"Art. 6. That there fhall be no future confifca"tions made, nor any profecutions commenced "against any person or perfons for or by reafon of "the part which he or they may have taken in the "prefent war; and that no perfon fhall on that ac"count fuffer any future lofs or damage, either in "his perfon, liberty, or property; and that thofe "who may be in confinement on fuch charges, at "the time of the ratification of the treaty in Ame"rica, fhall be immediately fet at liberty, and the "profecutions fo commenced be difcontinued."

On the part of the British Government, the ftipulation of the fourth article was extremely unwife. That Government muft have known nothing at all of the powers of the Congrefs, or of the difpofition of the State Governments, if it did not anticipate the manifold evils that have refulted from this fiipulation. But how could the British Government imagine that the Congrefs had authority to engage pofitively in one article, and only conditionally in another? Several of the States had interpofed "lawful impediments" to the recovery of debts contracted before the war, with the loyal fubjects of his Majefty. This was well known, and it ought alfo to have been known, that the Congrefs had no power to remove those impediments, any more than it had to remove the impediments to the recovery of real property. The truth is, that this. ftipulation was occafioned by the just remonftrances of the British merchants, whofe iniquitous debtors had, under the fanction of the no lets iniquitous State laws, withheld payment, and who had extorted from LORD. SHELBURNE a promife, that this payment fhould be pofitively provided for by the treaty. But one might have expected to find, in a Statefman, in a Prime Minister of Great Britain, fagacity enough to perceive, that the fulfilment of fuch a promife was to lay the foundation for endless difputes and animofity.

This one ftipulation has done more injury to the political interests of Great Britain, with regard to America, than all the other caufes of mifunderftanding put together. It was, and yet is (in 1801), the apple of difcord between the two countries, and fuch it will remain till fome minifter fhall have the good fenfe and refolution to put an end to its effects by a clear, fair, and final fettlement. The British credi-" tors fhould be paid; but, for the fake of two millions fterling, Great Britain and the United States of Amnerica fhould not be kept in a state of continual difagreement and hatred *.

The Congress iffued its recommendations, which were obferved, or not obferved, juft as the refpective States found their intereft in the obfervance, or in the non-obfervance. In the State of New-York, for inftance, it was not without great difficulty that the Legislature was prevented from fetting afide every ftipulation in favour of Great Britain. Acts

* It is notorious, that one of the principal objects of the inftigators of, and leading actors in, the rebellion, was to wipe off the debts which they owed to the mother-country. How foolish was it, then, to fuppofe that they would pay thofe debts, after they had fucceeded in that rebellion! The treaty, like most of our other treaties, exhibits a strange mixture of meannefs and prodigality with one hand we extort a promiffory note for a couple of millions, and with the other we throw away thirteen populous and flourishing Colonies. In the treaty of 1791, inftead of recovering this falfe step, we have gone a step further in folly. Still hankering after the two paltry millions, we have revived the old fcore, and, along with it, all the animofity of the rebel war; we have made those our decided enemies, who would have been neutral, at least, with refpect to us; we have foftered every prejudice against England, and every difpofition favourable to France. When the treaty of 1794 arrived in America, men of fenfe lifted their hands and eyes at our folly. A member of Congrefs, fpeaking to me of the 6th article, faid, that, if Robespierre had had to dictate, he could not have dic tated any thing better calculated to ferve the caufe of France. See in vol. xii. an account of the proceedings of the Board of CommifLioners.

were

ons for whofe

... Lad made fuch a pamphlet of

der the name of pole and against the weares of the Whigs, of the conduct and le perfecutors of loy

y in the way, the Leave attainted particular mes committed during the treaty it could not, v, disfranchise or punish by general defcriptions, en of offences known by d, declaring the offence,

eware of bad counsellors.

men may rise in confeir private interefts by fuch vole at large are fure to be the Denever they suffer a departure oral and equal juftice, or from Seniverfal liberty.

sot only overleap the barriers of the Soet remorse, but they advife us to eco nations, by violating the folemn United States. They endeavour aty with Great Britain, into fuch em, and to make it mean any thing its their views.-They tell us, that ons with refpect to the Tories are Congrets will recommend, and the States , or not, as they please.

...try man of fenfe and candour read the ata, & will peak for itfelf. The fifth article

is

is indeed recommendatory; but the fixth is as pofitive as words can make it: "There shall be no future "confifcations made, nor profecutions commenced against any perfon or perfons, for or by reafon of "the part which he or they may have taken in the prefent war, and no perfon fhall on that account: "fuffer any future lofs or damage, either in his per"fon, liberty, or property."

"As to the reftoration of confifcated property, which is the fubject of the fifth article, the States may reftore, or not, as they think proper, because Congress engage only to recommend ; but there is not a word about recommendation in the fixth article.

"The found and ingenuous conftruction of the two articles taken collectively, is this: that where the property of any perfons, other than those who have been in arms against the United States, had been actually confiscated, and themselves profcribed, there Congrefs are to recommend a restoration of eftates, rights, and properties; and with refpect to thofe who had been in arms, they are to recommend permiffion for them to remain a twelvemonth in the country, to folicit a like restoration: but with refpect to all those who were not in this fituation, and who had not already been the objects of confifcation and banifhment, they were to be abfolutely fecured from all future injury to perfon, liberty, or property.

"To fay that this exemption from pofitive injury, does not imply a right to live among us as citizens, is a pitiful fophiftry: it is to say that the banishment of a perfon from his country, connexions, and refources (one of the greatest punishments that can befall a man), is no punishment at all.

"The meaning of the word liberty has been contefted. Its true fenfe must be the enjoyment of the common privileges of fubjects under the fame Government. There is no middle line of juft conftruction between this fenfe and a mere exemption from

I

perfonal

perfonal imprisonment! If the laft were adopted, the ftipulation would become nugatory; and, by depriving those who are the fubjects of it of the protection of Government, it would amount to a virtual confifcation and banishment; for they could not have the benefit of the laws against those who should be aggreffors.

Should it be faid that they may receive protection without being admitted to a full enjoyment of the privileges of citizens; this must be either a matter of right under the treaty, or matter of grace in the Government. If the latter, the Government may refufe it, and then the objection prefents itself, that the treaty would by this conftruction be virtually defeated; if matter of right, then it follows that more is intended by the word liberty, than a mere exemption from imprisonment, and where fhall the line be drawn-not a capricious and arbitrary line, but onc warranted by rational and legal construction ?

"There is a very fimple and conclufive point of view in which this fubject may be placed. No citizen can be deprived of any right which the citizens in general are entitled to, unless forfeited by fome offence. It has been seen that the regular and conftitutional mode of afcertaining whether this forfeiture has been incurred, is by legal procefs, trial, and conviction. This ex vi termini fuppofes profecution. Now, confiftent with the treaty, there can be no future profecution for any thing done on account of the war. Can we then do by act of Legislature, what the treaty difables us from doing by due courfe of law? This would be to imitate the Roman General, who having promifed Antiochus to restore half his veffels, caused them to be fawed in two before their delivery; or the Platææ, who having promised the Thebans to restore their prifoners, had them first put to death, and returned them dead.

"Such