Her proceedings in seducing away our negroes during the war were to the last degree infamous, and form an indelible stain on her annals.

But having done it, it would have been still more infamous to have surrendered them to their masters.

The reply to this may be, that they ought not then to have stipulated it. This is just; but still the inquiry is, whether they have stipulated it, and the odiousness of the thing, as applied to them, is an argument of weight against such a construction of general expressions in the treaty as would imply the obligation to restitution.

Odious things are not favored in the interpretation of treaties; and though the restoration of property is a favored thing, yet the surrender of persons to slavery is an odious thing, speaking in the language of the laws of nations.

The words of the article are, that his Britannic Majesty shall, with all convenient speed, and without causing any destruction or carrying away any negroes or other property of the American inhabitants, withdraw all his armies, &c.

There are two constructions of this article; one that the evacuation should be made without depredation, that is, without causing any destruction or carrying away any property, which continued to be such (having undergone no change by the laws of war) at the time of the evacuation; the other, that there was to be, besides a forbearance to destroy or carry away, a positive restitution of all property taken in the war, and at the time of the evacuation which then existed in kind.

In favor of the last construction is the most obvious sense of the words; and as it applies to the negroes merely as an article of property, the justice of restoring what had been taken away in many instances by unwarrantable means.

Against it, and in favor of the first construction, are these considerations.

1. That the expressions are, negroes and other property; which puts negroes, cows, horses, and all other articles of property, on the same footing, and considers them, if at all liable, equally liable to restitution, and all as having equally the common quality of property of the American inhabitants.

Could any thing be considered as property of the American inhabitants, at the time of the treaty, and in contemplation of the treaty, which, by the ordinary rules of the laws of war, had previously become the absolute property of the captors? Is there any thing which exempts negroes more than other articles of personal property, from capture and confiscation as booty? If there is not, why should negroes have been claimed under this article, more than the vessels which had been captured and condemned? Is that a probable sense of the treaty which would require such a restitution?

2. If negroes were objects of capture in war, the captor might proclaim their liberty when in his possession. If once declared free, could the grant be recalled? Could the British government stipulate the surrender of men made free to slavery? Is it natural to put such a construction upon general words, if they will bear another? Is not this, as it regards the rights of humanity, an odious sense?

3. The treaty will bear another construction-that which is put upon it by the British-a provision for greater caution against depredation or the carrying away of property not changed by the laws of war. It is observable, in confirmation of this, that there is no stipulation to restore, but negatively not to carry away; whereas, immediately after, in the same article, there follows a clause which stipulates that "archives, records, &c.," shall be restored and delivered up. This different mode of expression seems to denote a different sense in the two cases.

Let it be observed that I do not mean to advocate this sense in preference to the other. I have at different times viewed the matter in different lights, and our ablest lawyers differ concerning it. I even entertain a clear opinion that the article was intended to operate in our sense of it. But, still, this does not obviate the doubt as to its true legal signification.

All I mean to say is, that there is really a well-founded doubt as to the true legal construction; and, in such case, the acting of the other party, on a construction different from ours, could not be deemed such a clear manifest breach of treaty as to

justify retaliation. The point was merely a matter of amicable discussion and negotiation.

If this was a breach of the treaty, it is necessary to note that it was committed in 1783.

The affair of the posts is more embarrassing.

It is necessary, in the first place, to settle when it became the duty of the British to surrender them. The stipulation is, that it shall be done "with all convenient speed." But from which of the treaties are we to date, the provisional or the definitive? The principle of this question is a point of great difficulty not settled either by the opinions of writers, or by the practice of·

nations.

I remember that I contended in Congress, shortly after the arrival of the provisional treaty, and when it was known that preliminaries had been signed between France and England, that the execution of the treaty was to date from this epoch, and on this position I grounded a motion to recommend to the States a compliance with the article.

But on the vote upon this motion, I was left alone, and Congress did not act upon the subject till after the arrival of the definitive treaty-that is, 1784.

This amounts to a construction by our government, that the execution was to date from the definitive treaty.

Lord Grenville contends with Mr. Jay for the same position, and urges, consequently, that it was not till after the notice of the ratification by us in England, or, in other words, the exchange of ratifications there, that it could be deemed incumbent upon them to give orders for the evacuation of the posts; which orders could not well have been given before May, nor have arrived in Canada till July.

After the course pursued by us, as already stated, it is difficult to see what can be objected to this construction. It is true the Atlantic posts were evacuated shortly after the provisional treaty; but it may be justly observed, upon this, that it was done for mutual convenience, and in the spirit of conciliationnot on the score of strict obligation; that, however inconsistent with the spirit of an act for restoring peace, it might have been

to have detained places in the heart of our settled country; being, besides, the capitals of the States in which they were, there was entire liberty to pursue a stricter rule as to the Western posts, some delay concerning which could not have been of material inconvenience to us; and that it was reasonable to pursue the strict rule here, to see what course the execution of the treaty was likely to take on our part.

But our dilemma is this: that if the delay of orders for evacuating the posts till after the exchange of ratifications of the definitive treaty, was a breach of the treaty, as contended for by Mr. Jefferson, the delay of acting upon the fifth article till after the ratification of the definitive treaty in this country, was equally a breach of the treaty on our part, and a prior, at least, a cotemporary breach.

Let us now see how, in point of time, the breaches will stand on our part. In this I shall not aim at an accurate enumeration, but shall select particular instances.

1. An act of New-York for granting a more effectual relief in cases of certain trespasses, passed the 17th of March, 1783.

This act takes away from any person within the British lines who had occupied, injured, or destroyed the property, real or personal, of an inhabitant without the lines, the plea of a military order for so doing; consequently, the justification which he might derive from the laws and usages of war, in contravention of the treaty of peace.

It is true, it preceded for a short time the arrival of the provisional treaty in this country; but it is notorious that it was in expectation and contemplation of the event.

This circumstance of priority of time, leads Mr. Jefferson to put this act out of the question; but in fair reasoning this is hardly admissible.

It continued to have, in fact, an extensive operation, from the time of the evacuation of the city of New-York till the repeal of the exceptionable clause, by an act of the 4th of April, 1787.

It hardly appears a satisfactory answer to this, to say, as Mr.

Jefferson has done, that the courts did not sanction the principle of the act; that in one instance, the case of Rutgers and Waddington, the mayor's court overruled it.

The fact is, that from the very express terms of the act, a general opinion was entertained, embracing almost our whole. bar, as well as the public, that it was useless to attempt a defence; and, accordingly, many suits were brought, and many judgments given, without the point being regularly raised, and many compromises were made, and large sums paid, under the despair of a successful defence. I was for a long time the only practicer who pursued a different course, and opposed the treaty to the act; and though I was never overruled in the Supreme Court, I never got my point established there. I effected many easy compromises to my clients, afraid myself of the event in the Supreme Court, and produced delays till the exceptionable part of the act was repealed. The Supreme Court frequently, in a studied manner, evaded the main question, and turned their decision upon the forms of pleading.

"Tis perhaps enough for the other party to say that here was a positive law of a state, unrepealed, and acted upon so as in fact to defeat, in a material degree, the operation of the treaty. The injury was suffered, and there ought never to have existed so critical a conflict between the treaty and the statute law of a

state.

If the operation of this law was a breach of the treaty, it was a breach from the first moment of the ratification of the provisional articles till the 4th of April, 1787. Nothing could be anterior to it.

Another act of the 4th of May, 1784, provided a mode by which the foregoing act should have effect upon the estates of absentees, which in several instances produced judgments without opportunity of defence. It is to be observed that the British commander-in-chief early remonstrated against this act as inconsistent with the treaty, and yet it continued unrepealed.

Another act of New-York, of the 12th of May, 1784, in the strongest and most express terms, confirms all confiscations before