing is more frequent than for a sovereign to banish the person, and leave him possessed of his estate. The inference in the present case, too, is contradicted, as to the _refugees_, by the recommendation to permit their residence twelve months; and as to British subjects, by the silence of the article, and the improbability that the British plenipotentiary meant to stipulate a right for British subjects to emigrate and become members of another community.

Sec. 25. Again, in page 34, it is said, "The nation of Great Britain has been involved in the payment to them of no less a sum than four millions sterling, as a partial compensation for the losses they had sustained." It has been before proved, that Mr. Oswald understood perfectly, that no indemnification was claimable from us; that, on the contrary, we had a counter claim of indemnification to much larger amount. It has been supposed, and not without grounds, that the glimmering of hope, provided by the recommendatory article, was to quiet, for the present, the clamors of the sufferers, and to keep their weight out of the scale of opposition to the peace, trusting to time and events for an oblivion of these claims, or a gradual ripening of the public mind to meet and satisfy them at a moment of less embarrassment: the latter is the turn which the thing took. The claimants continued their importunities, and the Government determined at length to indemnify them for their losses; and, open-handedly as they went to work, it cost them less than to have settled with us the just account of mutual indemnification urged by our commissioners. It may be well doubted, whether there were not single States of our Union to which the four millions you have paid would have been no indemnification for the losses of property sustained contrary even to the laws of war; and what sum would have indemnified the whole thirteen, and, consequently, to what sum our whole losses of this description have amounted, would be difficult to say. However, though in nowise interested in the sums you thought proper to give to the refugees, we could not be inattentive to the measure in which they were dealt out. Those who were on the spot, and who knew intimately the state of affairs with the individuals of this description, who knew that their debts often exceeded their possessions, insomuch that the most faithful administration made them pay but a few shillings in the pound, heard with wonder of the sums given, and could not but conclude, that those largesses were meant for something more than loss of property--that services and other circumstances must have had great influence. The sum paid is therefore no imputation on us. We have borne our own losses. We have even lessened yours, by numerous restitutions, where circumstances admitted them; and we have much the worst of the bargain by the alternative you choose to accept, of indemnifying your own sufferers, rather than ours.

Sec. 26. II. The article of debts is next in order; but to place on their true grounds our proceedings relative to them, it will be necessary to take a view of the British proceedings, which are the subject of complaint in my letter of December 15.

In the 7th article, it was stipulated, that his Britannic Majesty should withdraw his armies, garrisons, and fleets, without carrying away any negroes, or other property of the American inhabitants. This stipulation was known to the British commanding officers, before the 19th of March, 1783, as _provisionally_ agreed; and on the 5th of April they received official notice from their court of the conclusion and ratification of the preliminary articles between France, Spain, and Great Britain, which gave activity to ours, as appears by the letter of Sir Guy Carleton to General Washington, dated April 6, 1783. Document No. 21. From this time, then, surely, no negroes could be carried away without a violation of the treaty. Yet we find that, so early as May 6, a _large_ number of them had already been embarked for Nova Scotia, of which, as contrary to an express stipulation in the treaty, General Washington declared to him his sense and surprise. In the letter of Sir Guy Carleton of May 12 (annexed to mine to you of the 15th of December), he admits the fact; palliates it by saying he had no right to deprive the negroes of that liberty he found them _possessed_ of; that it was unfriendly to suppose that the King's minister could stipulate to be guilty of a notorious breach of the public faith towards the negroes; and that, _if it was his intention, it must be adjusted by compensation_, restoration being utterly impracticable, where inseparable from a breach of public faith. But surely, sir, an officer of the King is not to question the validity of the King's engagements, nor violate his solemn treaties, on his own scruples about the public faith. Under this pretext, however, General Carleton went on in daily infractions, embarking, from time to time, between his notice of the treaty and the 5th of April, and the evacuation of New York, November 25, 3,000 negroes, of whom our commissioners had inspection, and a very large number more, in public and private vessels, of whom they were not permitted to have inspection. Here, then, was a direct, unequivocal and avowed violation of this part of the 7th article, in the first moments of its being known; an article which had been of extreme solicitude on our part, on the fulfilment of which depended the means of paying debts, in proportion to the number of laborers withdrawn; and when, in the very act of violation, we warn, and put the commanding officer on his guard, he says, directly, he will go through with the act, and leave it to his court to adjust it by compensation.

Sec. 27. By the same article, his Britannic Majesty stipulates, that he will, _with all convenient speed_, withdraw his garrisons from _every_ post within the United States. "When no precise term," says a writer on the Law of Nations [Vattel, 1. 4. c. 26.], "has been marked for the accomplishment of a treaty, and for the execution of each of its articles, good sense determines that every point should be executed _as soon as possible_. This is, without doubt, what was understood."[11] The term in the treaty, _with all convenient speed_, amounts to the same thing, and clearly excludes all unnecessary delay. The general pacification being signed on the 20th of January, some time would be requisite for the orders for evacuation to come over to America, for the removal of stores, property, and persons, and finally for the act of evacuation. The larger the post, the longer the time necessary to remove all its contents; the smaller, the sooner done. Hence, though General Carleton received his orders to evacuate New York in the month of April, the evacuation was not completed till late in November. It had been the principal place of arms and stores; the seat, as it were, of their general government, and the asylum of those who had fled to them. A great quantity of shipping was necessary, therefore, for the removal, and the General was obliged to call for a part from foreign countries. These causes of delay were duly respected on our part. But the posts of Michillimackinac,[12] Detroit, Niagara, Oswego, Oswegatchie, Point-au-Fer, Dutchman's Point, were not of this magnitude. The orders for evacuation, which reached General Carleton, in New York, early in April, might have gone, in one month more, to the most remote of these posts. Some of them might have been evacuated in a few days after, and the largest in a few weeks. Certainly they might all have been delivered, without any _inconvenient speed_ in the operations, by the end of May, from the known facility furnished by the lakes, and the water connecting them; or by crossing immediately over into their own territory, and availing themselves of the season for making new establishments there, if that was intended. Or whatever time might, in event, have been necessary for their evacuation, certainly the order for it should have been given from England, and might have been given as early as that from New York. Was any order ever given? Would not an _unnecessary delay_ of the order, producing an equal delay in the evacuation, be an infraction of the treaty? Let us investigate this matter.

On the 3d of August, 1783, Major-General Baron Steuben, by orders from General Washington, having repaired to Canada for this purpose, wrote the letter No. 22 to General Haldimand, Governor of the province, and received from him the answer of August 13, No. 23. Wherein he says, "The orders I have received, direct a discontinuance of every hostile measure _only_," &c. And in his conference with Baron Steuben, he says expressly, "That he _had not received any orders_ for making the least arrangements for the evacuation of a single post." The orders, then, which might have been with him by the last of April, were unknown, if they existed, the middle of August. See Baron Steuben's letter, No. 24.

Again, on the 19th of March, 1784, Governor Clinton, of New York, within the limits of which State some of these posts are, writes to General Haldimand, the letter No. 25; and that General, answering him, May 10, from Quebec, says, "Not having had the honor _to receive orders_ and instructions relative to withdrawing the garrisons," &c.; fourteen months were now elapsed, and the _orders not yet received_, which might have been received in four.