On the part of England, it was of great consequence to secure to British subjects the property, and rights of property, of the enjoyment of which the state of hostilities had deprived them. A war between colonies and the parent state, which had sundered the closest intimacies of social and commercial intercourse, involved of necessity vast private interests. There were two large classes of English creditors, whose interests required protection; the British merchants to whom debts had been contracted before the Revolution, and the Tories, who had been obliged to depart from the United States, leaving debts due to them, and landed property, which had been seized. Clear and explicit stipulations were inserted in the Treaty, in order to protect these interests. It was provided that creditors on either side should meet with no lawful impediments to the recovery of the full value in sterling money of all bona fide debts contracted before the date of the Treaty.1 It was also agreed, that Congress should earnestly recommend to the legislatures of the respective States to provide for the restitution of all estates, rights, and properties, which had been confiscated, belonging to real British subjects, and to persons resident in districts in the possession of his Majesty's arms, and who had not borne arms against the United States; that persons of any other description should have free liberty to go into any of the States, and remain for the period of twelve months unmolested

1 Article IV.

in their endeavors to obtain the restitution of their property and rights which had been confiscated; that Congress should recommend to the States a reconsideration and revision of all their confiscation laws, and a restoration of the rights and property of the last-mentioned persons, on their refunding the bona fide price which any purchaser might have given for them since the confiscation. It was also agreed, that all persons having any interest in confiscated lands, either by debts, marriage settlements, or otherwise, should meet with no lawful impediment in the prosecution of their just rights.1

It was further provided, that there should be no future confiscations made, nor any prosecutions commenced against any person on account of the part he might have taken in the war, and that no person should, on that account, suffer any future loss or damage, either in person, liberty, or property, and that those who might be in confinement on such charges, at the time of the ratification of the Treaty in America, should be immediately set at liberty, and the prosecutions be discontinued.2

These provisions related to a great subject, with which, in the existing political system of this country, it was difficult to deal. The action of the States, with regard to some of the interests involved in these stipulations, had been irregular from an early period of the war. The Revolutionary Congress, on the commencement of hostilities, had suffered the oppor

1 Article V.

2 Article VI.

tunity of asserting their rightful control over the subject of alien interests, except as to property found on the high seas, to pass away; and the consequence was, that the States had, on some points, usurped an authority which belonged to the Union. A Union, founded in compact, and vesting the rights of war and peace in Congress, was formed in 1775; and from that time the Colonies, or, as they afterwards became, States, were never rightfully capable of passing laws to sequester or confiscate the debts or property of a national enemy.1 After the great acts of national sovereignty which took place in 1775 – 6, a British subject could not, with any propriety, be considered as the enemy of Massachusetts, or of Virginia; he was the enemy of the United States, and by that authority alone, as the belligerent, was his property, in strictness, liable to be seized, or the debts due to him sequestered. But neither the Revolutionary Congress, nor that of the Confederation, appear to have ever exercised the power of confiscating the debts or property of British subjects, within the States, or to have recommended such confiscation to the States themselves.2 On the other hand, they did not interfere when the States saw fit to do it.

With regard to those inhabitants of the States who, adhering to the British crown, had abandoned the country, and left property behind them, it cannot so clearly be affirmed that the States should not have

See the Report made to Con- tober, 1786. Secret Journals, IV. gress on this subject by Mr. Jay, Secretary of Foreign Affairs, Oc

209.

2 lbid.

dealt with their persons or property. Congress, as we have seen, at an early period of the war, committed the whole subject of restraining the persons of the Tories to the Colonies or States; and as Congress never assumed or exercised any jurisdiction over their property, it was of course left to be dealt with by the legislatures of the States, to whom Congress had declared that their several inhabitants owed allegiance.1 But as these persons, by adhering to the crown, might claim of the crown the rights and protection of British subjects, the propriety of confiscating or withholding their property would remain for solution, at the negotiation of the Treaty of Peace, as a question of general justice and equity, rather than of public law.

The interests of both of these classes of persons were too important to be overlooked. Three millions sterling were due from the inhabitants of the Colonies to merchants in Great Britain, at the commencement of the war. At the return of peace, the laws of five of the States were found either to prohibit the recovery of the principal, or to suspend its collection, or to prohibit the recovery of interest, or to make land a good payment in place of money.2

Resolve of June 24, 1776. Journals, II. 216. Ante, p. 52, note. 2 An act passed by the legislature of Massachusetts, November 9, 1784, suspended judgment for interest on British debts, until Congress should have put a construction upon the Treaty declaring that it was due. An act of

the State of New York, of July 12, 1782, restrained the collection of debts due to persons within the enemy's lines. Pennsylvania, soon after the peace, passed a law restraining the levy of executions. Virginia, at the time of the peace, had existing laws inhibiting the recovery of British debts. South

The purpose of the Treaty was to declare, that all bona fide debts, contracted before the date of the Treaty, and due to citizens of either country, remained unextinguished by the war; and consequently, that interest, when agreed to be paid, or payable by the custom, or demandable as damages for delay of payment, was justly due. Over this whole subject of foreign debts, the national sovereignty, of right, had exclusive control; for confiscation of the property of a national enemy belongs exclusively to the power exercising the rights of war; and therefore whatever State laws might have been passed during the war, exercising rights which belonged to the national sovereign, they could have no validity when that sovereign came to resume its control over the subject, and to stipulate that the right of confiscation, if it ever existed, should not be exercised. The State laws, however, existed, and remained in conflict with the Treaty, for several years, producing consequences to which we shall presently advert.

The fifth article of the Treaty was infringed by an act passed by the State of New York, authorizing actions for rent to be brought by persons who had been compelled to leave their lands and houses by the enemy, against those who had occupied them while the enemy were in possession, and declaring that no military order or command of the enemy should be pleaded in justification of such occupation.1

Carolina had made land a good payment, in place of money. (See Mr. Jay's Report.)

Passed March 17, 1783. Secret Journals, IV. 267.