Томас Джефферсон
The Writings of Thomas Jefferson, Vol. 3 (of 9)
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.
