them by the treaty, will be seen by the words of the v. article, which are as follows.

S. 4. Article 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 any of the thirteen United States, and therein to remain twelve months unmolested in their endeavours 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.

"Article vi. That there shall be no future confiscations made."

S. 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

1

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 publick, 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 this 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.

S. 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 conferences, 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 2ndly, That it was beyond the powers of the commissioners 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 legislatures would 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 clamours 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.

S. 7. The same was perfectly understood by the British ministry, and by the members of both Houses of Parliament, as well those who advocated as those who opposed

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 opinion of the speakers.

House of Commons.

The preliminary articles under consideration: 1783, Feb. 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 Parl. 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 honour 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 favour 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 any 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 to 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