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

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.

Again, on the 12th of July, Colonel Hull, by order from General Knox, the Secretary of War, writes to General Haldimand, the letter No. 27; and General Haldimand gives the answer of the 13th, No. 28, wherein he says, "Though I am now informed, by his Majesty's ministers, of the ratification, &c., I remain, &c., not having received any orders to evacuate the posts which are without the limits," &c. And this is eighteen months after the signature of the general pacification! Now, is it not fair to conclude, if the order was not arrived on the 13th of August, 1783, if it was not arrived on the 10th of May, 1784, nor yet on the 13th of July, in the same year, that, in truth, the order had never been given? and if it had never been given, may we not conclude that it never had been intended to be given? From what moment is it we are to date this infraction? From that, at which, with convenient speed, the order to evacuate the upper posts might have been given. No legitimate reason can be assigned, why that order might not have been given as early, and at the same time, as the order to evacuate New York; and all delay, after this, was in contravention of the treaty.

Sec. 28. Was this delay merely innocent and unimportant to us, setting aside all considerations but of interest and safety? 1. It cut us off from the fur-trade, which before the war had been always of great importance as a branch of commerce, and as a source of remittance for the payment of our debts to Great Britain; for the injury of withholding our posts, they added the obstruction of all passage along the lakes and their communications. 2. It secluded us from connection with the northwestern Indians, from all opportunity of keeping up with them friendly and neighborly intercourse, brought on us consequently, from their known dispositions, constant and expensive war, in which numbers of men, women, and children, have been, and still are, daily falling victims to the scalping knife, and to which there will be no period, but in our possession of the posts which command their country.