Part 304

It therefore appears clear that negroes, horses, and other property, were, by this article, placed upon the same footing, and that it was as much a violation of the Treaty to carry away a horse as a negro.

He next proceeded to inquire what was the situation of this property, and in whom, according to the law of nations, it was vested at the time of executing the Treaty? This point, he said, Mr. JEFFERSON had fully settled to his hand, and read out of his collection the following extracts:

"We now come together (says Mr. Jefferson) to consider that instrument which was to heal our wounds, and begin a new chapter in our history. The state in which they found things is to be considered as rightful; so says the Law of Nations.--Vattel. The state in which things are found at the moment of the Treaty, should be considered as lawful, and if it is meant to make any change in it, the Treaty must expressly mention it. Consequently, all things about which the Treaty is silent, must remain in the state in which they are found at its conclusion.--Bynk. Since it is a condition of war that enemies may be deprived of all their rights, it is reasonable that every thing of an enemy's, found among his enemies, should change its owners, and go to the Treasury. It is moreover usually directed, in all declarations of war, that the goods of enemies, as well those found among us as those taken in war, shall be confiscated."

These authorities, he said, clearly proved that all negroes and other property which in the course of the war had been taken, or in any way had fallen into the hands of the British, had shifted their owner, and were no longer the property of the American inhabitants. In the case of negroes, the British Commander-in-Chief had exercised the highest act of ownership, by manumitting such of them as should conform to certain stipulations, pointed out in his proclamation. If any change was intended to have been made by the Treaty in the circumstances of these negroes, and it had been intended they should be again returned into bondage, there would have been some express stipulation to that effect in the Treaty. The words are, "and without causing any destruction, or carrying away any negroes or other property of the American inhabitants, withdraw all his armies," &c. There is nothing that indicates the least intention that this article should have a retrospective operation. It can only relate to property then belonging to the American inhabitants. Wherever any article was intended to have a retrospective operation, some expression is used that clearly shows such intention. In this same article, speaking of delivering up records, deeds, &c., these words are added, "which in the course of the war may have fallen into the hands of his officers," &c. In the 4th article, "debts heretofore contracted." Any other construction would have required the restoration of vessels which had been taken from the Americans, and were then in New York, under the term "other property," as well as negroes and horses. If any negroes or other property, in the possession of the American inhabitants at or after signing the preliminary articles, were carried off, it was no doubt a violation of the Treaty, but he had not understood that they refused to deliver up property of that description, or that such property was carried off to any great amount.

But this matter does not rest only on there being no words in the Treaty which can be construed to have a retrospective operation, but it is fairly to be inferred from the papers contained in this same collection of Mr. JEFFERSON, that it was so understood by the negotiators; for, in the course of that negotiation; it appears to have been a primary object with the British Minister to obtain restitution of the Tory estates, or compensation for them. They almost made a sine qua non, and a refusal to comply had well-nigh broken off the negotiation; and to induce the British Minister to relinquish that article, our commissioners brought in a claim for negroes and other property which had been taken, and towns and villages which had been destroyed during the war. He here read the following letter from Mr. Oswald, the British Minister, to our commissioners, viz:

"You may remember, that from the very beginning of our negotiation for settling a peace between Great Britain and America, I insisted that you should positively stipulate for the restoration of the property of all those under the denomination of Loyalists or Refugees, who have taken part with Great Britain in the present war; or if the property had been resold, and passed into such variety of hands as to render the restoration impracticable, (which you assert to be the case in many instances,) you should stipulate for a compensation or indemnification to those persons adequate to their losses. To those propositions, you said, you could not accede. Mr. Stachey, since his arrival at Paris, has most strenuously joined me in insisting upon the said restitution, compensation, or indemnification, and in laying before you every argument in favor of the demands, founded on national honor, and upon the true principles of justice. Those demands you must have understood to extend, not only to all persons of the above-mentioned description who have fled to Europe, but likewise to all those who may now be in any part of North America, dwelling under the protection of His Majesty's arm, or otherwise. We have also insisted on a mutual stipulation for a general amnesty on both sides, comprehending thereby an enlargement of all persons who, on account of offences committed, or supposed to be committed, since the commencement of hostilities, may now be in confinement, and for an immediate repossession of their properties and peaceable enjoyment thereof, under the Government of the United States. To this you have not given a particular and direct answer. It is, however, incumbent on me, as Commissioner of the King of Great Britain, to repeat the several demands, and without going over those arguments upon paper, which we have so often urged in conversation, to press your immediate attention to these subjects, and to urge you to enter into proper stipulations for their restitution, compensation, and amnesty, before we proceed further in this negotiation."

To which our commissioners returned the following answer:

"In answer to the letter you did us the honor to write on the 4th instant, we beg leave to repeat what we often said in conversation, viz: that the restoration of such of the estates of the refugees as have been confiscated, is impracticable, because they were confiscated by laws of particular States, and in many instances have passed by legal titles through several hands. Besides, sir, as this is a matter evidently appertaining to the internal policy of the separate States, the Congress, by the nature of our constitution, have no authority to interfere with it. As to your demand of compensation to those persons, we forbear enumerating our reasons for thinking it ill-founded. In the moment of conciliatory overtures, it would not be proper to call certain scenes into view, over which a variety of considerations should induce both parties at present to draw a veil. Permit us, therefore, only to repeat, that we cannot stipulate for such compensation, unless on your part it be agreed to make restitution to our citizens for the heavy losses they have sustained by the unnecessary destruction of private property. We have already agreed to an amnesty more extensive than justice required, and full as extensive as humanity would demand; we can therefore, only repeat, that it cannot be extended further. We should be sorry, if the absolute impossibility of our complying further with your propositions, should induce Great Britain to continue the war, for the sake of those who caused and prolonged it; but, if that should be the case, we hope that the utmost latitude will not be again given to its rigors. Whatever may be the issue of this negotiation, be assured, sir, that we shall always acknowledge the liberal, manly, and candid manner, in which you have conducted it."

In consequence of information from our commissioners that the claim was made and pertinaciously insisted on by the British Minister, Congress passed the following resolutions, viz:

"Resolved, That the Secretary for Foreign Affairs be, and he is hereby, directed to obtain, as speedily as possible, authentic returns of the slaves and other property which have been carried off or destroyed in the course of the war by the enemy, and to transmit the same to the Ministers Plenipotentiary for negotiating peace.

"Resolved, That, in the mean time, the Secretary for Foreign Affairs inform the said Minister, that many thousands of slaves, and other property to a very great amount, have been carried off or destroyed by the enemy, and that, in the opinion of Congress, the great loss of property which the citizens of the United States have sustained by the enemy, will be considered by the several States as an insuperable bar to their making restitution or indemnification to the former owners of property which has been or may be forfeited to, or confiscated by, any of the States."

Dr. FRANKLIN, in a letter to the British Minister, says:

"I must repeat my opinion, that it is best for you to drop all mention of the refugees. We have proposed, indeed, nothing but what we think best for you as well as ourselves. But if you will have them mentioned, let it be in an article which may provide that they shall exhibit accounts of their losses to commissioners hereafter to be appointed, who shall examine the same, together with the accounts now preparing in America of the damages done by them, and state the account; and that if a balance appears in their favor, it shall be paid by us to you, and by you divided among them, as you shall think proper. And if the balance is found due to us, it shall be paid by you. Give me leave, however, to advise you to prevent so dreadful a discussion, by dropping the article, that we may write to America and stop the inquiry."

The following article was accordingly drawn up and proposed to be inserted in the Treaty, viz:

"It is agreed that His Britannic Majesty will earnestly recommend it to his Parliament to provide for and make compensation to the merchants and shopkeepers of Boston, whose goods and merchandise were seized and taken out of the stores, warehouses, and shops, by order of General Gage, and others of his commanders or officers there; and also the inhabitants of Philadelphia, for the goods taken away by his army there; and to make compensation also for the tobacco, rice, indigo, negroes, &c., seized and carried off by his armies under Generals Arnold, Cornwallis, and others, from the States of Virginia, North and South Carolina, and Georgia: And also for all vessels and cargoes belonging to the inhabitants of the said United States, which were stopped, seized, or taken, either in the ports or on the seas, by his Governors, or by his ships of war, before the declaration of war against the said States. And it is further agreed that His Britannic Majesty will also earnestly recommend it to his Parliament to make compensation for all the towns, villages, and farms, burnt and destroyed by his troops or adherents in the said United States."

After pressing the matter to the utmost extent, we find, by Mr. ADAMS's journal, that on the evening previous to signing the Treaty, Ministers on both sides came to the following result:

"Upon this I recounted the history of Gen. Gage's agreement with the inhabitants of Boston, that they should remove their effects, upon condition that they would surrender their arms; but as soon as the arms were secured, the goods were forbid to be carried out, and were finally carried off in large quantities to Halifax. Dr. Franklin mentioned the case of Philadelphia, and the carrying off effects there, even his own library. Mr. Jay mentioned several other things; and Mr. Laurens added the plunder in Carolina, of negroes, plate, &c. After hearing all this, Mr. Fitzherbert, Mr. Oswald, and Mr. Stachey, retired for some time, and returning Mr. Fitzherbert said, that upon consulting together, and weighing every thing as maturely as possible, Mr. Stachey and himself had determined to advise Mr. Oswald to strike with us according to the terms we had proposed, as to our ultimatum respecting the fishery, and the loyalists. Accordingly we all sat down, read over the whole Treaty and corrected it, and agreed to meet to-morrow at O.'s house, to sign and seal the Treaties."

Will any candid man say, after reviewing these circumstances, that the 7th article was meant to secure the restitution of negroes and other property taken in the course of the war? If that had been meant, would it not have been improper to have urged it as an argument against the introduction of an article which would have subjected this country to immense embarrassment and expense?

It is true that the United States did challenge negroes and other property, which had fallen into the hands of the British previous to signing the Treaty. This circumstance, for the reason he had mentioned, and others that might be suggested, ought to have very little weight, for it is well known that recrimination of a violation of the Treaty soon commenced on both sides, and each mustered up every tolerable claim; many of which have since been admitted on both sides to be groundless. A circumstance which strongly corroborated what he said was, Sir Guy Carlton's letter on that subject had also been so grossly misunderstood and misrepresented, from that time to this, and now advanced by a gentleman on this floor, (Mr. GILES,) and even by Mr. JEFFERSON--in this instance departing from that candor which is so conspicuous in almost every other part of this excellent performance--for, when speaking on this subject, he says, "here there was a direct, unequivocal, and avowed violation of this part of the 7th article, in the first moment of its being known." Mr. JEFFERSON has given us a copy of Sir Guy Carlton's letter to General WASHINGTON, which is relied on to support this assertion, which is so far from speaking such a language, that in his opinion, it was directly the reverse, and that in a very pointed manner. His words are:

"I must confess, that the mere supposition that the King's Minister could deliberately stipulate in a Treaty an engagement to be guilty of a notorious breach of the public faith towards people of any complexion, seems to denote a less friendly disposition than I could wish, and I think less friendly than we might expect. After all, I only give my own opinion. Every negro's name is registered, the master he formerly belonged to, with such other circumstances as serve to denote his value, that it may be adjusted by compensation, if that was really the intention and meaning of the Treaty. Restoration was inseparable from a breach of public faith, and is, as I think all the world must allow, utterly impracticable."

Gen. WASHINGTON, at that time, seemed disinclined to give an opinion on that subject, but intimated the propriety of leaving any doubtful clause of the Treaty to be settled by future negotiation; for in a letter from him to our commissioners in New York, dated June, 1783, who had written to him for particular and pointed instructions on this very subject, there is this passage:

"It is exceeding difficult for me, not being a witness to the particular cases, or acquainted with the particular circumstances which must fall under your view in the course of the evacuation, to give you a precise definition of the acts which you are to represent as infractions of the Treaty; nor can I undertake to give an official construction of any particular expression or terms of the Treaty, which must, in cases of ambiguity or different interpretations, be explained by the Sovereignties of the two nations, or their commissioners appointed for that purpose."

A letter drawn up with great caution and extremely characteristic of that great man, who has always been extremely careful never to commit himself, but upon mature deliberation and upon sure ground. Here, Sir Guy Carlton, as a public officer of Great Britain, had made an explicit declaration on the subject, and that was directly against our claims; for his directing an inventory of the negroes, was only an evidence of his being disposed to conduct candidly in the matter, and give us an opportunity to recover a compensation, if we could afterwards make out our construction of the Treaty to be right.

Both in the United States and Great Britain it is admitted, as a sound rule of construction, that where any law or instrument is doubtful, and the liberty of any one, even of a slave, to be affected by it, that construction was to be preferred which was favorable to liberty. Under this rule, ought this Treaty to be so construed as to reduce to slavery three thousand persons who had obtained their liberty, by putting themselves under the protection of the British arms, unless there was some positive unequivocal stipulation in the Treaty which could admit of no other construction, he hoped, for the honor of America, they would make no such challenge. There was another circumstance which he had never seen mentioned, which, in his opinion, greatly weakened our claims, which was the doubts he entertained of our right to demand of a foreign nation the restitution of a runaway slave. The United States are now at peace with all the world; suppose a slave should escape into the dominions of a foreign nation, and on demand they should refuse to deliver him up? he very much doubted whether we should have just ground of complaint. On the other hand, if any of our citizens may be so unfortunate as to be reduced to slavery by any of the Barbary powers in Africa, should make their escape into the dominions of any of the European nations, and upon being claimed by such powers, should be delivered up, he did believe we should have good ground of complaint against such nation, as being unjust and inhumane. And, so far as principle is concerned, what difference does it make whether the citizens of the United States are carried into slavery in Africa, or the inhabitants of Africa are brought into slavery in the United States? He knew of no principle that made a difference between the natural rights of a white or black man. The first principle that is laid down in the rights of man, is, that all men are born free and equal; it does not say all white men. He did not believe, he said, that the House would ever admit so absurd a doctrine, as that the different shades in a man's complexion would increase or diminish his natural rights. He hoped no gentleman would take any exception to what he had said on this point; he did not mean to give offence, or to throw any reflection on any part of the Union, on account of their having a larger proportion of slaves. It was an evil which existed at the commencement of our Revolution, and he trusted every part of the Union would get rid of the evil as soon as it should be practicable and safe. What he had said, was only what he felt himself bound to do in justification of our Minister for his having given up that claim.

Mr. HILLHOUSE requested gentlemen to pause a moment, and reflect what will be our situation if this Treaty is rejected. The peace of 1783 is agreed on both sides to have been infracted, since that Great Britain has committed depredations on our commerce to an immense amount. Is it supposed that all this matter can go off without any noise or combustion? As to treating again, no one can suppose that we could do it to any advantage, after such rejection. What may Great Britain expect, if we will not settle our differences by negotiation? Will she not expect that we shall resort to more violent measures--such as reprisal, sequestration, or stopping of intercourse? And to guard herself against such measures, may we not expect she will lay her hand upon all our property on the ocean? He said he looked upon such events as the natural consequences of our rejecting the Treaty. What may we expect will be the conduct of our own citizens? Will they tamely submit to be robbed of their property, when they lose all hope of aid or protection from the Government? They will not; they will defend it even to the shedding of blood; and not only so, but they will also take every opportunity they have to make reprisal for the property they have already lost upon those who did them the injury, whether they belong to one nation or another. What, he asked, could be the end of all these things but war?

WEDNESDAY, April 20.

Treaty with Great Britain.

The House then resolved itself into a Committee of the Whole on the state of the Union, and the resolution for carrying the British Treaty into effect, being under consideration,